United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant VT MAE's Motion
to Dismiss Plaintiff's Complaint (Doc. 6). The motion has
been fully briefed and has been referred to the undersigned
Magistrate Judge for entry of a Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons
set forth below, the undersigned RECOMMENDS
that Defendant's Motion to Dismiss Plaintiff's
Complaint (Doc. 6) be GRANTED and that this
action be DISMISSED with prejudice.
Background Facts and Proceedings
Van Gandy, who is proceeding pro se, filed a
complaint against Defendant VT MAE (“MAE”) and a
motion to proceed without prepayment of fees on August 31,
2018. (Docs. 1, 2). The Court granted Plaintiff's motion
to proceed in forma pauperis on September 4, 2018.
original complaint, Plaintiff asserted that he was employed
by Defendant MAE from February 11, 2008, to November 1, 2017,
as a mechanic and that his job was terminated on November 1,
2017, while he was on medical leave, in violation of
Plaintiff's rights under the Americans with Disabilities
Act (“ADA”) and the Equal Pay Act
(“EPA”). (Id. at 2-3). On September 28,
2018, Defendant MAE moved to dismiss the complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. (Doc. 6).
Order dated June 6, 2019, the undersigned observed that
Plaintiff's complaint was deficient because it failed to
allege the elements of a prima facie case under the
ADA or the EPA and, thus, failed to state a claim upon which
relief could be granted. (Doc. 10). Indeed, the Court set
forth the elements of a prima facie case
under both the ADA and the EPA and explained to Plaintiff
which elements were missing in his complaint. (Id.).
The Court then directed Plaintiff to file, by July 3, 2019,
an amended complaint that corrected the noted deficiencies.
(Id.). Plaintiff was cautioned that he must correct
the noted deficiencies, or else the Court would recommend
that the action be dismissed with prejudice for failure to
state a claim upon which relief could be granted.
(Id.). Plaintiff was provided a copy of the Pro
Se Litigation Guide and encouraged to utilize the Guide
in drafting his amended complaint. (Id.).
2, 2019, Plaintiff filed a “response” to the
Court's order (Doc. 12), which the Court construes as
Plaintiff's amended complaint. Having reviewed
Plaintiff's amended complaint (id.), the Court
observes that it is as deficient as the original complaint.
Indeed, in the 215-page filing, Plaintiff sets forth one
substantive paragraph, devoid of any material factual
allegations, in which he explains his pro se status
and describes his list of attached exhibits (which comprise
the remaining 214 pages). (Doc. 12). Plaintiff's
voluminous exhibits consist largely of medical records, court
records, telephone records, disability insurance records,
EEOC records, and social security disability records.
Plaintiff was afforded ample opportunity to correct the
pleading deficiencies in his original complaint but failed to
do so, Defendant's motion to dismiss is due to be
granted, and Plaintiff's amended complaint is due to be
dismissed, with prejudice, for failure to state a claim upon
which relief can be granted.
Rule 12(b)(6) Standard.
defendant may move to dismiss a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) if the plaintiff has failed
to state a claim upon which relief may be granted. “The
standard of review for a motion to dismiss is the same for
the appellate court as it [is] for the trial court.”
Stephens v. Department of Health & Human Servs.,
901 F.2d 1571, 1573 (11th Cir. 1990). “When considering
a motion to dismiss, all facts set forth in the
plaintiff's complaint ‘are to be accepted as true
and the court limits its consideration to the pleadings and
exhibits attached thereto.” Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long County, 999 F.2d 1508,
1510 (11th Cir. 1993)). All “reasonable
inferences” are drawn in favor of the plaintiff.
St. George v. Pinellas County, 285 F.3d 1334, 1337
(11th Cir. 2002).
survive a 12(b)(6) motion to dismiss for failure to state a
claim, the complaint “does not need detailed factual
allegations”; however, the “plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. . . . Factual allegations
must be enough to raise a right to relief above the
speculative level . . ., on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted). The plaintiff
must plead “enough facts to state a claim to relief
that is plausible on its face.” Id. at 570.
Unless a plaintiff has “nudged [his] claims across the
line from conceivable to plausible, ” the complaint
“must be dismissed.” Id.
conclusions of law or of mixed fact and law” will not
defeat a Rule 12(b)(6) motion for dismissal. Dalrymple v.
Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting
Marsh v. Butler County, Ala., 268 F.3d 1014, 1036
n.16 (11th Cir. 2001)). “[W]here 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) (quoting Fed.R.Civ.P. 8(a)(2)). The U.S. Supreme Court
has suggested that courts adopt a “two-pronged
approach” when considering motions to dismiss:
“1) eliminate any allegations in the complaint that are
merely legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” American Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting
Iqbal, 556 U.S. at 664). Importantly, “courts
may infer from the factual allegations in the complaint
‘obvious alternative explanation[s],' which suggest
lawful conduct rather than the unlawful conduct the plaintiff
would ask the court to infer.” Id. (quoting
Iqbal, 556 U.S. at 682).
considering a pro se litigant's allegations, a
court gives them a liberal construction holding them to a
less stringent standard than those of an attorney. Haines
v. Kerner, 404 U.S. 519, 520 (1972). However, a court
does not have “license . . . to rewrite an otherwise
deficient pleading [by a pro se litigant] in order
to sustain an action.” GJR Investments, Inc. v.
County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998), overruled on other grounds by Iqbal, 556 U.S.
662 (2009); see Randall v. Scott, 610 F.3d 701, 709
(11th Cir. 2010) (observing Iqbal's overruling
of GJR Investments' heightened pleading
standard). Furthermore, a pro se litigant “is