The opinion of the court was delivered by: Judge Sylvia H. Rambo
For the third time,*fn1 Plaintiff Joyce Elberson has commenced a federal lawsuit alleging that the Commonwealth and a number of state agencies*fn2 discriminated against her on the basis of race in connection with her applications for employment at several state corrections facilities. The first two cases, which concerned alleged discrimination from 1994 until 2003, resulted in judgment for Defendants on all claims. In this action, it is apparent that Plaintiff's counsel has lifted the same allegations from Plaintiff's two previous complaints almost verbatim, and deposited them into the instant complaint-a sixty-two page, 585 paragraph laundry list which catalogues Plaintiff's unsuccessful quest for state employment since 1993. Counsel modified the current complaint only to add new legal theories and defendants to the previous allegations and to include additional allegations stemming from incidents dating from 1993 and 1994, and a handful of undated new allegations.
Before the court is Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and Rule 12(b)(1). (Doc. 15.) Defendants argue that Plaintiff's claims must be dismissed for four reasons: most claims are barred by the doctrine of res judicata or Eleventh Amendment immunity; and the remaining claims are barred because the requisite statutes of limitation have run, and Plaintiff has failed to exhaust her administrative remedies prior to bringing suit. For the reasons that follow, the motion to dismiss will be granted in part and denied in part. Additionally, the court will address another issue not raised by the parties-the fact that Plaintiff's attorney, Mark S. Zearfaus, is not generally admitted to practice before the United States District Court in the Middle District of Pennsylvania, and has not sought special admission pro hac vice in this matter.
Plaintiff alleges that Defendants have racially discriminated and retaliated against her by failing to hire her for thirty-two positions at a number of state corrections facilities. This is Plaintiff's third case alleging racial discrimination by Defendants.
In 1999, Plaintiff brought suit against the Commonwealth, DOC, and SCI-Huntingdon alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Fourteenth Amendment, and the Pennsylvania Human Relations Act ("PHRA") in connection with her numerous unsuccessful applications for employment from 1994 until 1999. Plaintiff's Fourteenth Amendment and PHRA claims were dismissed pursuant to 12(b)(6), and summary judgment was granted in Defendants' favor on Plaintiff's remaining Title VII claims. Plaintiff appealed the judgment, which was affirmed by the Third Circuit Court of Appeals.
In 2003, Plaintiff brought suit against the Commonwealth, DOC, SCIHuntingdon, SCI-Smithfield, and a number of individuals, alleging violations of Title VII, the First Amendment, the PHRA, 42 U.S.C. §§ 1981, 1983, 1985, and 1986. Many of Plaintiff's 2003 claims were dismissed pursuant to Fed. R. Civ. P. 12(b)(6) and judgment was granted in Defendants' favor on the remaining claims pursuant to Rule 56. On November 26, 2004, Plaintiff filed a notice of appeal. The Third Circuit Court of Appeals dismissed the appeal on June 14, 2005 for failure to prosecute.
In the instant complaint, filed on November 1, 2006, Plaintiff alleges that she suffered discrimination or retaliation in connection with her applications to thirty-two different positions at various state agencies from 1993 through 2003, all in violation of the First and Fourteenth Amendments to the United States Constitution; Title VII; 42 U.S.C. §§ 1981 and 1983; and the PHRA. (Doc. 4.) Plaintiff seeks only money damages, and not prospective injunctive relief. The complaint initially named as Defendants the Commonwealth, a number of state agencies, and fifty-four individual defendants. (Doc. 1.) On November 2, 2006, the court issued an order to show cause why sanctions should not be imposed against Plaintiff under Federal Rule of Civil Procedure 11(b) and allowed Plaintiff to amend the complaint. (Doc. 2.) Plaintiff filed her amended complaint on November 20, 2006, omitting the fifty-four individual Defendants. (Doc. 4.) Upon amendment, and on Plaintiff's representation that the current suit was based on "newly discovered" evidence, the court permitted the claim to proceed. (Doc. 6.)
On May 21, 2007, Defendants filed a motion to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted. (Doc. 15.) A brief in support thereof was filed the same day. (Doc. 16.) Plaintiff filed a brief in response on June 5, 2007. (Doc. 19.) On June 27, 2007 Defendants filed a reply brief. (Doc. 20.) Thus the matter is ripe for disposition.
II. Legal Standards: Motions to Dismiss
Defendants seek to dismiss Plaintiff's complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief may be granted.
A. Lack of Subject Matter Jurisdiction -- 12(b)(1)
" 'A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court to address the merits of the plaintiff's complaint.' " Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 537 (M.D. Pa. 2002) (quoting Ballenger v. Applied Digital Solutions, Inc., 189 F. Supp. 2d 196, 199 (D. Del. 2002)). The motion should be granted where the asserted claim is "insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Coxson v. Pennsylvania, 935 F. Supp. 624, 626 (W.D. Pa. 1996) (citing Growth Horizons v. Delaware County, 983 F.2d 1277, 1280-81 (3d Cir. 1993)).
B. Failure to State a Claim -- 12(b)(6)
A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, - U.S. -, 127 S.Ct. 2197, 2200 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Accord Phillips, 515 F.3d at 233. If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 127 S.Ct. at 1965, 1974; Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Caroll, 495 F.3d 62, 66 (3d Cir. 2007). This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Twombly, 127 S.Ct. at 1965.
Additionally, in the Third Circuit, a court must grant leave to amend before dismissing a civil rights complaint that is merely deficient. See, e.g., Phillips v. County of Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008); Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
Plaintiff alleges that Defendants discriminated against her through their hiring practices in violation of the First and Fourteenth Amendments to the United States Constitution; Title VII; 42 U.S.C. §§ 1981 and 1983; and the PHRA. Defendants argue that each of Plaintiff's claims are barred by one or all of the following four theories: (1) res judicata; (2) sovereign immunity; (3) the statue of limitations; and (4) failure to exhaust administrative remedies. Each argument will be addressed in turn.*fn3
Defendant seeks dismissal of all claims related to those litigated in the previous two cases. In her brief in response, Plaintiff argues for the first time that the claims should be permitted to go forward because they are based on "newly discovered" evidence. The court will review the doctrine of res judicata and examine the claims raised in ...