Opinion
C. A. 8:22-cv-04706-TMC-JDA
04-07-2023
Brian Anthony Aspinall, Plaintiff, v. Jeffery Keller, Shayla Sipp, Kevin Ong, Michael Hanson, Shannon Phelps, Williams Mackleburg, Patricia Moses, Jeremey Follis, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Brian Anthony Aspinall (“Plaintiff”), a non-prisoner litigant proceeding pro se and in forma pauperis, brings this civil action against the above-named Defendants. This matter is before the Court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C. For the reasons below, this action is subject to summary dismissal.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a Complaint on December 29, 2022, purportedly for discrimination based on the Americans with Disabilities Act of 1990 (the “ADA”) and under various other federal and state laws. [Doc. 1 at 3.] By Order dated February 3, 2023, the Court notified Plaintiff that, upon screening in accordance with 28 U.S.C. § 1915, this action was subject to summary dismissal for the reasons identified by the Court in its Order. [Doc. 16.] The Court noted, however, that Plaintiff might be able to cure the deficiencies of his Complaint and granted Plaintiff twenty-one days to file an amended complaint. [Id. at 26.] Further, Plaintiff was specifically warned as follows:
Plaintiff's Complaint named the same eight Defendants listed above, who are the only Defendants named in the Amended Complaint, as well as certain other Defendants who are not named in the Amended Complaint.
By Order dated February 13, 2023, the undersigned granted Plaintiff an extension of time within which to amend his Complaint. [Doc. 20.]
Plaintiff is hereby notified that if he asserts the claims noted [in the Court's Order] that are subject to dismissal for the reasons stated [t]herein, the undersigned will recommend that this action be dismissed without further leave to amend.
Further, Plaintiff is reminded that any amended complaint must comply with the requirements of Rule 8. Rule 8(a)(1) calls for “a short and plain statement of the grounds for the court's jurisdiction,” Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” and Rule 8(d)(1) requires that each averment of a pleading be “simple, concise, and direct.” If Plaintiff files an amended complaint that fails to comply with Rule 8, the undersigned will recommend that this action be dismissed without further leave to amend.
Plaintiff is warned that an amended complaint replaces all prior complaints and must be complete in itself.... If Plaintiff files an amended complaint, the undersigned will conduct screening of the amended complaint pursuant to 28 U.S.C. § 1915.
If Plaintiff fails to file an amended complaint that corrects the deficiencies identified [in the Court's Order], this action will be recommended for summary dismissal, with prejudice, pursuant to 28 U.S.C. § 1915 and without leave for further amendment.[Id. at 27-28 (emphasis omitted).] On March 14, 2023, Plaintiff filed an Amended Complaint against most of the same Defendants named in the original Complaint and asserting some of the same claims asserted in the original Complaint. [Doc. 22.]
The Original Complaint
The original Complaint appeared to assert approximately twenty-six causes of action. Specifically, the original Complaint asserted claims for employment discrimination on the basis of Plaintiff's purported disability as well as claims under federal and state laws. [Doc. 1 at 9.] As to the violations of federal laws, Plaintiff alleged Defendants violated his rights under the First, Fourth, Fifth, and Eighth Amendments, and OSHA, the Rehabilitation Act of 1972, public policy, and the following federal statutes: 18 U.S.C. § 1001, 5 U.S.C. § 7515, 5 U.S.C. § 2302, DOL FECA Circular 09-05, 18 U.S.C. §§ 241, 242, 245(b)(1)(c), 245(b)(1)(e), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. [ Id. at 9-27.] As to the violations of state law, Plaintiff alleged Defendants engaged in a “Civil Conspiracy to engage in Tortious Interference to Breach of Contract” and violated South Carolina state laws for assault, kidnapping, false imprisonment, accessory after the fact, defamation, slander, libel, and civil conspiracy. [Id. at 3-4, 9, 25-29.] For his relief, Plaintiff sought various forms of money damages, an award of litigation costs and fees, and injunctive relief. [Id. at 29-31.]
The Amended Complaint
Plaintiff's Amended Complaint is not much different from his original Complaint and it asserts many of the same claims against many of the same Defendants. [Doc. 22.] Specifically, Plaintiff asserts eight causes of action in the Amended Complaint: (1) ADA disability discrimination [id. ¶¶ 19-40], (2) failure to accommodate disability [id. ¶¶ 41-66], (3) retaliation in violation of the ADA [id. ¶¶ 67-72], (4) wrongful termination [id. ¶¶ 73-78], (5) negligence [id. ¶¶ 79-133], (6) civil conspiracy [id. ¶¶ 134-41], (7) violations of the Fair Labor Standards Act (“FLSA”) [ id. ¶¶ 142-44], and (8) violations of 42 U.S.C. § 12112 [ id. ¶¶ 145-50]. Again, the crux of this action is a claim for discrimination on the basis of Plaintiff's purported disability.
Plaintiff makes the following pertinent allegations in his Amended Complaint. Beginning in June 2020, Plaintiff was employed by the Bureau of Prisons (“BOP”) as a correctional officer. [Id. ¶ 5.] On December 20, 2020, Plaintiff suffered a work-related injury to his body during the course and scope of his employment. [Id. ¶ 6.] Plaintiff reported his work-related injury to Defendants on January 5, 2021, and sought treatment for his “toxic exposure injury.” [Id. ¶ 7.] Plaintiff's work-related injury resulted in a disability that limited his ability to work and he was placed “out of work” by his treating physician on January 20, 2021. [Id. ¶ 8.] Nevertheless, on February 18, 2021, Plaintiff was “illegally coerced into remaining in a federal prison to work by the captain of the prison.” [Id. ¶ 9.] That same day, Plaintiff was re-injured by a toxic exposure. [Id. ¶ 13.] Plaintiff suffered a “breakout on his body” and reported to the emergency room at Augusta University for monitoring and evaluation. [Id. ¶ 14.] Although Plaintiff's doctor instructed him to remain out of work, Defendants rejected Plaintiff's request for leave. [Id. ¶ 15.] Plaintiff contends that Defendants failed to engage in the interactive process and failed to accommodate his disability and need for restrictions by terminating his employment while he was on a protected medical leave of absence. [Id. ¶ 16.] Plaintiff contends that his “disability/medical conditions, work restrictions, request for and taking a leave of absence, EEO-protected activity, and whistle-blowing were the motivating factors for terminating [his] employment.” [Id. ¶ 17.] Plaintiff further contends that he has exhausted his administrative remedies and received a right-to-sue notice. [Id. ¶ 18.]
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's pleadings are subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411,417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se pleadings and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the Amended Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, this Court possesses the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the complaint were not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307-08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the ‘defenses' a party might either make or waive under the Federal Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without issuing a summons or following other procedural requirements).
DISCUSSION
Plaintiff's Amended Complaint, like the original Complaint, is subject to summary dismissal for the reasons below.
Discrimination Claims
As noted, Plaintiff purports to bring a claim of discrimination under the ADA against Defendants. Specifically, Plaintiff's first cause of action asserts a claim for ADA discrimination, his second cause of action asserts a claim for failure to accommodate, his third cause of action asserts a claim for retaliation, his fourth cause of action asserts a claim for wrongful termination, and his eighth cause of action asserts a claim for violations of the ADA statute, 42 U.S.C. § 12112 (collectively the “discrimination claims”). [Doc. 22 at 4-21, 30-31.] All of these claims are subject to dismissal because Plaintiff has failed to name a proper party.
Plaintiff's wrongful termination claim is entitled “Wrongful Termination in Violation of S.C. Public Policy.” [Doc. 22 at 21.] To the extent Plaintiff's wrongful termination claim is premised on discrimination in violation of the ADA, it fails for the reasons above. And, to the extent Plaintiff's wrongful termination claim is premised on the violation of public policy, his allegations fail to state a claim for relief. First, Plaintiff has not identified any public policy that Defendants are alleged to have violated. See, e.g., Terry v. Legato Sys., Inc., 241 F.Supp.2d 566, 569-70 (D. Md. 2003) (finding the plaintiff failed to state a viable claim of wrongful discharge in violation of public policy because, among other reasons, she failed to meet the requirement to “plead with particularity the source of the public policy” allegedly violated by her termination (internal quotation marks omitted)). Additionally, “[a] common law claim for termination[, retaliation, and discrimination] in violation of public policy is only available when there is no corresponding statutory remedy.” Morrow v. Brookview Healthcare Ctr., No. 7:13-cv-0378-JMC-JDA, 2013 WL 3553415, at *4 (D.S.C. July 11, 2013). Here, Plaintiff is pursuing claims under federal statutes, including the ADA, for his alleged discrimination, retaliation, and termination. As such, because Plaintiff has a statutory remedy for his claims, he may not pursue a separate common law cause of action under public policy for discrimination, retaliation, and wrongful termination. See Gleaton v. Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 (D.S.C. 2010).
“[T]he ADA was enacted to ‘remedy widespread discrimination against disabled individuals.'” Clement v. Satterfield, 927 F.Supp.2d 297, 311 (W.D. Va. 2013) (citation omitted). Under the ADA, an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). “The elements of a discrimination claim include: (1) a plaintiff was disabled; (2) he was a qualified individual; and (3) he suffered an adverse employment action based on his disability.” Hice v. Mazzella Lifting Techs., Inc., 589 F.Supp.3d 539, 547 (E.D. Va. 2022).
As this Court previously noted in its Order regarding amendment, Plaintiff cannot assert his discrimination claims against the individual Defendants named in the Complaint. See Smith v. Print Mach., Inc., No. 3:16-cv-2918-JFA-SVH, 2017 WL 5593291, at *3 (D.S.C. Mar. 7, 2017) (“the ADA does not allow a plaintiff to pursue claims against individual defendants”), Report and Recommendation adopted by 2017 WL 1148740 (D.S.C. Mar. 28, 2017), aff'd, 696 Fed.Appx. 103 (4th Cir. 2017); Fulmer v. TranTech Radiator Prod., Inc., No. 8:10-cv-1854-JMC-JDA, 2011 WL 1630987, at *2 (D.S.C. Feb. 15, 2011) (“district courts in the Fourth Circuit have found that individuals are not liable for violations of the ADA”), Report and Recommendation adopted by 2011 WL 1630943 (D.S.C. Apr. 29, 2011). “[O]nly employers, and not individuals, can be held liable under the ADA.” Shiflett v. GE Fanuc Automation Corp., No. 95-cv-0073-C, 1996 WL 481082, at *5 (W.D. Va. July 23, 1996) (dismissing ADA claims against the individual defendants). Here, Plaintiff's discrimination claims may be properly asserted only as to his employer, the BOP, and the individual Defendants are therefore entitled to dismissal as to each of the discrimination claims. See Milford v. Middleton, No. 2:16-cv-2441-RMG-MGB, 2017 WL 9250335, at *6 (D.S.C. Nov. 30, 2017) (recommending dismissal of ADA claims against individual defendant as such claims fail as a matter of law), Report and Recommendation adopted by 2018 WL 348059 (D.S.C. Jan. 10, 2018); see also Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (“the ADA does not permit an action against individual defendants for retaliation for conduct protected by the ADA”); Marley v. Univ. of S.C., No. 3:08-cv-937-CMC, 2010 WL 3852244, at *11 n.12 (D.S.C. Aug. 20, 2010) (“District courts in the Fourth Circuit have found that individuals are not liable for violations of the ADA.”), Report and Recommendation adopted by 2010 WL 3852175 (D.S.C. Sept. 27, 2010).
Additionally, Plaintiff has not named the BOP in this action. Accordingly, Plaintiff's discrimination claims are subject to dismissal.
FLSA Claim
Plaintiff also asserts a claim against Defendants under the FLSA. [Doc. 22 at 29-30.] Citing 29 U.S.C. § 206, Plaintiff contends the FLSA “mandates workers are to be paid at least the minimum wage.” [Id. ¶ 143.] As to the facts underlying his FLSA claim, Plaintiff alleges as follows:
Because of the actions of all defendants in the previous sections of the complaint, the BOP reported to the DOJ-who reported to the National Finance Center-an overpayment to me and directed them to recoup the money. Since I worked on February 18, 2021, and was injured in the line of duty, I had a monetary benefit set aside for me because I worked. This monetary benefit included my regular salary and continuation of pay, which falls under the purview of the FLSA. Due to AWOL status, they initiated the process to remove that money from me via the National Finance Center and Treasury, thereby violating the FLSA which mandates at least minimum wage. Also, the date on which I worked, February 18, 2021, they deliberately classified me as AWOL, thereby ensuring I was not paid at all, as well as denying the Continuation of Pay monetary benefit that falls under the purview of the FLSA.[Id. ¶ 144.]
“The FLSA requires that employers pay its employees a wage of at least $7.25 an hour.” Moodie v. Kiawah Island Inn Co., LLC, 124 F.Supp.3d 711, 717 (D.S.C. 2015) (citing 29 U.S.C. § 206(a)). “To establish a claim for nonpayment of minimum wages under 29 U.S.C. § 206, a plaintiff's complaint must show that: ‘(1) the plaintiff was employed by the defendant; (2) the plaintiff was engaged in commerce . . .; (3) the plaintiff was not compensated for all hours worked during each work week at a rate equal to or greater than the then applicable minimum wage; and (4) none of the exemptions in 29 U.S.C. § 213 applied to the plaintiff's position.'” Seagram v. David's Towing & Recovery, Inc., 62 F.Supp.3d 467, 473 (E.D. Va. 2014) (citation omitted). “Additionally, the complaint must at least allege approximate wages such that the Defendants will be able to frame a meaningful response.” Id.
Plaintiff's FLSA claim is subject to dismissal because he has failed to allege facts to state a claim that is plausible. First, Plaintiff has failed to allege facts showing that any Defendant was his “employer” under the definition in the FLSA. See, e.g., Acosta v. JM Osaka Inc., 270 F.Supp.3d 907, 912-15 (E.D. Va. 2017) (discussing “the FLSA's flexible definition of ‘employer'” and finding the named defendants in that case did not meet the FLSA's definition of employer).
Additionally, Plaintiff has failed to allege facts showing the approximate wages he was denied as to his FLSA claim. “Courts in this district have held that ‘[t]o establish a prima facie case of an FLSA violation, a complainant must show as a matter of just and reasonable inference the amount and extent of his work in order to demonstrate that he was inadequately compensated under the FLSA.'” Perez v. Sanchez, No. 6:14-cv-4326-BHH, 2016 WL 721032, at *2 (D.S.C. Feb. 24, 2016); see also Ray v. Bon Secours-St. Francis Xavier Hosp., Inc., No. 2:12-cv-01180-DCN, 2012 WL 4591922, at *2 (D.S.C. Oct. 1, 2012) (noting a “plaintiff must sufficiently indicate the compensation he was entitled to and the number of hours worked without proper compensation to survive a motion to dismiss” (citation omitted)). Here, Plaintiff has failed to allege any such facts and, as such, his “allegations lack sufficient ‘factual context [to] “nudge” [his] claim “from conceivable to plausible.”'” Spencer v. Macado's, Inc., No. 6:18-cv-00005, 2018 WL 3676990, at *4 (W.D. Va. Aug. 1, 2018) (citations omitted). Accordingly, Plaintiff's FLSA claim is subject to dismissal.
State Law Claims
Next, the Court turns to Plaintiff's claims arising under state law. Specifically, Plaintiff's fifth cause of action asserts a claim for negligence and his sixth cause of action asserts a claim for civil conspiracy (collectively the “state law claims”). [Doc. 22 at 22-28.] For the reasons below, this Court lacks jurisdiction over Plaintiff's state law claims.
Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” Id.; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). As such, Federal Rule of Civil Procedure 8(a)(1) requires that a complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]”
Generally, federal district courts have original jurisdiction over two types of cases, referred to as (1) federal question cases, pursuant to 28 U.S.C. § 1331, and (2) diversity cases, pursuant to 28 U.S.C. § 1332. As to cases involving a federal question, § 1331 provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[F]ederal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). Diversity jurisdiction, on the other hand, requires (1) complete diversity of the parties and (2) an amount in controversy in excess of $75,000.00. See 28 U.S.C. § 1332(a). The parties are completely diverse only if no party on one side is a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978).
For the reasons already discussed, Plaintiff's federal law claims (the discrimination claims) are all subject to summary dismissal. Accordingly, in the absence of a claim premised on a federal question, the Court will have jurisdiction over Plaintiff's state law claims only if he can meet the requirements of the diversity statute. However, Plaintiff has failed to satisfy the requirements of the diversity statute. Specifically, both Plaintiff and all of the named Defendants are citizens of South Carolina. Thus, because complete diversity between the parties does not exist, the Court lacks diversity jurisdiction over the state law claims.
Requested Relief
Further, the undersigned notes that Plaintiff would not be entitled to at least some of the relief he has requested in the Amended Complaint, even if he were to prevail on his claims. For example, Plaintiff seeks money damages for the cost of litigation, including his purchase of a printer and paper, which he estimates to cost “$750 to $800.00.” [Doc. 22 at 32.] Further, although Plaintiff acknowledges he “can't receive attorney fees as [he is] pro se,” he contends he is entitled to compensation for fees as a “legal investigator.” [Id. at 33.] Specifically, Plaintiff contends that he is entitled to $65 per hour, that he currently spends approximately 12 hours per day working on his case, and that he is therefore entitled to $562,380 in fees based on the number of hours he has worked. [Id.]
Plaintiff made the same allegations in his original Complaint. As the Court previously noted, Plaintiff is not entitled to such relief because “a pro se plaintiff may not collect attorney's fees.” Harman v. Unisys Corp., 746 F.Supp.2d 755, 764 (E.D. Va. 2010); see also Guidetti v. Cnty. of Greenville, No. 6:11-cv-1249-HMH-JDA, 2011 WL 5024287, at *3 (D.S.C. Sept. 12, 2011) (explaining that, even if the plaintiff were to prevail on any of his claims under a statute which allows for the award of reasonable attorneys' fees, the plaintiff was representing himself and was therefore not entitled to attorney's fees), Report and Recommendation adopted by 2011 WL 5024277 (D.S.C. Oct. 20, 2011). Additionally, pro se litigants “cannot recover attorney litigation expenses.” Rhoads v. F.D.I.C., 286 F.Supp.2d 532, 543 (D. Md. 2003), aff'd, 94 Fed.Appx. 187 (4th Cir. 2004).
Improper Defendants
Finally, Plaintiff has again named certain Defendants who are subject to dismissal because they are not proper parties subject to suit in this action or are immune from liability.
All Defendants
First, as discussed, all of the named Defendants are entitled to dismissal of Plaintiff's discrimination claims against them as those claims may be brought only against Plaintiff's employer and none of Defendants qualify as his employer.
Shayla Sipp
Shayla Sipp is identified as an EEO Administrative Law Judge (“ALJ”). [Doc. 22 at 12.] Plaintiff makes numerous allegations against Defendant Sipp arising from her duties as an ALJ. [Id. at 30-32.] Defendant Sipp is entitled to judicial immunity. “[J]udicial immunity applies to administrative law judges when they are acting in a judicial capacity, such as presiding over adversarial proceedings and making decisions on issues of fact and law.” Doyle v. McDonough, No. ELH-20-cv-3478, 2021 WL 4846938, at *17 (D. Md. Oct. 15, 2021). “Judicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Based on the allegations in the Complaint, although Plaintiff was unhappy with Defendant Sipp, she was acting in a judicial capacity and is therefore entitled to absolute judicial immunity. As such, Plaintiff's claims against her should be dismissed. See, e.g., Sanders v. Herin, No. 3:19-cv-1503-JMC-PJG, 2019 WL 9242906, at *3 (D.S.C. Dec. 12, 2019) (dismissing claims against ALJ on basis of judicial immunity), Report and Recommendation adopted by 2020 WL 2059812 (D.S.C. Apr. 29, 2020).
Conclusion
Each of Plaintiff's claims in the Amended Complaint are subject to dismissal for the reasons above. Plaintiff has already been afforded an opportunity to amend his pleadings to state a cognizable claim for relief. Plaintiff's Amended Complaint brings the same claims against the same Defendants on the same allegations as the original Complaint. As such, the undersigned concludes that Plaintiff's action should be dismissed without any additional opportunity to amend his pleadings.
CONCLUSION and RECOMMENDATION
Accordingly, for the reasons explained above, it is recommended that the Amended Complaint be summarily DISMISSED without issuance and service of process.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).