The opinion of the court was delivered by: Cathy Bissoon Cathy Bissoon U.S. Magistrate Judge
Magistrate Judge Cathy Bissoon
For the reasons that follow, Defendant‟s Motion to Strike (Doc. 8) will be granted in part and denied as moot in part and Defendant‟s Motion to Dismiss the Complaint (Doc. 10) will be granted in part and denied in part, as discussed below.
Pro se Plaintiff, Clarence C. Houser, Jr., initiated this action on February 12, 2009, with the filing of a motion for leave to proceed in forma pauperis, accompanied by a Complaint alleging that Defendant, John Potter, Postmaster General, United States Postal Service ("USPS" or "Defendant") discriminated and retaliated against him on the basis of his age and disability and slandered his image and performance. Houser‟s prayer for relief requests payment of his medical bills and damages for pain and suffering.
On May 18, 2009, this Court granted Plaintiff‟s motion to proceed in forma pauperis and the Complaint was docketed. On October 2, 2009, the USPS filed a motion to strike Plaintiff‟s claim for compensatory damages under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ("ADEA") and for punitive damages under the ADEA and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. ("Rehabilitation Act"). On that same date, Defendant filed a motion to dismiss, urging that the Complaint should be dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12 (b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court ordered Plaintiff to file a response to the motion by October 30, 2009. On Plaintiff‟s request, the deadline for his response was extended to November 16, 2009. To date, Plaintiff has not responded to Defendant‟s motion to dismiss.*fn1
Houser alleges that he began working for the USPS as a part-time Flexible Carrier on June 4, 2004. In August of 2007, Houser contends that he had an accident on the job resulting in a knee injury. On December 4, 2007, Houser‟s supervisor, Mike McGinnis ("McGinnis"), allegedly instructed him not to return to work until he submitted a written description of his restrictions. Houser contends that McGinnis‟s directive conflicted with his physician‟s advice. (Compl. ¶¶5-7.)
Although the Complaint is not clear on what next transpired, it appears that Houser did not return to work until April 7, 2008. Although he had not healed from knee surgery, Houser alleges that when he returned to work he was forced to work beyond his doctor‟s restrictions and suffered another injury, a "hernia [sic] disc." (Compl. ¶7.) In addition to his physical injury, Houser claims that he was "written up" without cause on several occasions, was cast out of the building by McGinnis without reason, and that McGinnis "slander[ed his] image & performance because of [his] age & health." Id. at ¶ 7 A, B, and C.
1. Fed. R. Civ. 12(b)(6) - Failure to State Legally Cognizable Claim
The United States Supreme Court opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and more recently, in Ashcroft v. Iqbal, --- U.S. ---, 129S.Ct. 1937 (2009), have shifted pleading standards from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more ...