IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION LUCETTE GIBBS, Plaintiff, v. No. 26-cv-2152-BCL-cgc KROGER, Defendant.
REPORT AND RECOMENDATION Before the Court, pursuant to Administrative Order 2013-051, is Plaintiff Lucette Gibbs’ Complaint (D.E. # 2) filed on February 13, 2026 against Defendant Kroger. On May 8, 2026, the undersigned entered an order granting Plaintiff’s motion for leave to proceed in forma pauperis and ordering her to file, on or before May 22, 2026, an amended
complaint which complies with Fed. R. Civ. P. 8. (D.E. # 9) To date, Plantiff has not filed an amended complaint. The Court is required to screen in forma pauperis complaints and to dismiss any complaint, or any portion thereof, if the action: (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
1 The instant case has been referred to the United States Magistrate Judge by Administrative Order pursuant to the Federal Magistrates Act, 28 U.S.C. §§ 631-639. All pretrial matters within the Magistrate Judge’s jurisdiction are referred pursuant to 28 U.S.C. § 636(b)(1)(A) for determination, and all other pretrial matters are referred pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) for report and recommendation. 28 U.S.C. § 1915(e)(2). In assessing whether the complaint in this case states a claim on which relief may be
granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.’“ Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). “[P]leadings that . . . are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without
some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.”). Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the grounds for the court’s jurisdiction, … a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for the relief sought.” Fed. R. Civ. P. 8(a) Plaintiff does not indicate at paragraph 6 what is the alleged discriminatory
conduct that Defendant has committed. Plaintiff at paragraph 9 does not indicate what the basis is of the alleged discrimination. Paragraph 10 of the complaint which requests the facts of the case is completely blank. Plaintiff does not indicate at paragraph 14 when the Equal 2 Employment Opportunity Commission issued the Right to Sue letter. Plaintiff does not indicate what relief she seeks. Therefore, the complaint fails to state a claim for which relief may be granted. See, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (Dismissal is appropriate if the complaint does not contain “enough facts to state a
claim to relief that is plausible on its face”) For the foregoing reasons, it is RECOMMENDED that the Court DISMISS the action, in its entirety, for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
It is FURTHER RECOMMENDED, in the alternative, that the complaint be dismissed for lack of prosecution. Plaintiff was cautioned that a failure to file an amended complaint would result in a recommendation of dismissal of the case for failure to prosecute. (D.E. # 9, PageID 29) If a plaintiff fails properly to prosecute an action, it can be dismissed either pursuant to the Court's inherent power to control its docket, or involuntarily under Fed.R.Civ.P. 41(b). Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Boudwin v. Graystone Insurance Co., 756 F.2d 399 (5th Cir.1985). The Sixth Circuit has held that dismissal for failure to prosecute is warranted where the Court affords a plaintiff a reasonable period of time to comply with orders before the dismissal occurs, see Harris v. Callwood, 844 F.2d 1254 (6th Cir.1988); Sepia Enterprises, Inc. v. City of Toledo, 462 F.2d 1315 (6th Cir.1972) (per
curiam). In determining whether to dismiss a complaint for failure to prosecute, the Court generally looks to four factors for guidance: (1) whether the party's failure is due to willfulness, 3 bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Knoll v. American Telephone & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999). Typically, none of the
factors is outcome dispositive, and dismissal is entrusted to the discretion of the Court. Id. It is recommended that the first factor is met as it is Plaintiff’s fault for not prosecuting her case. Plaintiff has filed an amended complaint for screening as ordered. As to the third and fourth factors, it is recommended that they weigh heavily against the Plaintiff. The May 8th Order made it clear that dismissal of the case was under consideration by the Court.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION LUCETTE GIBBS, Plaintiff, v. No. 26-cv-2152-BCL-cgc KROGER, Defendant.
REPORT AND RECOMENDATION Before the Court, pursuant to Administrative Order 2013-051, is Plaintiff Lucette Gibbs’ Complaint (D.E. # 2) filed on February 13, 2026 against Defendant Kroger. On May 8, 2026, the undersigned entered an order granting Plaintiff’s motion for leave to proceed in forma pauperis and ordering her to file, on or before May 22, 2026, an amended
complaint which complies with Fed. R. Civ. P. 8. (D.E. # 9) To date, Plantiff has not filed an amended complaint. The Court is required to screen in forma pauperis complaints and to dismiss any complaint, or any portion thereof, if the action: (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
1 The instant case has been referred to the United States Magistrate Judge by Administrative Order pursuant to the Federal Magistrates Act, 28 U.S.C. §§ 631-639. All pretrial matters within the Magistrate Judge’s jurisdiction are referred pursuant to 28 U.S.C. § 636(b)(1)(A) for determination, and all other pretrial matters are referred pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) for report and recommendation. 28 U.S.C. § 1915(e)(2). In assessing whether the complaint in this case states a claim on which relief may be
granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.’“ Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). “[P]leadings that . . . are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without
some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.”). Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the grounds for the court’s jurisdiction, … a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for the relief sought.” Fed. R. Civ. P. 8(a) Plaintiff does not indicate at paragraph 6 what is the alleged discriminatory
conduct that Defendant has committed. Plaintiff at paragraph 9 does not indicate what the basis is of the alleged discrimination. Paragraph 10 of the complaint which requests the facts of the case is completely blank. Plaintiff does not indicate at paragraph 14 when the Equal 2 Employment Opportunity Commission issued the Right to Sue letter. Plaintiff does not indicate what relief she seeks. Therefore, the complaint fails to state a claim for which relief may be granted. See, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (Dismissal is appropriate if the complaint does not contain “enough facts to state a
claim to relief that is plausible on its face”) For the foregoing reasons, it is RECOMMENDED that the Court DISMISS the action, in its entirety, for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
It is FURTHER RECOMMENDED, in the alternative, that the complaint be dismissed for lack of prosecution. Plaintiff was cautioned that a failure to file an amended complaint would result in a recommendation of dismissal of the case for failure to prosecute. (D.E. # 9, PageID 29) If a plaintiff fails properly to prosecute an action, it can be dismissed either pursuant to the Court's inherent power to control its docket, or involuntarily under Fed.R.Civ.P. 41(b). Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Boudwin v. Graystone Insurance Co., 756 F.2d 399 (5th Cir.1985). The Sixth Circuit has held that dismissal for failure to prosecute is warranted where the Court affords a plaintiff a reasonable period of time to comply with orders before the dismissal occurs, see Harris v. Callwood, 844 F.2d 1254 (6th Cir.1988); Sepia Enterprises, Inc. v. City of Toledo, 462 F.2d 1315 (6th Cir.1972) (per
curiam). In determining whether to dismiss a complaint for failure to prosecute, the Court generally looks to four factors for guidance: (1) whether the party's failure is due to willfulness, 3 bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Knoll v. American Telephone & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999). Typically, none of the
factors is outcome dispositive, and dismissal is entrusted to the discretion of the Court. Id. It is recommended that the first factor is met as it is Plaintiff’s fault for not prosecuting her case. Plaintiff has filed an amended complaint for screening as ordered. As to the third and fourth factors, it is recommended that they weigh heavily against the Plaintiff. The May 8th Order made it clear that dismissal of the case was under consideration by the Court. Plaintiff has ignored the Court’s order and has failed to meaningfully participate in the case. Dismissal is appropriate pursuant to the Court’s inherent power to control its docket.
Accordingly, it is FURTHER RECOMMENDED that the Plaintiff’s Complaint be involuntarily dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) and the Court’s inherent power. The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should she seek to do so. The United States Court of Appeals for the Sixth
Circuit requires that all district courts in the circuit determine, in all cases where the appellant seeks to proceed in forma pauperis, whether the appeal would be frivolous. Twenty-eight U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in good faith is 4 whether the litigant seeks appellate review of any issue that is not frivolous. Id. It would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the defendants, but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court
to recommend dismissal of this case for failure to state a claim also compel the conclusion that an appeal would not be taken in good faith. It is therefore RECOMMENDED that the Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be taken in good faith and Plaintiff may not proceed on appeal in forma pauperis.
Signed this 27th day of May, 2026.
s/ Charmiane G. Claxton CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT. 28 U.S.C. § 636(b)(1)(C). FAILURE TO FILE SAID OBJECTIONS OR EXCEPTIONS WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER AND/OR FORFEITURE OF THE OPPORTUNITY TO RAISE OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL.