United States District Court, M.D. Pennsylvania
Kane, District Judge.
the Court is a motion to dismiss Plaintiff Mark Douglas'
amended complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, filed by Defendants Brigadier
General Anthony J. Carrelli and Deborah Nesbella. For the
reasons provided herein, the Court will grant Defendants'
motion to dismiss.
Mark Douglas commenced this action on September 6, 2016
through the filing of a complaint against Defendants Major
General Wesley E. Nesbit, Brigadier General Anthony J.
Carrelli and Deborah Nesbella, alleging race and age
discrimination in the context of his previous employment with
the Pennsylvania Department of Military and Veterans Affairs
as a unit clerk at the Hollidaysburg Veterans
Home. (Doc. No. 1.) On December 21, 2016,
Plaintiff filed an amended two-count, six-page
complaint. (Doc. No. 6.)
amended complaint, Plaintiff alleges that on or about March
17, 2012, he was hired by “Defendant or [the] person
she was responsible for as a [u]nit [c]lerk . . . .”
(Id. at ¶ 6.) Plaintiff avers that on or about
September 4, 2012, “Defendant's agents met with
Plaintiff in a pre-disciplinary conference.”
(Id. at ¶ 7.) According to the amended
complaint, Plaintiff was provided with employee evaluations,
which rated his work as “unsatisfactory.”
(Id.) Plaintiff asserts that, following this
“pre-disciplinary conference, ” he was notified
that he would be terminated from employment effective
September 10, 2012 due to his “poor performance.”
(Id. at ¶ 8.) Plaintiff appears to contest that
Defendants failed to comply with certain disciplinary
procedures prior to his termination. (Id. at ¶ 9.)
He further provides that “[o]ut of the five unit clerks
in Plaintiff's department, ” Plaintiff was the only
African American unit clerk employed at the Hollidaysburg
Veterans home over the age of 50. Plaintiff brings his claims
of race discrimination and age discrimination “in the
form of wrongful discharge in violation of 42 U.S.C. §
1981 governing employment actions brought against state
actors and 42 U.S.C. § 1981 governing employment actions
through 42 U.S.C. § 1983.” (Id. at
¶¶ 20, 28.)
Brigadier General Anthony J. Carrelli and Deborah Nesbella
have filed a motion to dismiss Plaintiff's amended
complaint. (Doc. No. 8.) Having been fully briefed, this
matter is now ripe for disposition.
12(b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). The legal standards governing pleading
practice in federal court have shifted to a “more
heightened form of pleading, requiring a plaintiff to plead
more than the possibility of relief to survive a motion to
dismiss.” See Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil
complaints must set out “sufficient factual
matter” to show that the claim is facially plausible.
Id. The plausibility standard requires more than a
mere possibility that the defendant is liable for the alleged
misconduct. Indeed, “where the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged - but it has not
‘show[n]' - ‘that the pleader is entitled to
relief.'” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (citing Fed.R.Civ.P. 8(a)(2)). Factual allegations
must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
United States Court of Appeals for the Third Circuit has
identified the following steps a district court must take
when evaluating the sufficiency of a complaint's
allegations as tested against a Rule 12(b)(6) motion: (1)
identify the elements a plaintiff must plead to state a
claim; (2) discard any conclusory allegations contained in
the complaint “not entitled” to the assumption of
truth; and (3) determine whether any “well-pleaded
factual allegations” contained in the complaint
“plausibly give rise to an entitlement to
relief.” See Santiago v. Warminster Twp., 629
F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks
evaluating whether a complaint fails to state a claim upon
which relief may be granted, the court must accept as true
all factual allegations in the complaint, and construe all
reasonable inferences to be drawn therefrom in the light most
favorable to the plaintiff. See In re Ins. Brokerage
Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). A
court “need not credit a complaint's ‘bald
assertions' or ‘legal conclusions' when
deciding a motion to dismiss, ” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), and
must disregard any “formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. Additionally, a court may not assume that a
plaintiff can prove facts that the plaintiff has not alleged.
Associated Gen. Contractors of Cal. v. Cal. State Council
of Carpenters, 459 U.S. 519, 526 (1983). In deciding a
Rule 12(b)(6) motion, the court may consider, in addition to
the facts alleged on the face of the complaint, any exhibits
attached to the complaint, “any matters incorporated by
reference or integral to the claim, items subject to judicial
notice, [and] matters of public record.” Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006) (citation and quotation marks omitted).
Sua Sponte Dismissal of Defendant Major General Wesley E.
initial matter, the Court observes that Defendant Major
General Wesley E. Nesbit is subject to dismissal from this
action for failure to serve process within 90 days of filing
the complaint as required by Rule 4(m) of the Federal Rules
of Civil Procedure.
amended provision of Rule 4(m) governing the time limit for
service of process following the filing of a complaint,
effective December 1, 2015, provides as follows:
(m) Time Limit for Service. If a defendant
is not served within 90 days after the complaint is filed,
the court - on motion or on its own after notice to the
plaintiff - must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
Fed. R. Civ. P. 4(m). Rule 4(m) mandates that the district
court dismiss a complaint after notice to the plaintiff if
service of the complaint is not made upon a defendant within
90 days after initiating the action.
Plaintiff commenced the above-captioned action on September
6, 2016. (Doc. No. 1.) On December 9, 2016, the Court,
observing that Plaintiff had not yet submitted proof of
service of the summons and complaint upon Defendants within
the 90-day period prescribed by Rule 4(m), entered an Order
directing Plaintiff to show cause why the above-captioned
action should not be dismissed for failure to prosecute.
(Doc. No. 4.) That same day, Plaintiff responded to the
Court's Show Cause Order by submitting proof of summons,
which revealed that summons was returned unexecuted as to
Defendant Nesbit, with the notation: “this person does
not exist.” (Doc. No. 5 at 4.) The docket reflects
that, to date, no further attempt has been made by Plaintiff
to serve Defendant Nesbit pursuant to Rule 4.
Court's calculation, more than 180 days have elapsed
since the complaint in this action was filed. Despite having
received notice of a possible sua sponte dismissal
for failure to timely serve the complaint on all Defendants,
including Defendant Nesbit, Plaintiff has failed to
effectuate proper service of the complaint on Defendant
Nesbit. Significantly, Plaintiff has made no request during
this period for an extension of time to properly serve
Defendant Nesbit, nor has he demonstrated good cause for the
failure to effect timely service. In the absence of a finding
of good cause for the failure to serve Defendant Nesbit
within the required 90-day timeframe, the Court declines to
exercise its discretion to extend the time for service and
consequently, will sua sponte dismiss this action as
to Defendant Major General Wesley E. Nesbit.
Official Capacity Claims Against Defendant Brigadier
General Anthony J. Carrelli
appears from Plaintiff's amended complaint that Plaintiff
has asserted claims of age and race discrimination against
Defendant Brigadier General Anthony J. Carrelli “in his
capacity as Adjutant General of Pennsylvania and of the
Department of Military and Veterans Affairs.” (Doc. No.
6 at 1.) Defendants move for dismissal of all claims brought