United States District Court, D. Kansas
SHEILA L. ARMOUR, Plaintiff,
UNIVERSAL PROTECTION SERVICES, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
22, 2017, Magistrate Judge Gerald L. Rushfelt issued a Report
and Recommendation (Doc. 5), recommending dismissal of this
lawsuit under 28 U.S.C. § 1915(e)(2)(B)(ii) because it
fails to state a claim upon which relief may be granted.
Judge Rushfelt explained in his Report and Recommendation,
plaintiff has the right to file objections to the Report and
Recommendation under 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72 within 14 days after service. Doc.
5 at 1. He also advised plaintiff that failing to make a
timely objection to the Report and Recommendation would waive
any right to appellate review of his proposed findings of
fact, conclusions of law, and recommended disposition.
Id. On June 22, 2017, the Clerk sent a copy of the
Report and Recommendation to plaintiff by both regular and
certified mail (Docket Entry for Doc. 5), thus accomplishing
service of the Report and Recommendation. See Fed.
R. Civ. P. 5(b)(2)(C) (providing that the court may
accomplish service by mailing the Report and Recommendation
“to [plaintiff's] last known address-in which event
service [was] complete upon mailing”); accord
ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1
(D. Kan. Oct. 16, 2014).
aggrieved party objects to the magistrate judge's report
and recommendation, the district judge assigned the case
“must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.”). For the Report and Recommendation
to be “properly objected to, ” plaintiff's
objection must “be both timely and specific.”
United States v. One Parcel of Real Prop., 73 F.3d
1057, 1060 (10th Cir. 1996). An objection is sufficiently
specific if it “focus[es] the district court's
attention on the factual and legal issues that are truly in
dispute.” Id. If plaintiff fails to make such
a proper objection, then she fails to preserve the objection
for appellate review. Id.
plaintiff timely filed her Objection to Judge Rushfelt's
Report and Recommendation on July 3, 2017. Doc. 8. And, her
Objection is sufficiently specific. The court thus conducts a
de novo review of Judge Rushfelt's Report and
Recommendation. When conducting this review, the court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge
. . . [or] may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28
U.S.C. § 636(b)(1). The court's review also takes
plaintiff's pro se status into account. Because plaintiff
brings this lawsuit pro se, the court construes her pleadings
liberally and holds them to a less stringent standard than
formal pleadings drafted by lawyers. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the
court cannot assume the role of plaintiff's advocate and
plaintiff's pro se status does not excuse her from
“the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Id.
Nor is plaintiff relieved from complying with the rules of
the court or facing the consequences of noncompliance.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
and liberally construing plaintiff's Complaint, the court
agrees with Judge Rushfelt's conclusion that
plaintiff's Complaint fails to state a claim. Judge
Rushfelt recommended dismissal of the Complaint because it
contains, at best, only vague references to discrimination
and retaliation based on race and fails to allege any
misconduct motivated by her race. Doc. 5 at 6. In her
Objection, plaintiff asserts that the court should not adopt
Judge Rushfelt's recommendation because she has provided
the court with “sufficient evidence” to prove her
claims. Id. at 1. Plaintiff also asserts that
defendant's “act of switching companies before her
claim of work injury was resolved was an act of
retaliation.” Id. These assertions simply
reiterate the allegations in plaintiff's Complaint. The
Complaint just alleges that plaintiff was shocked by an
electrical device while working for defendant and that
defendant failed to respond to reports of her injury. See
generally Doc. 1. The Complaint does not allege facts
supporting a claim either for discrimination or retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. See Rivera v. Sw. Bell Tel.
Co., No. 13-1039-RDR, 2013 WL 2319395, at *2 (D. Kan.
May 28, 2013) (“A complaint alleging employment-based
discrimination, retaliation or harassment under Title VII
must ‘make at least minimal factual allegations on
every element' of the claim. Vague references to
discrimination, retaliation or harassment without any
indication that the alleged misconduct was motivated by
gender or another category protected by Title VII will be
insufficient to support an employment-based claim. . . . To
prove a disparate treatment claim, plaintiff must show [s]he
suffered an adverse employment action because of [her
race].” (citations omitted)); see also Land v.
Midwest Office Tech., Inc., 114 F.Supp.2d 1121, 1140 (D.
Kan. 2000) (listing elements of a retaliation claim under
Title VII). The court thus agrees with Judge Rushfelt's
report, and his recommendation. The court accepts, adopts,
and affirms his Report and Recommendation in its entirety.
IS THEREFORE ORDERED THAT plaintiff's Objection
(Doc. 8) is overruled and the court adopts Judge
Rushfelt's Report and Recommendation (Doc. 5) in its
entirety, and dismisses this action.