Opinion
3:22-cv-645-RAH-JTA
11-21-2024
MICHAEL A. KENNEDY, Plaintiff, v. STATE OF ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
JERUSHA T. ADAMS, UNITED STATES MAGISTRATE JUDGE
Before the court is the Motion to Dismiss filed by the Defendant named in the amended complaint as Alabama State Legal Departmentand by Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins. (Doc. No. 114.) For the reasons stated below, the undersigned recommends the motion to dismiss be granted.
The movants contend that an entity known as “Alabama State Legal Department” does not exist. (Doc. No. 114 at 1.)
Of these Defendants, only the Alabama State Legal Department was named in the caption of the amended complaint. (Doc. No. 62 at 1.) Although not named in the caption of the amended complaint, Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins are named as Defendants in the body of the amended complaint as “includ[ed]” in the Alabama State Legal Department. (Id. at 1, 4 ¶ 17.) Accordingly, viewing the amended complaint in the light most favorable to Plaintiff, he sues Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins in their capacities as state officials representing the Alabama State Legal Department (or whatever state entity on whose behalf they provided legal advice). Interpreting the amended complaint in this way does not prejudice Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, or Tony Higgins, because they clearly understood themselves to be Defendants and filed the instant motion to dismiss referring to themselves as such. (Doc. No. 115.) There is no basis for interpreting the amended complaint as separately naming Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins in their individual capacities because the amended complaint contains no such indication. It merely indicates that they are “include[d]” in the claims against the Alabama State Legal Department. (Doc. No. 1 at 4 ¶ 17.) In any event, as discussed more fully in Section III of this Recommendation, Plaintiff has, at most, alleged FMLA claims against Defendants. “[A] public official sued in his or her individual capacity is not an ‘employer' under the FMLA, and therefore there is no federal subject matter jurisdiction over” individual-capacity FMLA claims against public officials. Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999). Hence, it would be futile to interpret the amended complaint as stating individual-capacity claims against Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins.
I. JURISDICTION
Pursuant to 28 U.S.C. § 636, this case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings and entry of any order or recommendations as may be appropriate. (Doc. No. 6.) This court has subject matter jurisdiction over this action based on federal question jurisdiction, as Plaintiff's causes of action arise under the Constitution and laws of the United States. 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue, and the court finds sufficient allegations to support both in the Middle District of Alabama.
II. STANDARD OF REVIEW
When evaluating a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a 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)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
Because it is not drafted by an attorney, the complaint of a pro se plaintiff must be liberally construed. See Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“‘[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))). Nevertheless, the factual allegations in the complaint must state a plausible claim for relief, Ashcroft, 556 U.S. at 678, and the court is not “‘bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Hopkins v. St. Lucie Cty. Sch. Bd., 399 Fed.Appx. 563, 565 (11th Cir. 2010) (“While the pleadings of pro se litigants are liberally construed, they must still comply with procedural rules governing the proper form of pleadings.” (internal citations and quotation marks omitted)). The complaint's factual allegations need not be detailed but “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).” Twombly, 550 U.S. at 555 (citations omitted); see also Erickson, 551 U.S. at 93 (applying Twombly to a pro se complaint). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 662, 678; see also Twombly, 550 U.S. at 555 (holding that a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Moreover, the leniency afforded the construction of pro se pleadings is not license for the court “to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient pleading . . . to sustain a cause of action.” Nails v. AmeriCredit, No. CIV.A. 2:10CV826, 2011 WL 310254, at *1 (M.D. Ala. Jan. 6, 2011) (quoting GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)), report and recommendation adopted, No. 2:10CV826-MHT, 2011 WL 304790 (M.D. Ala. Jan. 28, 2011).
III. DISCUSSION
Pro se Plaintiff Michael A. Kennedy filed the amended complaint (Doc. No. 62) pursuant to the March 6, 2024 Order of the District Judge (Doc. No. 59) allowing him an opportunity to amend and providing the following specific instructions for doing so.
The March 6, 2024 Order (Doc. No. 59) adopted the February 8, 2024 Recommendation of the Magistrate Judge (Doc. No. 53), in which the undersigned recommended that a prior motion to dismiss be granted in part and denied in part and Plaintiff be allowed an opportunity to amend his pleadings to properly state his remaining claims. The relevant procedural history of this case leading up to the February 8, 2024 Recommendation is contained in that Recommendation (Doc. No. 53 at 6-8), which can be found at Kennedy v. Dep't of Transportation, No. 3:22-CV-645-RAH-JTA, 2024 WL 1602846, at **3-4 (M.D. Ala. Feb. 8, 2024), report and recommendation adopted, No. 3:22-CV-645-RAH, 2024 WL 965612 (M.D. Ala. Mar. 6, 2024).
a. Plain[tiff] shall amend his complaint to more specifically state any familycare FMLA claims, any self-care FMLA claims for prospective equitable relief, and any ADA claims for prospective equitable relief.
b. Plaintiff shall amend his complaint to name an appropriate state official (rather than a state agency) as a defendant for purposes of injunctive relief with respect to any equitable self-care FMLA retaliation and ADA claims.
c. The amended complaint must set out in separately numbered paragraphs a short, plain statement of the facts on which Plaintiff bases his claims. To the
extent possible, for each act of alleged discrimination or other wrongful conduct, Plaintiff should include the date(s) of the alleged wrongful conduct, a sufficient description of the alleged wrongful conduct, the names of the Defendant(s) or other persons who allegedly engaged in that conduct, and the facts supporting his contention that wrongful conduct occurred.
d. The amended complaint must set out Plaintiff's legal claims in separate counts, with one claim per count, referencing the specific allegations of fact that support each legal claim. “If doing so would promote clarity, each claim founded on a separate transaction or occurrence ... must be stated in a separate count.” Fed.R.Civ.P. 10(b).
e. The amended complaint shall state plainly the monetary damages and injunctive relief Plaintiff requests from the court.
f. The amended complaint shall comply with the Federal Rules of Civil Procedure, including Rule 8(a), Rule 8(d), and Rule 10.
Plaintiff is CAUTIONED that failure to timely file an amended complaint in accordance with the Court's Order may constitute grounds for dismissal for failure to prosecute this case and for failure to comply with the Court's orders.
(Doc. No. 59 at 4-5 (emphasis added; footnotes omitted).)
In the amended complaint (Doc. No. 62), Plaintiff alleges that all Defendants named subjected him to discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213; violated his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654; and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000h. Plaintiff provides the following allegations pertaining to Defendants Alabama State Legal Department, Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins:
Defendant Alabama State Legal Department was the Attorney General of the State of Alabama office over Plaintiff during the time period of this complaint. The Alabama State Legal Department includes: Attorney General Steve Marshall, Chief Counsel William Patty, Assistant Counsel Christy Coan, Assistant Counsel Robert Prescott, Assistant Counsel Kaasha Griffin, Assistant Counsel Allison Taylor and Assistant Counsel Tony Higgins (collectively, “Defendants of Legal Department”). At relevant times, Defendants of Legal Department participated in the discriminatory/retaliatory and otherwise unlawful decisions and actions taken against Plaintiff.
(Doc. No. 62 at 4 ¶ 17 (sic).)
On October 25, 2021, Plaintiff was present with documents by Taylor Oliver to discipline him for taking FMLA days and exercising his accommodation agreement rights. This is a violation of Plaintiff FMLA rights and ADA 1990 rights from the accommodation. The State Legal Department illegally takes FMLA hours away from Plaintiff account without approved, violating FMLA rules and regulations. Plaintiff was also disciplined for taking 5 days off for medical reasons between June 1,2021 and October 25,2021. During the same time period, Project Manager Taylor Oliver took off 13 days, Leernest McBride took off 22 days, Sean Patterson took off 11 days, Seth Johnson took off 5 days and Don Reckart took off 12 days. None of these other co-workers were disciplined for taking days off, which is a violation of Plaintiff federal rights to be treated the same as others through ADA 1990.
(Doc. No. 62 at 6 ¶ 32 (emphasis added, otherwise sic).)
On November 22, 2021, Plaintiff received letter from Stephanie Henderson stating that his FMLA hours were being taken from him and that he was denied two days to use FMLA because of medical disability. This violates Plaintiff federal rights to use FMLA days (FMLA interference) for Plaintiff medical disability and State Legal Department, with Stephanie Henderson assistance, illegally took Plaintiff FMLA leave time.
(Doc. No. 62 at 7 ¶ 36 (emphasis added, otherwise sic).)
October 11, 2023, Plaintiff receives results from U.S. Department of Labor. The conclusion is that Plaintiff was discriminated against and subjected to several violations against him from [the Alabama Department of Transportation (“ALDOT”)] and the State Legal Department[.]
(Doc. No. 62 at 10 ¶ 58.)
Plaintiff seeks the following relief:
A. A declaratory judgement that the actions, conduct and practices of Defendants complained herein/violate the laws of the United States and the State of Alabama;
B. An injunction and order permanently restraining Defendants from engaging in such unlawful conduct;
C. An order directing Defendants to place Plaintiff in a position that provides the least hardship and that he would have occupied but for Defendants' discriminatory, retaliatory and/or otherwise unlawful treatment of him, as well as to take such affirmative action as is necessary to ensure that the effects of these unlawful employment practices and otherwise unlawful conduct are eliminated and do not continue to affect Plaintiff;
D. An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiff for all monetary and/or economic damages, including but now limited to, the lost of past and future income, wages, compensation, job security and other benefits of employment;
E. An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiff for all non-monetary and/or compensatory damages, including, but not limited to, compensation for his severe mental anguish and emotional distress; humiliation, depression, embarrassment, stress and anxiety, loss of self-esteem, self-confidence and personal dignity, and emotional pain and suffering and any other physical or mental injuries;
F. An award of damages in an amount to be determined at trial, plus prejudgment interest, to compensate Plaintiff for harm to his professional and personal reputation and loss of career fulfillment;
G. An award of damages for any and all other monetary and/or nonmonetary losses suffered by Plaintiff in an amount to be determined at trial, plus prejudgment interest;
H. An award of punitive damages;
I. An award of costs that Plaintiff has incurred in this action, as well as Plaintiff's reasonable attorney's fees to the fullest extent permitted by law; and
J. Such other and further relief as the Court may deem just and proper.(Doc. No. 62 at 12-13 (sic).)
Defendants specifically deny that Defendant Alabama State Legal Department exists as a separate legal entity capable of being sued. See Fed.R.Civ.P. 9(a)(2) (providing that, to raise an issue as to “a party's capacity to sue or be sued” or as to “the legal existence of an organized association of persons that is made a party,” “a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge”). Plaintiff's attempt to counter Defendant's denial is unavailing. He contends “[t]he Alabama State Legal Department was referenced by [Defendants] Rebekah Crawford and Stephanie Henderson (exhibit A) as responsible for violating Plaintiff['s] FMLA rights.” (Doc. No. 129 at 2.) Exhibit A, in turn, is a document signed by Defendant Henderson and another individual. It contains the following handwritten note: “Falsified time per Legal which caused more hours to be charged to FMLA.” (Doc. No. 129-1.) The note does not refer to a separate state entity known as the State of Alabama Legal Department.
Although other Defendants are named in the complaint, for the sake of efficiency, unless otherwise specifically indicated, in this Recommendation, the term “Defendants” is a shorthand reference to those Defendants who filed the motion to dismiss. (Doc. No. 114.)
To the extent that Plaintiff is attempting to state a claim against ALDOT's legal department, it should be noted that ALDOT is already a Defendant in this action. (Doc. No. 62 at 1.)
The court has considered whether Plaintiff simply misnamed a separate state legal department or agency, but that does not appear to be the case. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). (“[P]ro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally.”). The amended complaint mentions “Defendant Alabama State Legal Department was the Attorney General of the State of Alabama office over Plaintiff during the time period of this complaint,” and also states that, among others, the Alabama State Legal Department “includes [] Attorney General Steve Marshall” as well as several attorneys who serve as counsel in the Alabama Department of Transportation's legal department. (Doc. No. 62 at 4 ¶ 17 (sic).) Thus, it does not appear that the State of Alabama Legal Department is a single, identifiable entity capable of being sued. Accordingly, Defendant Alabama State Legal Department is due to be dismissed as a Defendant.
Defendants argue that Plaintiff lacks standing to sue them because he only mentions them once in the amended complaint and does not allege that he suffered any injury as a result of their actions. With respect to Plaintiff's FMLA claim, Defendants' argument is simply not correct. (See Doc. No. 62 at 6 ¶ 32, 7 ¶ 36 (alleging Defendants provided legal opinions or directions that deprived Plaintiff of FMLA leave to which he was entitled).) Although Plaintiff alleges generally that the “State Legal Department” and its agents discriminated against him and violated his rights with respect to all of his claims, the only specific factual allegations against these Defendants pertain to their alleged participation in the violation of his FMLA rights by unlawfully “taking” his FMLA leave. (Doc. No. 62 at 7 ¶ 36, 10 ¶ 58.) Plaintiff has not specifically stated how Defendants participated in any activities that deprived him of his rights under the ADA and Title VII. Therefore, with respect to Plaintiff's ADA and Title VII claims, Defendants are correct that Plaintiff fails to allege injury with the requisite specificity, but that is not necessarily a problem of standing in this situation. It is, however, confirmation of his violation of the basic pleading requirements and the March 6, 2024 Order of the District Judge allowing him an opportunity to amend and providing the specific instructions for doing so. (Doc. No. 59 at 4-5 (instructing Plaintiff to amend his complaint to include specific allegations of each Defendant's wrongful actions with respect to “each act of alleged discrimination or other wrongful conduct,” and cautioning Plaintiff that failure to abide by the Order and “the Federal Rules of Civil Procedure, including Rule 8(a)” may result in dismissal for failure to comply with court orders). Kennedy v. Dep't of Transportation, No. 3:22-CV-645-RAH-JTA, 2024 WL 1602846, at *11 (M.D. Ala. Feb. 8, 2024) (explaining the pleading rules to Plaintiff, including the requirements of Iqbal and Twombly, as applied to Plaintiff's original complaint), report and recommendation adopted, No. 3:22-CV-645-RAH, 2024 WL 965612 (M.D. Ala. Mar. 6, 2024). Accordingly, Plaintiff's ADA and Title VII claims against Defendants are due to be dismissed for failure to state a claim upon which relief can be granted and for failure to comply with the March 6, 2024 Order. (Doc. No. 59.)
Again, it should be noted that Plaintiff was specifically instructed that, in his amended complaint, “for each act of alleged discrimination or other wrongful conduct,” he was to sufficiently describe “the alleged wrongful conduct” and provide “the names of the Defendant(s) or other persons who allegedly engaged in that conduct.” (Doc. No. 59 at 4-5.)
Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins also allege that they are entitled to sovereign immunity from Plaintiff's official-capacity FMLA claims against them. They point out that, although the Ex parte Young exception to sovereign immunity allows suit against a state official in an action seeking prospective injunctive or declaratory relief,the person named in his or her official capacity must be someone who is “responsible for the challenged action.” Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir. 1988). That is, “[i]n making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act.” Ex parte Young, 209 U.S. 123, 157 (1908). “The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists.” Id. By virtue of legal advice provided to ALDOT in the fall of 2021, Defendants Steven Marshall, William
There is no need to discuss the applicability of sovereign immunity to other claims or Defendants. To recap, the following points have already been concluded in this Recommendation: (1) Defendant Alabama State Legal Department is due to be dismissed because it does not exist and is not a separate legal entity with the capacity to be sued; (2) as discussed, supra, in footnote 2 of this Recommendation, Plaintiff has asserted no individual-capacity claims against Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins; and (3) Plaintiff has not stated either an ADA or a Title VII claim against Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins.
For further discussion of Ex parte Young, 209 U.S. 123 (1908), with respect to the FMLA claims in Plaintiff's original complaint, see Kennedy, 2024 WL 1602846, at *11.
In his amended complaint, Plaintiff alleges Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins “participated in the discriminatory/retaliatory and otherwise unlawful decisions and actions taken against Plaintiff.” (Doc. No. 62 at 4 ¶ 17.) In his brief in opposition to the motion to dismiss, Plaintiff states that Alabama Attorney General Stephen Marshall “is the leader of all the ‘Legal' attorneys in the state, so he is responsible for their actions” in “direct[ing] Stephanie Henderson to remove FMLA from Plaintiff” in the fall of 2021. (Doc. No. 129 at 2.) Plaintiff does not allege Defendant Marshall is tasked with responsibility for ALDOT's ongoing implementation of the FMLA. Nor does he allege Defendants William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins are responsible for ALDOT's enforcement of the FMLA.
Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins allegedly have some connection to ALDOT's past decision to “take away” FMLA leave from Plaintiff. Yet, there is no indication that, by virtue of that past legal advice, they have any authority or responsibility for ALDOT's implementation and enforcement of the FMLA with respect to any prospective relief that may be available under Ex parte Young. Plaintiff has not alleged or demonstrated otherwise. Accordingly, Plaintiff's officialcapacity FMLA claims against Defendants Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins are due to be dismissed.
IV. CONCLUSION
Accordingly, the undersigned Magistrate Judge RECOMMENDS as follows:
1. The motion to dismiss (Doc. No. 114) be GRANTED.
2. The claims against Defendants Alabama State Legal Department, Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins be DISMISSED.
3. There being no pending claims remaining against them, Defendants Alabama State Legal Department, Steven Marshall, William Patty, Christy Coan, Robert Prescott, Kaasha Griffin, Allison Taylor, and Tony Higgins be DISMISSED from this action.
Further, it is ORDERED that the parties shall file any objections to this Recommendation on or before December 6, 2024. A party must specifically identify the factual findings and legal conclusions in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Plaintiff is advised that this Recommendation is not a final order of the Court; therefore, it is not appealable.
Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1; see Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).