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Douglas v. Nesbit

United States District Court, M.D. Pennsylvania

March 16, 2017

MARK DOUGLAS, Plaintiff
v.
MAJOR WESLEY E. NESBIT, et al, Defendants

          MEMORANDUM

          Yvette Kane, District Judge.

         Before 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.

         I. BACKGROUND[1]

         Plaintiff 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.[2] (Doc. No. 1.) On December 21, 2016, Plaintiff filed an amended two-count, six-page complaint.[3] (Doc. No. 6.)

         In his 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.[4] (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.)

         Defendants 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.

         II.LEGAL STANDARD

         Rule 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).

         The 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 omitted).

         In 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).

         III.DISCUSSION

         A. Sua Sponte Dismissal of Defendant Major General Wesley E. Nesbit

         As an 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.

         The 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 appropriate period.

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.

         Here, 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.

         By the 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.[5] 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.

         B. Official Capacity Claims Against Defendant Brigadier General Anthony J. Carrelli

         It 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 against ...


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