Opinion
7:24-CV-43-BO
05-09-2024
MYLANDIA A. WESLEY, Plaintiff, v. PAPERFOAM PACKAGING USA, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff Mylandia Wesley's (“Wesley”) application to . proceed in forma pauperis, [DE-2], and for frivolity review of the complaint, [DE-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Wesley has demonstrated appropriate evidence of inability to pay the required court costs, and accordingly, the application to proceed in forma pauperis is allowed. On frivolity review, it is recommended that Wesley's prospective Title VII and First Amendment retaliation claims against all Defendants be dismissed with prejudice; that Wesley's prospective 42 U.S.C. § 1981 claims against Paperfoam, Ford, and Derkman for racial discrimination, hostile work environment, and retaliation be allowed to proceed; that Wesley's prospective 42 U.S.C. § 1981 claims against Martin for racial discrimination and hostile work environment be dismissed without prejudice, but that the claim for retaliation be allowed to proceed; and that Wesley's state law claims be allowed to proceed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
To state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Wesley is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.-, Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In interpreting a pro se complaint the court's task is not to discern the plaintiffs unexpressed intent, but what the words in the complaint mean. Atkinson v. Nat'l Credit Sys., Inc., No. 5:23-CV-640-D, 2024 WL 1309185, at *1 (E.D. N.C. Mar. 27, 2024) (citing Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006) (en banc) (holding that a “liberal interpretation” of a complaint does not warrant a “complete rewriting”) & Brock v. Carroll, 107 F.3d 241, 243 n.3 (4th Cir. 1997)).
II. FACTUAL BACKGROUND
Wesley filed a form complaint containing allegations of employment discrimination and violations of various federal and state laws in a fill-in-the-blank format supplemented with a handwritten narrative. Compl. [DE-1], Wesley also attached an extensive typewritten narrative to the complaint, which provides the substance of her claims. [DE-1-1]. In her filings, Wesley alleges that she was employed by Defendant Paperfoam Packaging USA from April 2017 to October 2023, and that during that time, Paperfoam, through its Chief Operating Officer (“COO”), Defendant Malcolm Ford, Chief Executive Officer (“CEO”), Defendant Willem Derkman, and Plant Manager, Defendant Jeffery Martin, violated her constitutional rights and broke several federal and state laws. Id. Specifically, Wesley alleges that Paperfoam, Ford, and Derkman discriminated against employees based on their race, color, and sex, and allowed other employees to do the same; that Paperfoam and Ford failed to protect female employees from sexual harassment; that Paperfoam would allow white and Dutch employees to harass Black employees; that Paperfoam and Ford fired Wesley “because [she] wasn't going to allow them to continue the discrimination”; that Paperfoam and Ford violated multiple contracts, including employment contracts and “several verbal promises and contracts”; that Martin lied and falsified information given in a police report so that Wesley would be arrested and charged with felony breaking and entering and larceny; that Paperfoam inflicted emotional distress by having Wesley “conduct[] . fraudulent activities in preparation for [] audits ... [and] [t]he pressure was to the point they would say if [the company] did not pass these audits then [the employees] can all just pack it up and go home because [they] would be fired, and the plant would be shut down”; that Paperfoam caused Wesley to lose wages by wrongfully terminating her position, and Martin's police report caused Wesley to be fired from her DoorDash job and prevented Wesley from being promoted by Walmart; that Paperfoam and Ford defamed and slandered Wesley by telling vendors and others that she was fired for misconduct, not following policy, and committing two felonies; that Paperfoam and Ford wrongfully terminated Wesley without cause, after offering her a severance agreement that would require her to not report any claims against them; that Paperfoam, Ford, and Derkman paid unequal wages based on race, sex, and color; that Ford sexualized and harassed Black female employees; that “[m]inorities were targeted for disparate treatment because of their gender and race and [were] forced to do more task[s], get paid less money for the same job across the board with having more on the job experience”; that Paperfoam created “a hostile workplace that was amplified by ten” when Dutch colleagues visited the facility; that Paperfoam and Ford violated Black and Hispanic employees' First Amendment rights by treating them adversely after they complained of discrimination or other ill treatment; that Ford has committed “[n]egligent misrepresentation” by lying to and about Black and Hispanic employees, lying about the terms of Wesley's termination, and lying about the terms of his work visa; that Paperfoam and Ford bribed Wesley “with the intent to commit corruption” so that she would not continue to complain about alleged “breaking of the labor laws and discriminatory acts against minorities”; that Ford would use racial slurs to describe Black and Hispanic employees; and that Paperfoam and Ford have committed fraud by “using [a former employee's] name a year and [a] half after firing her on the [company] credit card, on the car insurance, and a few other things,” and using Wesley's name, date of birth, social security number, and other personal information to conduct business without her authorization. Id. Wesley seeks 1.2 million in damages for these alleged injuries, including back pay, “mental anguish damages,” “physical and emotional distress damages,” and “humiliation and embarrassment damages”; punitive damages; and dismissal of her pending criminal charges. Compl. [DE-1] at 2.
Wesley names both Paperfoam Packaging and Paperfoam Packaging, USA as defendants; the undersigned will refer to them collectively as “Paperfoam.”
In her typewritten narrative, Wesley identifies two Paperfoam employees named “Jeff': a Plant Manager and a Quality Control Leader. [DE-1-1] at 6. Wesley does not clarify which of these employees is Defendant Jeffery Martin but based on the nature of her allegations involving Martin, it appears that the defendant is the Plant Manager. See Id. at 14-15.
III. DISCUSSION
A. The Federal Claims
Reading the complaint charitably, it appears that Wesley attempts to state claims for . various violations of Title VII, various violations of 42 U.S.C. § 1981, and First Amendment retaliation under 42 U.S.C. § 1983. This Recommendation briefly discusses each claim below.
1. Title VII and 42 U.S.C. § 1981 Claims
Turning first to Title VII, Wesley's claims that Defendants discriminated against her based on her race, sex, and color are frivolous. To begin with, to the extent that Wesley alleges any Title VII claims against any individual Defendants, these claims should be dismissed. See Williams-Grogans v. DeJoy, No. 5:22-CV-189-FL, 2022 WL 10208561, at *2 (E.D. N.C. Aug. 23, 2022) (citing Lissau v. S. Food. Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (concluding Title VII forecloses individual liability)), adopted by 2022 WL 10146076 (E.D. N.C. Oct. 17, 2022).
Most significantly, Wesley has failed to attach a right to sue notice to her complaint or otherwise allege that she has exhausted her purported claims under Title VII. See Washington v. Comedy Club Raleigh LLC, No. 5:24-CV-62-D, 2024 WL 1472783, at *2 (E.D. N.C. Mar. 5,2024) (“Washington attached a right-to-sue notice from the EEOC dated November 5, 2023 to his complaint, demonstrating that he exhausted his administrative remedies and timely filed his lawsuit”), adopted by 2024 WL 1468974 (E.D. N.C. Apr. 4, 2024); Allen v. Kitchen, No. 5:21-CV-293-BO, 2022 WL 2651841, at *1 (E.D. N.C. July 8, 2022) (dismissing Title VII claim on frivolity review for failure to exhaust remedies with the EEOC); Reaves v. Faulkner, No. 7:22-CV-40-FL, 2022 WL 19236195, at *6 (E.D. N.C. Oct. 12,2022) (“Plaintiff has not alleged that she exhausted her administrative remedies by filing a charge with the EEOC prior to bringing this action .... Accordingly, Plaintiffs Title VII claim should be dismissed for failure to exhaust administrative remedies.”), adopted by 2023 WL 2614573 (E.D. N.C. Mar. 23, 2023). Given that Wesley's employment was terminated in October 2023 and Defendants' alleged misconduct took place on or before that date, any Title VII claims she might now hope to make are likely time-barred, as an individual seeking recovery under Title VII must file a charge with the EEOC within 180 days of the alleged unlawful employment practice (or 300 days if the proceeding was initiated “with a State or local agency with authority to grant or seek relief from such practice”). Gates v. Waffle House Corp., No. 4:18-CV-00140-BO, 2019 WL 613555, at *3 (E.D. N.C. Jan. 9, 2019) (citing and quoting 42 U.S.C. 2000e-5(e)(1)), adopted by 2019 WL 615364 (E.D. N.C. Feb. 13, 2019). Consequently, it is recommended that any prospective Title VII claims be dismissed with prejudice as to all Defendants.
With respect to § 1981, while unartfully done, Wesley has alleged facts sufficient to survive frivolity review regarding intentional racial discrimination, creation of a hostile work environment, and retaliation for Wesley's workplace-related complaints. Section 1981 provides a cause of action against private parties who deprive others of the power to make and enforce contracts based on race, including employment contracts. Benjamin v. Sparks, 173 F.Supp.3d 272, 282 (E.D. N.C. 2016) (citing 42 U.S.C. § 1981; Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975)). To violate the statute, a defendant's actions must be both purposeful and racially discriminatory. Id. (citing Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 & n.7 (4th Cir. 2002); Spriggs v. Diamond Auto Glass, 165 F.3d 1015,1018-19 (4th Cir. 1999); Pearsall v. Child Advoc. Comm 'n of Lower Cape Fear, Inc., No. 7:98-CV-200-BR, 2000 WL 33682693, at *6-7 (E.D. N.C. Feb. 15,2000)).
To state a claim for racial discrimination under § 1981, the plaintiff must demonstrate “some affirmative link to causally connect the actor with the [intentional] discriminatory [adverse employment] action.” Id. at 283 (citing Hawthorne v. Va. State Univ., 568 Fed. App'x 203, 20405 (4th Cir. 2014) (per curiam)). In analyzing whether a plaintiff has plausibly alleged sufficient individual action to allow a § 1981 racial discrimination claim to proceed, courts may examine whether the individual defendant had the capacity to terminate the plaintiffs employment. Id. (citing Carson v. Giant Food, Inc., 187 F.Supp.2d 462, 483 (D. Md. 2002)). Courts may also examine whether the plaintiff has plausibly alleged direct evidence of the defendant's racially discriminatory animus and has shown that the individual defendant took part in the adverse employment action. Id. (citing Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005)).
In the instant case, Wesley alleges that the Defendants intentionally discriminated against her by failing to promote her or raise her pay despite increasing her job responsibilities and providing such opportunities to white employees with poorer job performance, and ultimately firing her for complaining about the alleged discrimination that she experienced and witnessed at Paperfoam. [DE-1-1] at 4-34. From the facts alleged, Ford (the COO), Derkman (the CEO), and Martin (the Wilmington Plant Manager) all had the authority to terminate Wesley's employment, but it seems that only Ford and Derkman were involved in hiring, firing, and payroll decisions, and only Ford and Derkman fielded Wesley's complaints about the unequal treatment and pay of minority employees; Wesley's only claim involving Martin concerns actions taken after her position at Paperfoam had been terminated. Id. Thus the facts allege enough individual racially discriminatory actions taken by Defendants Ford and Derkman to bring § 1981 racial discrimination claims against them and should be permitted to proceed, but any possible § 1981 racial discrimination claim against Defendant Martin should be dismissed without prejudice. See Gates, 2019 WL 613555, at *4 (sufficient individual discriminatory action on frivolity review where defendants failed to provide the plaintiff with mandatory training and certification, held her wholly accountable for cash drawer shortages, terminated her after two “write-ups,” and scheduled her to work with an employee who threatened to stab her).
To bring a hostile work environment claim under § 1981, a plaintiff must show: (1) unwelcome conduct; (2) that is based on race or color; (3) that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment; and (4) is imputable to the employer. Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011). In determining whether the offensive conduct can be attributed to discrimination against the employee's protected status, courts should view the behavior in light of the social context surrounding the actions. Strothers v. City of Laurel, Maryland, 895 F.3d 317, 329 (4th Cir. 2018). While a connection must exist between the animus and conduct, harassment need not come with statements of animus to be actionable. See id. at 330-31 (finding a “connection between animus and conduct may be inferred from the totality of the circumstances”); see also Oncale, v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) (instructing courts in harassment cases to apply “common sense” and “appropriate sensitivity to social context”). An inference of unlawful discrimination may be appropriate when an employee has a reasonable belief that racial discrimination motivated the actions of an immediate supervisor or coworker. See Strothers, 895 F.3d at 329 (finding an employee could have reasonably believed they were being mistreated because of race where they knew a prior history of racial harassment existed, they were the only Black subordinate employee, and they were the only employee being closely surveilled and scrutinized despite good job performance).
Here, Wesley does not allege much direct evidence of racial animus, but for the purpose of frivolity screening under § 1915, she has stated an actionable claim for hostile work environment based on a reasonable inference of racial discrimination. Wesley alleges, inter alia, that white employees were “held to a lower standard” than Black and Hispanic employees, and provides several examples; Black and Hispanic employees were “laughed and mocked at for requesting anything over $15 an hour to the point they wouldn't even negotiate,” while less qualified white employees were paid more and reprimanded less; Black and Hispanic employees were “mocked with inappropriate comments” about their race, and Defendant Ford, Paperfoam's COO, would even refer to Black male employees as “Gizas” in the workplace; and when Wesley attempted to speak with both Ford and Derkman and Human Resources about the disparate treatment of minority workers, her complaints were not taken seriously and she was eventually fired because she “wasn't going to allow them to continue the discrimination.” [DE-1-1] at 4-34. These alleged facts, accepted as true, plausibly suggest some ambiguity about the true motivation behind Defendants Ford and Derkman's behavior toward Wesley that altered the conditions of her employment. See Gates, 2019 WL 613555, at *4 (hostile work environment claim survived frivolity review where the plaintiff was one of only five white employees on a twenty-person staff and provided examples of her being singled out and treated differently). However, all misconduct attributed to Defendant Martin occurred after Wesley's position at Paperfoam was terminated. Accordingly, it is recommended that Wesley's § 1981 claims for hostile work environment against Paperfoam, Ford, and Derkman be allowed to proceed, and that any such claim against Martin be dismissed without prejudice.
Finally, to establish a prima facie case of retaliation under § 1981, a plaintiff must prove that (1) she engaged in protected activity, (2) her employer took an action against her which a reasonable employee would find materially adverse, and (3) the employer took the materially adverse employment action because of the protected activity. Benjamin, 173 F.Supp.3d at 286 (citing Boyer-Liberto, 786 F.3d at 281-84; Burlington N. & Santa Fe Ry., 548 U.S. at 67-70; Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007); Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180,188 (4th Cir. 2004); Price v. Thompson, 380 F.3d 209,212 (4th Cir. 2004)). Courts have taken an expansive view of protected oppositional activity, including “voicing one's opinions in order to bring attention to an employer's discriminatory activities,” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998), and “complain[ing] to [one's] superiors about suspected violations,” Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 54344 (4th Cir. 2003).
Wesley alleges that she repeatedly and consistently identified, spoke against, and attempted to rectify racism that she experienced and witnessed at Paperfoam. [DE-1-1] at 4-34. She further alleges that, although Ford claimed to have fired her because she “just talked too much and was way too aggressive for the Dutch employees to handle,” his explanation was mere pretext because Paperfoam offered her a Severance Agreement, signed by Derkman, which expressly stated that in return for compensation at separation, Wesley would “agree to release and forever discharge [Paperfoam] . . . from any and all claims,” and the same week she was fired, Martin called the police when she attempted to enter the facility to retrieve her belongings; her son, who also works at Paperfoam, was taken off of salary pay; her former coworkers on the Mixroom team started experiencing hostile treatment; and the company revoked the fifty-cent pay increase Wesley had previously approved for Hispanic packers. Id. at 11-13. These alleged facts are sufficient to state a claim under § 1981 for retaliation against Paperfoam, Ford, Derkman, and Martin, and for these reasons, the prospective claim should be allowed to proceed.
2. First Amendment Retaliation
Wesley attempts to state a claim for First Amendment retaliation under 42 U.S.C. § 1983. In particular, she alleges that Black and Hispanic employees were mocked for complaining about the discrimination they faced at Paperfoam; were denied raises, vacation time, and sick days after lodging complaints; and were heavily scrutinized by Ford after bringing their grievances to his attention. [DE-1-1] at 28-29.
“The First Amendment protects not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.” Johnson v. Town of Smithfield, No. 5:23-CV-349-D, 2024 WL 1336466, at *20 (E.D. N.C. Mar. 28, 2024) (quoting Adams v. Trs. of the Univ, of N.C. -Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (quotation omitted)). Plaintiffs may vindicate this right under § 1983 if they can first show that the alleged deprivation was committed by a person acting under color of state law and plausibly allege the personal involvement of a defendant. Id. at *20 (first citing West v. Atkins, 487 U.S. 42,48 (1988), then citing Iqbal, 556 U.S. at 676-77; Monell v. Dep'tof Soc. Servs., 436 U.S. 658,691-94 (1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)). Here, Wesley has failed to allege that any of the Defendants were acting under color of state law. Thus, the court should dismiss Wesley's First Amendment retaliation claim against all Defendants with prejudice.
B. The State Law Claims
Reading the complaint liberally, it appears that Wesley attempts to state numerous state law claims: defamation, slander, breach of contract, civil fraud, bribery, negligent misrepresentation, intentional infliction of emotional distress, and filing a false police report. Federal district courts may exercise supplemental jurisdiction over state law claims that are “so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” IP. by Newsome v. Pierce, No. 5:19-CV-228-M, 2020 WL 1231809, at *3 (E.D. N.C. Mar. 9, 2020) (quoting Johnson v. Town of Oak Island, No. 7:13-CV-231-BO, 2014 WL 1682151, at *1 (E.D. N.C. Apr. 28,2014) (alteration in original)). Whether federal and state law claims are part of the same case is determined by whether they “derive from a common nucleus of operative fact” and are “such that [plaintiffs] would ordinarily be expected to try them all in one judicial proceeding.” Id. (citing Hinson v. Northwest Fin. S.C., Inc., 239 F.3d 611, 615 (4th Cir. 2001)). Although supplemental jurisdiction has been described as flexible and claims need only revolve around a central fact pattern, it “does not encompass claims when one count is separately maintainable and determinable without any reference to the facts alleged or contentions stated in or with regard to the other count.” Id. (internal citations and quotation marks omitted).
Given that Wesley has stated sufficient § 1981 claims on frivolity review and her purported state law claims appear to “derive from a common nucleus of operative fact,” i.e., her employment at Paperfoam and termination thereof, it is recommended that the state law claims be allowed to proceed at this time. See id. Considering Wesley's pro se status and the extensive facts alleged in the complaint, any potential defenses to these claims are better evaluated on a fully briefed Rule 12 motion.
IV. CONCLUSION
For the reasons stated above, Plaintiff My landia Wesley's application to proceed in forma pauperis is allowed, and it is recommended that (1) Wesley's prospective Title VII and First Amendment retaliation claims against all Defendants be dismissed with prejudice; (2) Wesley's prospective 42 U.S.C. § 1981 claims against Paperfoam, Ford, and Derkman for racial discrimination, hostile work environment, and retaliation be allowed to proceed; (3) Wesley's prospective 42 U.S.C. § 1981 claims against Martin for racial discrimination and hostile work environment be dismissed without prejudice, but the claim for retaliation be allowed to proceed; and (4) Wesley's state law claims be allowed to proceed. IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff Mylandia Wesley. You shall have until May 23,2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e. g., 28 U.S .C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules); 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright, 766 F.2d at 846-47.