United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
pending before the Court is a Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge Robert W. Trumble. ECF No. 31. Pursuant to this
Court's Local Rules, this action was referred to
Magistrate Judge Trumble for submission of an R&R. On May
6, 2019, Magistrate Judge Trumble issued his R&R
recommending that the Court dismiss the Plaintiff's
amended complaint without prejudice and deny her remaining
motions as moot.
14, 2018, Wanda Letang (“Plaintiff”) filed a
complaint alleging discrimination against Robert L. Wilkie,
Jr. and the Department of Veterans Affairs Agency. ECF No. 1.
The same day, the Plaintiff filed a motion for leave to
proceed in forma pauperis and a motion to appoint
counsel. ECF Nos. 2, 3. The Court entered an Order referring
the matter to Magistrate Judge Trumble for issuance of a
R&R. ECF No. 5. Magistrate Judge Trumble issued his
R&R to dismiss the Plaintiff's complaint because the
Plaintiff did not provide proof that she first exhausted her
administrative remedies with the U.S. Equal Employment
Opportunity Commission (“EEOC”) under 42 U.S.C.
§ 2000e-5(b). ECF No. 6. The Plaintiff filed objections
to the R&R, attaching a final decision from the EEOC in
this matter. ECF No. 10-2. Thereafter, Magistrate Judge
Trumble entered an amended R&R to dismiss the
Plaintiff's complaint for failure to state a claim. ECF
No. 11. The Plaintiff timely filed her objections to the
amended R&R. ECF No. 17. After reviewing the
Plaintiff's objections, the Court adopted Magistrate
Judge Trumble's amended R&R and dismissed the
Plaintiff's complaint without prejudice. ECF No. 18. The
Plaintiff appealed the Court's judgment.
March 6, 2019, the Fourth Circuit Court of Appeals, dismissed
the Plaintiff's appeal for lack of jurisdiction, but
remanded the matter to the Court to allow the Plaintiff to
file an amended complaint. On April 8, 2019, the Plaintiff filed
an amended complaint [ECF No. 26], motion for leave to proceed
in forma pauperis [ECF No. 27] and motion to appoint
counsel [ECF No. 28]. On April 29, 2019, the Fourth
Circuit's mandate was entered. ECF No. 29. The same day,
the Court referred the matter to Magistrate Judge Trumble for
issuance of a R&R. ECF No. 30.
Standards of Review
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
conduct a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, this Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a plaintiff's right
to appeal this Court's order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984).
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, objections to Magistrate
Judge Trumble's R&R were due within fourteen days
after being served with a copy of the same. The R&R was
sent to the Plaintiff by certified mail, return receipt
requested, on May 6, 2019. ECF No. 31. The Plaintiff accepted
service on May 13, 2019. ECF No. 33. The Plaintiff filed her
objections on May 22, 2019. ECF No. 34. Accordingly, the
Court will review the portions of the R&R to which the
Plaintiff objects de novo.
Judge Trumble recommends that the Plaintiff's complaint
be dismissed because she does not “allege facts
sufficient to state all the elements of her claim.” ECF
No. 31 at 5. Specifically, Magistrate Judge Trumble found
that the Plaintiff fails to allege any facts that create the
reasonable inference that she performed her job
satisfactorily or that she was treated differently than
employees outside her protected class. Id. at 6.
Plaintiff objects to the R&R “in its
entirety.” ECF No. 34 at 1. The Plaintiff supports her
position by stating that “[t]he complaint states enough
facts that taken as true entitles” her to relief and
“[h]ow in  the world can this court know without
discovery whether  the facts taken in the complaint [are]
true.” Id. The Plaintiff has failed to present
the court with any direct or circumstantial evidence of
discrimination or to plead facts that could establish a prima
facie case of discrimination. The Plaintiffs complaint sets
out “naked assertions” largely “devoid of
further factual enhancements.” Iqbal, 556 U.S. at 678.
Therefore, the Plaintiffs objections are hereby
it is the opinion of the Court that Magistrate Judge
Trumble's Amended Report and Recommendation [ECF No. 31]
should be, and is, hereby ORDERED ADOPTED.
For the reasons more fully stated in the Report and
Recommendation, this Court ORDERS that the
Plaintiffs Amended Complaint [ECF No. 26] be
DISMISSED WITHOUT PREJUDICE and
STRICKEN from the Court's active docket.
The Court further ORDERS that the Plaintiffs
Motion for Leave to Proceed In Forma Pauperis [ECF
No. 27] and Motion to Appoint Counsel [ECF No. 28] are
DENIED AS MOOT.
Clerk is further DIRECTED to transmit copies
of this this Order to the pro se Plaintiff by