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Douglas v. Nesbit

United States District Court, M.D. Pennsylvania

June 9, 2017

MAJOR WESLEY E. NESBIT, et al., Defendants

          Kane Judge.


         Before the Court is Plaintiff Mark Douglas' opposed motion for leave to file a second amended complaint, submitted together with a proposed amended pleading. (Doc. No. 17.) For the reasons provided herein, the Court will deny Plaintiffs motion for leave to file a second amended complaint and will close the case.

         I. BACKGROUND

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

         In that amended complaint, Plaintiff alleged that on or about September 4, 2012, approximately six months into his employment as a unit clerk, “Defendant's agents met with Plaintiff in a pre-disciplinary conference, ” where he was provided with a number of employee evaluations, rating his work as “unsatisfactory.” (Id.) Plaintiff asserted 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 appeared to contest in his amended complaint that Defendants had failed to comply with certain disciplinary procedures prior to his termination.[3] (Id. at ¶ 9.) He further averred 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. Through his amended complaint, Plaintiff brought 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 Carrelli and Nesbella filed a motion to dismiss Plaintiff's amended complaint on December 22, 2016 (Doc. No. 8), which the Court granted in a Memorandum and Order entered on March 16, 2017 (Doc. Nos. 15, 16). In its March 16, 2017 Memorandum and Order, the Court: (1) sua sponte dismissed Defendant Nesbit 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; (2) granted Defendants' motion to dismiss the claims brought against Defendant Carrelli in his official capacity with prejudice on sovereign immunity grounds; (3) granted Defendants' motion to dismiss Plaintiff's claim of unlawful race discrimination under 42 U.S.C. § 1981 against Defendant Nesbella for failure to adequately plead facts demonstrating her personal involvement in the alleged acts of misconduct and for failure to allege facts from which a discriminatory animus on the part of Defendant Nesbella might be inferred; and (4) granted Defendants' motion to dismiss Plaintiff's claim of unlawful age discrimination under § 1981 as non-cognizable. Id. In granting Defendants' motion to dismiss, the Court, noting Plaintiff's request to further amend his operative pleading in his oppositional brief to Defendants' motion to dismiss, afforded Plaintiff a final opportunity to file a properly supported motion for leave to amend together with a proposed second amended complaint limited to asserting Plaintiff's age and race discrimination claims as against Defendant Nesbella, in accordance with Local Rule 15.1(a).

         Pursuant to the Court's directive, on April 17, 2017, Plaintiff filed the instant motion for leave to file a second amended complaint, appending to his motion a proposed amended pleading to facilitate the Court's review of his claims. (Doc. No. 17.) On May 4, 2017, Defendant Nesbella filed a brief in opposition to Plaintiff's motion for leave to file a second amended complaint. (Doc. No. 18.) No reply brief has been filed. See L.R. 7.7 (“A brief in reply to matters argued in a brief in opposition may be filed by the moving party within fourteen (14) days after service of the brief in opposition.”). Accordingly, this matter is now ripe for disposition.


         Federal Rule of Civil Procedure 15(a) embodies a liberal approach to amendment of pleadings, instructing that a “court should freely give leave [to amend a pleading] when justice so requires.” Fed.R.Civ.P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]his mandate is to be heeded.”). Indeed, “[l]eave to amend must generally be granted unless equitable considerations render it otherwise unjust.” Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006). Among the grounds that may justify a court's denial of leave to amend are “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Forman, 371 U.S. at 182. A pleading will be deemed futile if, as amended, it fails to state a claim upon which relief may be granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (“Amendment of the complaint is futile if the amendment will not cure the deficiency in the original complaint or if the amended complaint cannot withstand a renewed motion to dismiss.”). In assessing “futility, ” a court applies the standard of legal sufficiency set forth under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         Rule 12(b)(6) authorizes dismissal of 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).


         By his motion, Plaintiff moves for leave to add Kelly Smith, [4] Assistant Director of Nursing for Hollidaysburg Veterans Home, as a named defendant in this action, and to supplement his race and age discrimination claims with additional factual allegations. (Doc. No. 17.) Accompanying his motion is a proposed two-count second amended complaint, totaling seven pages in length. (Doc. No. 17-1.) Defendant Deborah Nesbella, in opposition to Plaintiff's motion for leave to file a second amended complaint, argues that Plaintiff has failed to cure the pleading deficiencies previously identified by the Court in its March 16, 2017 Memorandum and Order as to his race and age discrimination claims. (Doc. No. 18.) Thus, Defendant Nesbella urges the Court to deny ...

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