           IN THE UNITED STATES COURT OF APPEALS
                                            United States Court of Appeals
                    FOR THE FIFTH CIRCUIT            Fifth Circuit
                                                                                 F I L E D
                                                                                September 26, 2007
                                    No. 06-30894
                                  Summary Calendar                            Charles R. Fulbruge III
                                                                                      Clerk


BRIAN LEWIS

                                                  Plaintiff - Appellant
v.

DUANE HARDY; CANDACE DOBBINS; SANDRA HARDY; THADRION
JOHNSON; BEVERLY MOORE

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CV-652


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Brian Lewis appeals the district court’s judgment
dismissing his suit for failure to prosecute pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. Lewis argues that his suit was erroneously dismissed
because the district court based his failure to prosecute upon an incorrect default
judgment deadline. For the following reasons, we AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 06-30894

              I. FACTUAL AND PROCEDURAL BACKGROUND
      On March 3, 2005, pro se plaintiff-appellant Brian Lewis filed a Title VII
sex discrimination complaint in forma pauperis against defendant-appellee,
Duane Hardy, general manager of Southern Discount Pharmacy (“Southern
Discount”).    Lewis subsequently amended his complaint to add Southern
Discount employees Candace Dobbins, Sandra Hardy, Thadrion Johnson, and
Beverly Moore as additional defendants. At that time, summonses were issued
and forwarded to Lewis for the purpose of serving the named defendants, which
was accomplished in March of 2005.
      The basis for Lewis’s Title VII complaint was the termination of his
employment from Southern Discount on August 25, 2004, or sometime soon
thereafter.    Lewis filed a charge of sex discrimination with the Equal
Employment Opportunity Commission (“EEOC”) against Southern Discount on
November 18, 2004. Under the “particulars” section in the charge, he addressed
general manager Duane Hardy’s allegedly discriminatory actions, but never
specifically included Duane Hardy or the other defendants as respondents.
      In the charge, Lewis stated that he was subjected to a hostile work
environment because of his sex. According to Lewis, Duane Hardy constantly
told Lewis that he wanted to replace him with a female. Lewis contends that he
was the only male employee at Southern Discount at the time, and that a female
was hired to replace him. Lewis also recalled an altercation he had with Duane
Hardy on his final day at Southern Discount, in which Lewis alleged he was hit
on the back with a piece of paper, poked on the chest and neck, and jerked by the
arm and wrist.
      After assessing the matter, the EEOC determined that it should
discontinue the investigation and dismiss the charge “because it [was] not likely
that [its] investigation [would] support the allegations of the charge.” On
February 16, 2005, the EEOC provided Lewis with a signed dismissal of its

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                                  No. 06-30894

investigation and a notice of his right to file a private suit “against the
respondent(s) named in the charge” in federal or state court within 90 days of
receipt of the notice.
      On March 3, 2005, within the short 90-day statute of limitations, Lewis
instituted this action in federal district court against the defendants-appellees,
all of whom Lewis contends are employees of Southern Discount. However,
Lewis did not include Southern Discount as a defendant. None of the named
defendants-appellees ever acknowledged the complaint with an answer or
appearance in the district court, nor have they replied to this appeal. On April
13, 2005, the district court ordered that the case be referred to a magistrate
judge to handle all pre-trial matters, including evidentiary hearings and
submission of findings and recommendations.
      On July 21, 2005, after the case had been pending for over 120 days and
a review of the record revealed that issue had not been joined as to any of the
named defendants, the magistrate judge, in accordance with the local rules,
ordered Lewis to show cause, on August 10, 2005, as to why his lawsuit should
not be dismissed for failure to prosecute. Lewis appeared before the magistrate
judge on the designated date and time, and was specifically instructed to file for
default against the named defendants. However, rather than following those
instructions, Lewis filed a motion for default against Southern Discount. On
August 22, 2005, the magistrate judge issued an order denying Lewis’s motion
for default judgment against Southern Discount, but granted him until
September 16, 2006 to move for the entry of default against the named
defendants who were properly served. On December 22, 2005, the magistrate
judge submitted to the district court his Report and Recommendation,
incorrectly stating that the default judgment deadline given to Lewis was
September 16, 2005, and recommending dismissal. Referring to this 2005 date,
the magistrate judge reported that the ordered deadline had come and passed,

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and that Lewis had not sought entry of default. Therefore, pursuant to Rule
41(b) of the Federal Rules of Civil Procedure, the magistrate judge recommended
that the district court dismiss the action based on Lewis’s failure to comply with
the court’s order and instructions, namely the August 10, 2005 instructions to
take a default judgment against the named defendants, and the August 22, 2005
order to move for entry of default judgment by September 16, 2005. The Report
and Recommendation also included this warning to Lewis:
                   A party’s failure to file written objections to
                   the proposed findings, conclusions, and
                   recommendation contained in a magistrate
                   judge’s report and recommendation within
                   10 days after being served with a copy shall
                   bar that party, except upon grounds of
                   plain error, from attacking on appeal the
                   unobjected-to proposed factual findings and
                   legal conclusions accepted by the district
                   court, provided that the party has been
                   served with notice that such consequences
                   will result from a failure to object.

The magistrate judge’s Report and Recommendation was filed with the clerk on
January 5, 2006.
      On January 30, 2006, the district court, after noting Lewis’s failure to file
any objections to the magistrate judge’s Report and Recommendation, adopted
the Report and Recommendation and ordered Lewis’s suit dismissed for failure
to prosecute pursuant to Rule 41(b). FED. R. CIV. P. 41(b). The district court
then entered judgment in favor of the defendants-appellees.
                                II. DISCUSSION
      Lewis argues that the district court committed plain error in dismissing
his suit against defendants-appellees based on his failure to prosecute.
Specifically, the district court’s grounds for dismissing the case were predicated
on Lewis’s supposed failure to meet the default judgment deadline imposed on


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                                  No. 06-30894

him by the magistrate judge. However, the district court relied on the incorrect
September 16, 2005 deadline that the magistrate judge provided in his Report
and Recommendation, when in fact, the deadline given to Lewis in the order was
a year later, September 16, 2006. Therefore, Lewis contends that he had not yet
failed to comply with the magistrate judge’s deadline at the time of the district
court’s judgment on January 30, 2006, so it could not serve as the basis for a
failure to prosecute dismissal.
      A party’s failure to file written objections to a magistrate judge’s report
and recommendation, within 10 days of being served with a copy, bars that
party, except upon grounds of plain error, from attacking on appeal any proposed
factual findings and legal conclusions accepted by the district court, provided
that the party has been served with notice that such consequences will result
from a failure to object. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415,
1428-29 (5th Cir. 1996). Under the plain error standard, “appellate courts have
discretion to correct unobjected-to (forfeited) errors that are plain (clear or
obvious) and affect substantial rights.” Id. at 1424 (internal quotation marks
and citation omitted). In exercising that discretion, we “should correct a plain
forfeited error affecting substantial rights if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (quoting U.S.
v. Olano, 507 U.S. 725, 736 (1993)).
      As the district court noted, Lewis did not object to the magistrate judge’s
Report and Recommendation, which specifically warned Lewis of the
consequences that would result from his failure to object. Therefore, it is in our
discretion to correct the unobjected-to errors in the Report and Recommendation
accepted by the district court that are plain and affect substantial rights.
“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’” Olano, 507 U.S. at
734. In this case, the magistrate judge reported that Lewis’s deadline for
seeking entry of default judgment against the named defendants was September

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                                   No. 06-30894

16, 2005. The actual deadline the magistrate judge gave Lewis in its order was
September 16, 2006. Because this September 16, 2006 deadline had not arrived
at the time of the district court’s judgment, January 30, 2006, Lewis had not yet
failed to comply with the court’s order. Therefore, the district court did commit
plain error by relying on the incorrect September 16, 2005 deadline to conclude
that Lewis failed to comply with the court’s order and, thus, failed to prosecute
his suit.
      We now inquire whether this plain error affected Lewis’s substantial
rights. “[I]n most cases the affecting of substantial rights requires that the error
be prejudicial; it must affect the outcome of the proceeding.” Crawford v. Falcon
Drilling Co., 131 F.3d 1120, 1125 (citing Olano, 507 U.S. at 734-35). In this case,
although the plain error led to the dismissal of Lewis’s suit for his supposed
failure to prosecute, his substantial rights would not be affected. Specifically,
Title VII actions may only be brought against the “employer” or a supervisor or
agent of the employer in his official capacity. See Hucakbay v. Moore, 142 F.3d
233, 241 (5th Cir. 1998). “[O]ur cases make plain that the term ‘employer’ does
not include a hiring or supervisory official in his personal or individual capacity.”
Id. (citing Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994)). Lewis
brought suit against the employees of Southern Discount, and not his employer
Southern Discount. Even assuming that the general manager, Duane Hardy,
was a supervisor or agent of Southern Discount, Lewis did not sue Duane in his
official capacity. Moreover, the EEOC’s right-to-sue notice only permitted Lewis
to sue the respondent-employer named in the charge; Southern Discount was the
only named respondent-employer. Therefore, even if we were to reverse the
district court’s judgment for plain error, Lewis’s underlying suit against the
named defendants-appellees would be dismissed. In sum, because the plain
error does not affect the outcome of the proceeding, we will not exercise our
discretion to correct the error.

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       Lewis also argues that he did not receive the magistrate judge’s Report
and Recommendation until January 31, 2006, after the judgment had been
entered by the district court dismissing his case, and therefore, he did not have
a chance to object and preserve error for appeal. However, the record provides
no evidence to support Lewis’s contention. The magistrate judge’s Report and
Recommendation was filed with the clerk on January 5, 2006, and apparently
sent to Lewis that same day.1
                                    III. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.




       1
         An independent review of the district court’s docket revealed that the Report and
Recommendation was sent to Lewis, but that it was returned on April 25, 2006, as
undeliverable due to an inability to forward to his new address. Lewis has a duty to keep the
court apprised of such address changes. Therefore, he is solely responsible for not receiving
this document. In fact, the failure of a pro se litigant to notify the district court of an address
change may be considered by the district court as an additional cause for dismissal for failure
to prosecute. See E.D. LA. CIV. R. 41.3.1E (“Dismissal for Failure to Provide Notification of
Change of Address”).

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