IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________

DERRICK F. DEPRIEST, ) ) Plaintiff, ) v. ) No. 2:19-cv-02517-JTF-cgc ) IRT MANAGEMENT, ) ) Defendant. ) _____________________________________________________________________________

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND DISMISSING CASE _ _____________________________________________________________________________

Before the Court is Plaintiff Derrick F. DePriest’s pro se Complaint against Defendant IRT Management filed on August 6, 2019. (ECF No. 1.) Plaintiff also filed a Motion seeking leave to proceed in forma pauperis, (ECF No. 2), which was granted on September 25, 2019. (ECF No. 7.) The Magistrate Judge, upon screening Plaintiff’s Complaint, entered a Report and Recommendation suggesting dismissal of the Complaint for failure to state a claim upon which relief may be granted. (ECF No. 8.) No objections were filed by Plaintiff. For the reasons below, the Court ADOPTS the Magistrate Judge’s Report and Recommendation to DISMISS Plaintiff’s Complaint. FACTUAL HISTORY In the Report and Recommendation, the Magistrate Judge provides, and this Court adopts and incorporates, proposed findings of fact in this case. (ECF No. 8, 2.) LEGAL STANDARD Congress passed

(b) “to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrates.” United States v. Curtis,

(6th Cir. 2001). Pursuant to the provision, magistrate judges may hear and determine any pretrial matter pending before the Court, except various dispositive motions.

(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R. Civ. P.

72(b)(1); see also Baker v. Peterson,

(6th Cir. 2003). Any party who disagrees with a magistrate’s proposed findings and recommendation may file written objections to the report and recommendation. Fed. R. Civ. P. 72(b)(2). The district court reviews a magistrate judge’s proposed findings and recommendation. The standard of review that is applied depends on the nature of the matter considered by the magistrate judge. See Baker v. Peterson,

(6th Cir. 2003) (citations omitted) (“A district court normally applies a ‘clearly erroneous or contrary to law’ standard of review for nondispositive preliminary measures. A district court must review dispositive motions under the de novo standard.”). Upon review of the evidence, the district court may accept, reject, or modify the proposed findings or recommendations of the magistrate judge. Brown v. Board of Educ.,

(W.D. Tenn. 2014); see also

(b)(1). The court “may also receive further evidence or recommit the matter to the [m]agistrate [j]udge with instructions.” Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv,

, at *3 (W.D. Tenn. Mar. 11, 2015). “Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee notes.

(e)(2) Screening Pursuant to Local Rule 4.1, service will not issue in a pro se case where the pro se plaintiff has been granted leave to proceed in forma pauperis until the complaint has been screened under

(e)(2)(B). LR 4.1(b). Specifically, courts are required to screen in forma

pauperis complaints and dismiss any complaint, or portion thereof, if the allegation of poverty is untrue or 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.

(e)(2). Standard of Review for Failure to State a Claim In assessing whether Plaintiff’s Complaint states a claim upon which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal,

, 678–79 (2009), and Bell Atlantic Corp. v. Twombly,

, 555–57 (2007), are applied. Hill v. Lappin,

(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,

(6th Cir. 2011) (alteration in original) (quoting Iqbal,

). Additionally, although not free from basic pleading requirements, pro se pleadings are “held ‘to less stringent standards than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Curtin,

(quoting Martin v. Overton,

(6th Cir. 2004)). Even so, pro so litigants must adhere to the Federal Rules of Civil Procedure, and the Court cannot create a claim that has not been spelled out in a pleading. Falkner v. United States, No. 11-2982-STA-cgc,

, at *16 (W.D. Tenn. July 6, 2012). ANALYSIS The Court agrees with and adopts the Magistrate Judge’s recommendation that Plaintiff’s Complaint be dismissed for failure to state a claim upon which relief can be granted. Plaintiff alleges violations of the ADEA, which prohibits an employer from “fail[ing] or refus[ing] to hire

or to discharge any individual or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

(a)(1). Here, Plaintiff alleges that he was forty years old at the time of the alleged discrimination. (ECF No. 1, 4.) However, Plaintiff has not alleged any facts demonstrating that he was discriminated against on the basis of his age or that his age was a factor in any alleged discriminatory conduct. Accordingly, the Court ADOPTS the Magistrate Judge’s recommendation that any claims of age discrimination be dismissed and that Plaintiff’s Complaint be dismissed pursuant to Section 1915 for failure to state a claim upon which relief may be granted. The Court also agrees with the Magistrate Judge’s recommendation that the Court certify, pursuant to

(a)(3), that Plaintiff may not appeal the above determination in forma

pauperis because such an appeal would not be taken in good faith. Plaintiff did not object to the Report and Recommendation. Under

(a)(3), “[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.”

(a)(3). “The good faith standard is an objective one” and considers whether the litigant seeks appellate review of any nonfrivolous issue. Beard v. Memphis, TN Crim. & Judicial Sys., No. 17- 2184-STA-cgc,

, at *8 (W.D. Tenn. June 16, 2017). Additionally, courts hold that it would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the defendant, while simultaneously finding that the claim has sufficient merit to support an appeal in forma pauperis.

. The same considerations that favor dismissal of Plaintiff’s Complaint also compel the conclusion that an appeal here would be frivolous and, thus, not taken in good faith. See

. Accordingly, this Court certifies, pursuant to

(a), that an in forma pauperis appeal in this case by Plaintiff would not be taken in good faith, and thus, may not be taken.

CONCLUSION Upon a de novo review, the Court hereby ADOPTS the Magistrate Judge’s Report and Recommendation to DISMISS Plaintiff’s claim with prejudice for failure to state a claim upon which relief may be granted. The Court CERTIFIES that Plaintiff may not appeal the determination herein in forma pauperis.

IT IS SO ORDERED this 2nd day of July, 2020. s/John T. Fowlkes, Jr. JOHN T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE