ATKINS v. WALMART et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ASHLEY ATKINS,
Plaintiff,
vs. 	Case No.: 3:26cv735/TKW/ZCB
WALMART, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Plaintiff proceeds pro se and in forma pauperis in this employment
discrimination action. 	After performing its screening duties under 28
U.S.C. 	§ 	1915(e)(2)(B), 	the 	Court 	identified 	several 	deficiencies 	in
Plaintiff’s second amended complaint (Doc. 11) and ordered Plaintiff to
correct those deficiencies by filing a third amended complaint. (Doc. 12).
Plaintiff has now filed a third amended complaint. (Doc. 13).
The Court must screen the third amended complaint to determine
if it is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from immune defendants. 28 U.S.C. §
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1915(e)(2)(B). Because the third amended complaint fails to state a claim
on which relief may be granted, this case should be dismissed.1
I. 	The Allegations in the Third Amended Complaint2
The third amended complaint lists two Defendants: 	(1) Walmart
and (2) Walmart Associates Inc. (“Walmart Associates”). 	Plaintiff’s
claims arise from his time as an employee of the Walmart at 1525 E. Nine
Mile Road in Pensacola. (Doc. 13 at 2-5).
Plaintiff worked for Walmart Associates from April 2022 to April
2025. 	During this employment, Walmart Associates subjected Plaintiff
to “severe sexual harassment” and “defamation.” 	(Id. at 5). 	Plaintiff
reported these actions to Walmart on multiple occasions but was ignored.
Rather than investigating, Walmart Associates began a “fury pattern [of]
retaliation” and subjected Plaintiff to “unwarranted discipline.” 	(Id. at
5-6).
1 Plaintiff has been provided multiple opportunities to amend after the
Court identified and explained deficiencies in his prior pleadings. (Docs.
10, 12). But the third amended complaint still contains deficiencies. See
Horton v. Gilchrist, 128 F.4th 1221, 1222 (11th Cir. 2025) (stating that
ordinarily, a pro se “plaintiff must be given at least one chance to amend
the complaint before the district court dismisses the action”).
2 Plaintiff’s allegations are assumed true at this stage. DeVillier v. Texas,
601 U.S. 285, 288 n.1 (2024).
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Plaintiff 	was 	terminated 	on 	April 	10, 	2025. 	Plaintiff 	claims
Defendants “falsely stated reason ‘respect for the individual’” is a pretext
because “others who violated policy weren’t terminated but applauded.”
(Id. 	at 	6). 	After 	Plaintiff 	was 	terminated, 	Defendants 	“change[d]
statements that was submitted to third parties and federal parties which
also said the statements were false and defamed.” 	(Id.). 	Plaintiff
suffered damages and emotional distress as a result.
Plaintiff asserts five counts against Defendants. 	Count 1 is a
wrongful termination claim under 42 U.S.C. § 2000e-2(a)(1) on grounds
of “discriminatory behavior and illegal complaints.” 	(Id. at 6). 	Count 2
is a retaliation claim under 42 U.S.C. § 2000e-3(a) for Plaintiff being
terminated after engaging “in a protected activity [of] reporting the
oppositional activity of sexual harassment and treatment.” (Id.). Count
3 is a sexual harassment hostile work environment claim under 42 U.S.C.
§ 2000e-2(a) and 29 C.F.R. § 1604.11(a)(3) for Defendants subjecting
Plaintiff to “sexual comments, advances, and sexual defamation” and
failing to take corrective actions. 	(Id. at 7). 	Count 4 is a disparate
treatment claim under 42 U.S.C. § 2000e-2(a) and 29 C.F.R. § 1607.11 for
Defendants subjecting Plaintiff to “intentional isolation and silencing to
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shift blame” and conceal “their misconduct.” 	(Id.). 	And Count 5 is a
defamation claim under Fla. Stat. §§ 836.01, 836.05 for Defendants
publishing “injurious false statement to third parties, federal agencies,
and fabricated records to” Plaintiff.3 (Id.).
For 	relief, 	Plaintiff 	seeks 	compensatory 	damages, 	punitive
damages, 	front 	and 	back 	pay, 	re-employment, 	and 	recognition 	of
Plaintiff’s key role with Defendants. (Id. at 11-12).
II. 	Statutory Screening Standard
To survive dismissal at the screening phase, “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) (cleaned up). The plausibility standard is met only where the facts
alleged enable “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 	Id. 	Plausibility means
3 This is a common law defamation claim because Plaintiff has no cause
of action under the cited statutes. See Turner v. Charter Schs. USA, Inc.,
No. 18-24005-CIV, 2020 WL 620392, at *14 n.14 (S.D. Fla. Jan. 14, 2020)
(concluding Fla. Stat. § 836.01 “is a criminal statute that does not give
rise to a civil cause of action”), adopted, 2020 WL 924253 (S.D. Fla. Feb.
26, 2020), aff’d 828 F. App’x 541 (11th Cir. 2020); Heinrich v. Cap. One
Bank, No. 24-60958-CIV, 2025 WL 3229990, at *6 (S.D. Fla. Mar. 24,
2025) (“[N]o violation of Section 836.05, the statute which creates the
crime of extortion[,] gives rise to a civil cause of action.” (cleaned up)).
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“more than a sheer possibility that a defendant has acted unlawfully.”
Id. 	“Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” 	Id. (cleaned up).
Whether a complaint states a plausible claim for relief is “a context-
specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. The Court is “not
bound to accept as true a legal conclusion couched as a factual allegation.”
Id. at 678 (cleaned up). 	And “bare assertions” that “amount to nothing
more 	than 	a 	formulaic 	recitation 	of 	the 	elements” 	of 	a 	claim 	“are
conclusory and not entitled to be assumed true.” 	Id. at 681 (cleaned up).
“While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” 	Id. at 679.
III. 	Discussion
A. The third amended complaint fails to plausibly allege any
federal claims for relief.
Plaintiff’s brief, vague, and conclusory allegations are insufficient
to plausibly allege a federal claim for relief against Defendants. 	As the
Supreme Court has made clear, a “plaintiff’s obligation to provide the
grounds of his entitlement to 	relief requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned
up). Yet that is all Plaintiff has provided in the third amended complaint.
Plaintiff’s vague assertions about sexual harassment, a hostile
work environment, retaliation, and false statements made at unspecified
times and by unspecified individuals—while providing little to no factual
detail to support any of these allegations—do not suffice. 	See Iqbal, 556
U.S. at 678 (stating that “naked assertions devoid of further factual
enhancement” are not sufficient to satisfy the plausibility standard
(cleaned up)); see also Moore v. San Carlos Park Fire Prot. & Rescue, 808
F. App’x 789, 797 	(11th Cir. 2020) (“[T]he allegations in the complaint
are so vague that it is practically impossible for a court to determine
whether 	Moore’s 	claims 	that 	she 	was 	suspended, 	demoted, 	and
constructively discharged are sufficiently related to any of the vague
factual allegations of discrimination . . . . Without connecting names or
dates to each incident, we cannot determine who committed the acts or
when they were committed.”).
Although pro se complaints are to be liberally construed, it is not
the Court’s role to “act as de facto counsel or rewrite an otherwise
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deficient pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d
903, 911 (11th Cir. 2020). 	Since the third amended complaint contains
nothing but vague and conclusory allegations, Plaintiff fails to plausibly
allege any federal claims for relief. 	See Iqbal, 556 U.S. at 678 (noting
that Rule 8 “does not require detailed factual allegations, but it demands
more 	than 	an 	unadorned, 	the-defendant-unlawfully-harmed-me
accusation” (cleaned up)).
Because 	Plaintiff has not 	corrected 	the 	deficiencies previously
identified and has provided only vague and conclusory allegations, the
federal claims in Plaintiff’s third amended complaint should be dismissed
for failure to state a claim. 	See Cornelius v. Bank of Am., NA, 585 F.
App’x 996, 1000 (11th Cir. 2014) (affirming dismissal and denial of leave
to amend where pro se plaintiff “already had been given an opportunity
to correct his pleadings” and stating that “[t]here is no indication that,
given a third bite at the apple, [the plaintiff] would correct the numerous
deficiencies in his complaint”).
B. Supplemental 	jurisdiction 	should 	be 	declined 	over
Plaintiff’s state law claims.
If the federal claims in Plaintiff’s third amended complaint are
dismissed as discussed above, then the remaining claims would be the
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state law claims. (Doc. 13 at 7). A district court may decline to exercise
supplemental jurisdiction over state law claims when it has “dismissed
all claims over which it has original jurisdiction.”4 28 U.S.C. § 1367(c)(3).
A court’s decision “to exercise [supplemental] jurisdiction after
dismissing every claim over which it had original jurisdiction is purely
discretionary.” 	Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009). The Eleventh Circuit has “encouraged” district courts to exercise
that discretion and decline supplemental jurisdiction when “the federal
claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370
F.3d 1086, 1089 (11th Cir. 2004). 	Thus, a court “will rarely err by
declining 	supplemental 	jurisdiction 	after 	the 	federal 	claims 	that
supported its jurisdiction are dismissed.” 	Silas v. Sheriff of Broward
Cnty., Fla., 55 F.4th 863, 866 (11th Cir. 2022). 	The stage of the federal
proceedings 	is 	important, 	with 	the 	“preference 	for 	declining
supplemental jurisdiction” being “particularly strong when the federal
claims have dropped out of the lawsuit in its early stages.” 	68V BTR
4 The third amended complaint invokes 28 U.S.C. §§ 1331, 1367(a) as the
bases of jurisdiction. (Doc. 13 at 4).
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Holdings, LLC v. City of Fairhope, 737 F. Supp. 3d 1222, 1239 (S.D. Ala.
2024).
Considering that the current case is in its infancy, the Court should
decline to exercise supplemental jurisdiction over Plaintiff’s state law
claims if the federal claims are dismissed as recommended. 	See Royal
Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22, 31-32 (2025) (“[I]f the
district 	court 	has 	dismissed 	all 	claims 	over 	which 	it 	has 	original
jurisdiction . . . supplemental jurisdiction persists, [but] the district court
need not exercise it: 	Instead, the court may (and indeed, ordinarily
should) kick the case to state court.”).
IV. 	Conclusion
Accordingly, it is respectfully RECOMMENDED that:
1. 	The federal claims in Plaintiff’s third amended complaint
(Doc. 13) be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to state a claim.
2. 	Supplemental jurisdiction over Plaintiff’s state law claims be
declined and such claims DISMISSED without prejudice to Plaintiff
pursuing them in state court
3. 	The Clerk of Court be directed to enter judgment accordingly
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and close the case.
At Pensacola, Florida, this 13th day of March 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must be
filed within fourteen days of the date of the Report and Recommendation.
Any different deadline that may appear on the electronic docket is for the
Court’s internal use only and does not control. 	An objecting party must
serve a copy of the objections on all other parties. 	A party who fails to
object to the magistrate judge’s findings or recommendations contained
in a report and recommendation waives the right to challenge on appeal
the 	district 	court’s 	order 	based 	on 	unobjected-to 	factual 	and 	legal
conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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