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Duncan E. Simpson v. Illinois Department of Employment Security

April 4, 2012

DUNCAN E. SIMPSON, PLAINTIFF,
v.
ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge

E-FILED

Wednesday, 04 April, 2012 04:33:12 PM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on Plaintiff's Motion to File Amendment (#18). Because Plaintiff did not file objections to the Report and Recommendation (#15) filed by Magistrate Judge David G. Bernthal, he waived any challenge to the Report and Recommendation. Therefore, his Motion to File Amendment (#18) is DENIED.

BACKGROUND

On August 22, 2011, Plaintiff, Duncan E. Simpson, filed a pro se Complaint (#1) against Defendant, Illinois Department of Employment Security. Plaintiff alleged that he was discriminated against because of his disability, "sleep apnea," which caused him to be written up and disciplined for sleeping on the job. On November 14, 2011, Defendant filed a Motion to Dismiss (#11) and a Memorandum in Support (#12). Defendant stated that it assumed that Plaintiff's action was brought pursuant to the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. Defendant argued that Plaintiff failed to state a claim upon which relief can be granted because he did not allege sufficient facts to raise even a reasonable inference that Defendant is liable under the ADA. Defendant noted that Plaintiff pleaded only that he was disciplined for sleeping on the job. Defendant also argued that Plaintiff failed to exhaust administrative remedies as required by the ADA, noting that Plaintiff's Complaint does not reflect that Plaintiff filed a charge with the EEOC, nor did he attach a "Right to Sue" letter to the Complaint.

A Notice (#14) was sent to Plaintiff on November 14, 2011. The Notice stated:

NOTICE IS HEREBY GIVEN that a case-dispositive motion (motion to dismiss) has been filed. See Fed. R. Civ. Pl 12(b)(6) . . . . Please be advised that you have fourteen (14) days from the date of filing to respond to the motion. If you do not respond, the motion, if appropriate, shall be granted and the case will be terminated without a trial. See, generally, Lewis v. Faulker, 689 F.2d 100 (7th Cir. 1982); Timms v. Frank, 953 F.2d 281 (7th Cir. 1992). Under the court's local rules, a motion is deemed to be uncontested if no opposing brief is filed. See L.R. CDIL 7.1(B).

Plaintiff did not file a response to the Motion to Dismiss.

On February 3, 2012, more than two months after Plaintiff's response to the Motion to Dismiss was due, a Report and Recommendation (#15) was filed by Magistrate Judge David G. Bernthal. Judge Bernthal stated that a review of Plaintiff's pro se Complaint revealed that the allegations were somewhat sketchy. Judge Bernthal noted, however, that the court should have some patience with pro se litigants and their limited drafting skills.

Judge Bernthal then stated that the second basis for the Motion to Dismiss provided a more significant problem for Plaintiff. Judge Bernthal stated:

There is no allegation that a charge was ever filed with the EEOC. No right to sue letter is referenced in or attached to the Complaint. Defendant is correct that Plaintiff cannot pursue the claim in this case unless he has first exhausted his administrative remedies. Failure to exhaust is a proper basis for dismissal. The authority cited by Defendant is controlling and mandates dismissal.

Judge Bernthal therefore recommended that Defendant's Motion to Dismiss be granted and Plaintiff's Complaint be dismissed. Judge Bernthal also stated that the parties were advised that "any objection to this recommendation must be filed in writing with the Clerk within 14 days after being served with a copy of this Report and Recommendation." He stated that "[f]ailure to object will constitute a waiver of objections on appeal," citing Video View, Inc. v. ...


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