Opinion
Civil Action 1:21-CV-50
12-09-2022
ZACHARY KNOTTS and ELLEN HEINE, Plaintiffs, v. BOARD OF DIRECTORS OF JW RUBY MEMORIAL HOSPITAL; CHRISTINE S. VAGLIENTI, ESQ.; SHONNETTE J. KINGSTON; ADAM BAUS; THE WV BOARD OF MEDICINE; and JOHN AND JANE DOE 1 THROUGH 10, Defendants.
REPORT AND RECOMMENDATION, RECOMMENDING THAT MOTION TO DISMISS [ECF NO. 38] OF DEFENDANTS SHONETTE J. KINGSTON AND ADAM BAUS BE GRANTED
MICHAEL JOHN ALOL UNITED STATES MAGISTRATE JUDGE
On April 19, 2021, pro se Plaintiffs Ellen Heine (“Heine”) and Zachary Knotts (“Knotts”), (collectively, “Plaintiffs”), filed a Complaint against Defendants Shonnette J. Kingston (“Kingston”), Adam Baus (“Baus”), and others, in relation to a series of events which Plaintiffs allege began in the Spring of 2019. [ECF No. 1]. Plaintiffs failed to serve the original Complaint on any Defendant, and on October 26, 2021, the Court entered an Order dismissing the Complaint, without prejudice. [ECF Doc. 20]. On April 20, 2022, Plaintiffs moved for leave to amend the Complaint [ECF No. 23], and the Court granted the Motion on April 26, 2022. [ECF No. 24]. On May 9, 2022, Plaintiffs filed an Amended Complaint. [ECF No. 26].
By Order dated May 9, 2022 [ECF No. 27], the Hon. Thomas S. Kleeh, United States District Judge, referred the matter to the undersigned Magistrate Judge to review the record and issue written orders or reports and recommendations, as appropriate. On August 22, 2022, two Defendants - namely, Kingston and Baus (collectively, “Defendants”) - filed a Motion to Dismiss and supporting Memorandum of Law. [ECF Nos. 38, 38-1]. On August 23, 2022, the Court entered a Roseboro notice [ECF No. 39] as to the pending Motion to Dismiss, affording Plaintiffs 21 days to respond to the motion. By a filing [ECF No. 54] of September 7, 2022, which the Court construed as a motion, Plaintiffs requested an extension of time to file a response. By Order [ECF No. 55] dated September 9, 2022, the Court granted Plaintiffs' request for an extension, directing that any such response be filed by October 17, 2022. Plaintiffs have not filed a response as of the date of this Report and Recommendation.
For the reasons stated herein, the undersigned respectfully RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED, and Plaintiffs' Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice as to these Defendants.
I. PARTIES' CONTENTIONS
A. Plaintiffs' Complaint [ECF No. 1]
In their original Complaint, Plaintiffs assert two causes of action: (1) Fraud and (2) “Constitutional Violations.” [ECF No. 1, at 3-4]. Plaintiffs' interactions with Defendants appear to stem from Knotts's failed attempts to obtain certain medical records from the hospital entity with which Defendants are affiliated. It also appears that Knotts's communications with the hospital escalated such that state criminal charges against him were lodged. Plaintiffs thus seem to take issue with the roles which Defendants had in reporting such communications to law enforcement.
Plaintiffs base their cause of action for Fraud on the failure of the hospital entity with which Defendants are affiliated “to treat Knotts for services he required,” and instead, providing “fraudulent records” which would be used to re-enforce criminal complaints against him. Id. Further, Plaintiffs assert they were wrongly charged $900 due to “improper patient coding.” Id. Plaintiffs also allege Defendants are liable for “false imprisonment [and] false records that contribute to misdiagnosis on future medical visits and harm to the [] body.” Id.
Plaintiffs base their cause of action for Constitutional Violations on the conversations Knotts had with Kingston, Baus, and co-defenant Vaglienti, to inquire about the name of a neurologist. Id. Specifically, Plaintiffs assert “[Knott's] free speech in conversation with [Defendants Vaglient[i], Kingston, and Baus was turned into a criminal investigation.” Id. Plaintiffs assert these phone calls led the hospital to engage in the “continuation of false imprisonment [and] false records that contribute to misdiagnosis on future medical visits and harm to the defendant's body.” Id. Plaintiffs further allege that Knotts's “free speech” was violated by using his phone calls to the hospital requesting medical records as the basis for a criminal complaint for telephone harassment. Id.
Plaintiffs seem to allege that their causes of action arise, initially, from an incident which occurred on April 17, 2019. They allege that they were at a restaurant in Morgantown, West Virginia eating lunch. [ECF No. 1, at 2]. While there, Knotts had a seizure; the “ambulance report [confirmed] that the patient had a seizure.” Id. The ambulance transferred Knotts to the hospital with which Defendants are affiliated, where “the hospital report noted that the patient had mental issues even though the medical history provided indicated that the event was a seizure.” [ECF No. 1, at 2-3; ECF No. 26, at 2-3]. Knotts appears to have been transferred to a different facility, Fairmont General Hospital, for further treatment/evaluation.
B. Plaintiffs' Amended Complaint [ECF No. 26]
Plaintiffs' Amended Complaint [ECF No. 26] contains additional allegations against Defendants in regard to the seizure incident and subsequent hospitalization at Fairmont General Hospital. The Amended Complaint includes a new cause of action, Count Three, Americans with Disability Act (“ADA”) Violations. [ECF No. 26, at 9]. Plaintiffs' ADA claim with respect to Kingston stems from Kingston's alleged failure to procure “names and numbers of doctors throughout the state” who Plaintiffs wished to consult as medical experts in litigation. Id., at 10. With respect to Baus, Plaintiffs complain that he had “concerns about [Knotts]” and felt “that some level [of] police is warranted.” Id. Plaintiffs allege the criminal charges which resulted from the various phone calls posed a “rather pricey barrier [referencing bail] for a disabled person.” Id. It seems that Plaintiffs' ADA complaints about these Defendants are that they did not assist Knotts as he demanded, stymied Knotts's attempts to otherwise gain aid, and unnecessarily involved law enforcement.
C. Defendants' Motion to Dismiss [ECF No. 38]
In their motion to dismiss, Defendants raise four arguments as to why Plaintiffs' claims should be dismissed. First, Defendants argue that Plaintiffs failed to properly serve the Summons and Amended Complaint, entitling them to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(5). Second, Defendants argue the causes of action are time-barred by the applicable statutes of limitation. Third, Defendants argue they are entitled to dismissal based on the operation of (a) qualified immunity and (b) immunity afforded under the Eleventh Amendment of the United States Constitution. Fourth and finally, Defendants argue that Plaintiffs fail to state claims on which relief may be granted, such that Defendants are entitled to dismissal under Fed.R.Civ.P. 12(b)(6).
II. LEGAL STANDARD
Pro se plaintiffs' claims are to be afforded liberal construction by courts. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A pro se complaint is subject to dismissal, however, if a court cannot reasonably read the pleadings to state a valid claim on which a plaintiff could prevail. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999); see also Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (“Even in the case of Pro se litigants, [courts] cannot be expected to construct full blown claims from sentence fragments). A court may not construct claimants' legal arguments for them, nor should it “conjure up questions never squarely presented.” Beaudett, 775 F.2d at 1278.
Generally, parties are required to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Correspondingly, a defendant may challenge a complaint which fails to set forth a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In order to survive a motion to dismiss, a complaint must be supported by, “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). As the Supreme Court emphasized, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And as the Fourth Circuit has noted, Rule 12(b)(6) requires a claimant to “articulate facts, when accepted as true . . . ‘show' that [the claimant] has stated a claim entitling [them] to relief.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
III. ANALYSIS
A. The undersigned recommends dismissal under Federal Rule of Civil Procedure 12(b)(5) because Plaintiffs failed to properly serve the Summons and Amended Complaint upon Defendants.
Federal Rule of Civil Procedure 4(c) provides, “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c) (emphasis added). Further, Fed. R. Civ. P 4(e) outlines the manner for serving an individual within a judicial district of the United States, providing for:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Fed. R. Civ. P. 4(e). West Virginia Rule of Civil Procedure Rule 4(d)(1) sets forth the manner in which an individual may be served by mail. Specifically, Rule 4(d)(1)(D) provides service upon an individual may be made by, “The clerk sending a copy of the summons and complaint to the individual to be served by certified mail, return receipt requested, and delivery restricted by the addressee.” W.Va. R. Civ. P. 4(d)(1)(D) (emphasis added). Further, Rule 4(d)(1)(E) provides service may also be made by “The clerk sending a copy of the summons and complaint by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to Form 14 and a return envelope, postage prepaid, addressed to the clerk.” W.Va. R. Civ. P. 4(d)(1)(E) (emphasis added).
Under Fed.R.Civ.P. 12(b)(5), a party may move to dismiss a complaint for insufficient service of process.
Here, Plaintiffs attempted to serve their Amended Complaint on Defendants via Fedex Ground delivery on August 4, 2022. [ECF No. 37]. Because neither the Federal Rules of Civil Procedure nor the West Virginia Rules of Civil Procedure permit service by mail other than United States certified or first-class mail, Plaintiff's service upon Defendants is improper. Thus, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and that the action be DISMISSED with prejudice under Rule 12(b)(5) as to these Defendants.
B. The undersigned recommends Plaintiffs' claims be dismissed because they are time-barred by the applicable two-year statutes of limitations.
Even if Plaintiffs had properly served Defendants, the causes of action are time-barred under the applicable statutes of limitations.
As for Count One (Fraud), “Under West Virginia law, claims for fraud and misrepresentation are governed by a two-year statute of limitation.” Yoe v. Branch Banking & Tr. Co., No. 3:13-CV-173, 2014 WL 713283, at *7 (N.D. W.Va. Feb. 25, 2014), aff'd 585 Fed.Appx. 178 (4th Cir. 2014) (citing W.Va. Code § 55-2-12)); see also McCausland v. Mason Cty. Bd. of Educ., 649 F.2d 278, 279 (4th Cir. 1981).
As for Count Two (Constitutional Violations), the claim sounds in 42 U.S.C. § 1983. As Defendants rightly note, “courts considering § 1983 claims should borrow the general or residual statute [of limitations] for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249-50 (1989). To this end, the applicable West Virginia statute, W.Va. Code § 55-2-12 provides that “Every action for which no limitation is otherwise prescribed shall be brought . . . (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries . . . .” (emphasis added).
As for Count Three (ADA Violations), Title II claims under the ADA are subject to a two-year statute of limitations, as federal courts “borrow the state statute of limitations that applies to the most analogous state-law claim,” which would be violations brought under the West Virginia Human Rights Act (“WVHRA”). A Soc'y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011); see also Brown v. Belt, No. 2:15-CV-11549, 2019 WL 1302627, at *5 (S.D. W.Va. Mar. 21, 2019) (explaining that ADA claims brought in West Virginia are subject to a two-year statute of limitations because claims asserted under the WVHRA are subject to a two-year limit).
Here, Plaintiffs' claims arise from telephone calls and correspondences by Knotts to the hospital facility with which Defendants are affiliated. Plaintiffs take issue with Defendants' failure to help Knotts glean information and records, and Defendants' roles in reporting Knotts's conduct to law enforcement, by which criminal charges against Knotts were lodged. In taking a view most favorable to the Plaintiffs, the statute of limitations began to run on April 8, 2019, when the events giving rise to this cause of action ended by way of criminal arrest of Knotts. Because Plaintiffs filed their original Complaint on April 19, 2021, beyond the two-year statute of limitations for all three causes of action, their claims are time-barred.
Consequently, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and that all of Plaintiffs' claims be DISMISSED with prejudice as to these Defendants.
C. The undersigned recommends that Defendants' Motion to Dismiss be granted by operation of (1) the principle of qualified immunity and (2) Eleventh Amendment immunity.
Plaintiffs have not pled their claims sufficiently to show that Defendants, as public employees, do not enjoy immunity from these claims. There are two types of immunity at issue here. The first, “state sovereign immunity,” arises from the Eleventh Amendment to the United State Constitution, which provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Const. amend. XI. “[T]his protection extends also to ‘state agents and state instrumentalities' or stated otherwise, to ‘arms of the State' and State Officials.” Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001) (citations omitted).
Eleventh Amendment immunity is a defense with “attributes of both subject-matter jurisdiction and personal jurisdiction.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th 2005). Thus, an Eleventh Amendment defense may be addressed pursuant to a motion to dismiss for lack of subject matter under Rule 12(b)(1) or pursuant to a motion to dismiss under 12(b)(6). Sarkissian v. W. Virginia Univ. Bd. of Governors, No. 1:05-CV-144, 2007 WL 1308978, at *3 (N.D. W.Va. May 3, 2007).
The second type of immunity at issue here, qualified immunity, serves to shield government employees and officials who performed acts in the course of their government duties. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
On questions of immunity generally, the Supreme Court has emphasized “the importance of resolving immunity questions at the earliest possible stage in litigation ....” Hunter v. Bryant, 502 U.S. 224, 227 (1991). Additionally, “Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency of the complaint, not an analysis of potential defenses to the claims set forth therein, dismissal nevertheless is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.” Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011).
1. Qualified Immunity
Count II of the Amended Complaint alleges that Defendants violated Plaintiffs' constitutional rights, and more specifically, violated their freedom of speech as guaranteed by the First Amendment. Defendants argue that Plaintiffs' § 1983 claim must be dismissed because Defendants are entitled to qualified immunity, as Defendants are employees of the State of West Virginia through their employment at West Virginia University. [ECF No. 38, at 10].
The doctrine of qualified immunity protects government officials against claims made for discretionary acts done in such persons' official capacity. Qualified immunity operates as a civil liability shield for “government officials . . . performing discretionary functions . . . insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. As a practical matter, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The qualified immunity defense is burdenshifting, in that once it is asserted, it then falls to a claimant to show that the conduct complained of (1) violated the law, and (2) the law that was violated was clearly established at the time of the alleged conduct. Bryan v. Muth, 994 F.2d 1082, 1086 (4th Cir. 1993).
Additionally, relative to the Constitutional Violations claim, “[a] defendant sued under 42 U.S.C. § 1983 may assert a defense of qualified immunity.” Id. Furthermore, “[t]he subjective belief or motive of a government official is irrelevant to the issue of qualified immunity. Instead, the inquiry focuses on what a reasonable official in the same position would have believed.” Id. (citation omitted).
In the instant matter, the undersigned concludes that, in light of Plaintiffs' poorly pled facts and the lack of cogent (or any) argument to the contrary, qualified immunity should operate to bar Plaintiffs' claims here as to these Defendants. Plaintiffs' allegations, which mainly are conclusory and unsupported by properly-detailed facts, do not set forth how the acts complained of violate clearly established law. In other words, Plaintiffs do not set forth in the Complaint which acts violated which laws, and how those laws were in existence at the time of the alleged acts. A well-pleaded complaint could defeat a qualified immunity defense at this stage, but Plaintiffs' Amended Complaint, being as disjointed as it is, must fail. It is not the Court's role to aid Plaintiff in rehabilitating a claim to withstand dismissal, but rather to evaluate the record as developed and presented by the parties.
In sum, Plaintiffs' allegations expressly relate, and fail to extend beyond, Defendants' work in their official capacities. Accordingly, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and that all of Plaintiffs' claims be DISMISSED with prejudice as to these Defendants.
2. Immunity under the Eleventh Amendment
The Eleventh Amendment to the United States Constitution generally bars individuals from filing suit against a State “unless the State has waived its immunity, . . . or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989) (internal citations omitted). Relative to the Constitutional Violations claim, the Supreme Court has “made clear” that “Congress, in passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity[.]” Id., at 66 (citing Quern v. Jordan, 440 U.S. 332 (1979)).
In the context of the instant matter, courts have “almost universally” recognized that public state universities are “arms of the state.” Maryland Stadium Authority v. Ellerbe Becket Incorporated, 407 F.3d 255, 262 (4th Cir. 2005) (citations and quotations omitted). See W. Virginia Univ. Bd. of Governors ex rel. W. Virginia Univ. v. Rodriguez, 543 F.Supp.2d 526, 531 n. 3 (N.D. W.Va. 2008) (citing precedent from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits).
Further, “[j]ust as the State is immune from suits brought under § 1983, likewise are state officials acting in their official capacities immune.” Zimmeck v. Marshall Univ. Bd. of Governors, No. 3:13-CV-14743, 2013 WL 5700591, at *6 (S.D. W.Va. Oct. 18, 2013) See generally Will, 491 U.S. at 71 (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Therefore, “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); Jemsek v. Rhyne, 2016 WL 5940315, at *3 (4th Cir. 2016) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)).
As noted above, Defendants are officials in a state office or entity. As with the qualified immunity analysis above, Plaintiffs do not plead facts or provide any law or argument to the contrary about how Defendants lack Eleventh Amendment immunity here. In the absence of anything to counter Defendants' argument, then, the undersigned concludes that Eleventh Amendment immunity should operate to bar Plaintiffs' claims. Accordingly, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and that all of Plaintiffs' claims be DISMISSED with prejudice as to these Defendants.
D. The undersigned recommends Defendants' Motion to Dismiss be granted as the Amended Complaint fails to state a claim for which relief may be granted.
In addition to the issues of Plaintiffs' improper service, time-barred claims, and Defendants' immunity, the Amended Complaint fails to state a claim upon which relief may be granted. Rule 8(a) of the Federal Rules of Civil Procedure does not generally require that claims be pled with great detail. See Fed.R.Civ.P. Rule 8(a). Nonetheless, claims must be pled with sufficient detail that a defendant has fair notice of the basis of plaintiff's claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). As articulated by the Fourth Circuit:
It is established that a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. We have recognized that facial plausibility is established once . . . the complaint's factual allegations produce an inference . . . strong enough to nudge the plaintiff's claims across the line from conceivable to plausible. In assessing the sufficiency of a complaint, we assume as true all its well-pleaded facts and draw all reasonable inferences in favor of the plaintiff. Thus, to satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual
heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged.Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal citations and quotations omitted). As to all of their claims, Plaintiffs have failed to meet this minimum threshold for pleading. Thus, the Amended Complaint should be dismissed as to Defendants for failure to state a claim for which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
1. Count One (Fraud)
To successfully recover under the theory of fraud, a plaintiff must prove three elements: “(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that the plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it.” Michael v. Consolidation Coal Co., No. 1:14-CV-212, 2017 WL 1197828, at *13 (N.D. W.Va. Mar. 31, 2017), aff'd, 773 Fed.Appx. 767 (4th Cir. 2019) (quoting Trafalgar House Const., Inc. v. ZMM, Inc., 567 S.E.2d 294, 300 (W.Va. 2002)). Furthermore, the Federal Rules of Civil Procedure implement a heightened pleading standard when alleging fraud by requiring a plaintiff to plead their cause of action with “particularity.” Fed.R.Civ.P. 9(b).
Here, Plaintiffs fail to allege facts which support the elements they must prove to survive the dismissal motion as to the fraud claim. Specifically, Plaintiffs fail to allege any false act or statement made by Defendants - let alone that such act or statement was material, or that Plaintiffs were damaged because of their reliance on it. Confoundingly, Plaintiffs base their claim of fraud on these facts: (1) that Defendants reported to law enforcement certain of Knotts's telephone calls to the hospital requesting Knotts's medical records, and (2) that Defendants failed to assist Knotts in locating a neurologist which he, “needed . . . [as a] medical expert for litigation.” [ECF No. 26, at 10]. These facts, even when taken as true, fall short of satisfying any of the elements to establish a fraud claim. While Plaintiffs contend that Defendants should have provided such information as “part of their activity in a normal business day” [ECF No. 26, at 10], Defendants have no demonstrated duty to provide Plaintiffs with the names of neurologists to use as a medical expert in litigation. And Plaintiffs make no showing of anything fraudulent about Defendants' roles in reporting Knotts's troubling communications to law enforcement. Plaintiffs' failure here falls far short of the heightened pleading standard under Fed.R.Civ.P. 9.
Plaintiffs' fraud claim is nonsensical and meets none of the elements or requirements for pleading a claim for fraud, under Fed.R.Civ.P. 9 and Fed.R.Civ.P. 12(b)(6). Thus, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and that Plaintiffs' claim for Fraud be DISMISSED with prejudice as to these Defendants.
2. Count Two (Constitutional Violations)
Plaintiffs' cause of action in Count Two (Constitutional Violations) is based on 42 U.S.C. § 1983, which allows a party who has suffered a civil rights violation by government actors to seek relief. To recover under a § 1983 claim, “[a] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. More specifically, to maintain a First Amendment retaliation claim under § 1983, a claimant must allege (1) they “engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected [their] First Amendment rights, and (3) there was a causal relationship between [the] protected activity and the defendant's conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (internal citations omitted).
Here, the Amended Complaint fails to allege any conduct by Defendants which supports a colorable § 1983 claim. As Defendants quote Plaintiffs in Defendants' memorandum in support of their dismissal motion, Plaintiffs base this claim on an argument that “Knotts' first amendment right of free speech to the employees of Vagliente [sic], Kingston, and Baus in trying to use their services were [sic] turned into a criminal allegation.” [ECF No. 26, at 7]. Further, Plaintiffs assert that Knotts's “free speech in conversation with the ER doctor about defendants Vagliente [sic], Kingston and Baus . . . resulted in a label of Paranoia.” Id.
Here, there is nothing in the record to show that Knotts's phone calls were anything but harassing. Nor is there anything to dispute that the calls resulted in criminal charges against Knotts. As such, in the circumstances of this particular case, there is no showing that Knotts's speech was protected under the First Amendment. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (the First Amendment rarely affords protection to speech “used as an integral part of conduct in violation of a valid criminal statute.”). Moreover, Plaintiffs do not allege their speech was chilled by an overly broad statute or by the direct actions of Defendants. Even when accepting Plaintiffs' alleged facts as true, allegedly false accusations in the instant context are not actionable under First Amendment retaliation jurisprudence. See e.g., Colson v. Groham, 174 F.3d 498, 512 (5th Cir. 1999) (holding a citizen's First Amendment rights were not adversely affected because criticism alone and false accusations are not actionable under First Amendment retaliation jurisprudence).
Thus, for failure to meet the pleading standard under Fed.R.Civ.P. 8, and resulting failure to state a claim for which relief may be granted under Fed.R.Civ.P. 12(b)(6), the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and that Plaintiffs' claim for Constitutional Violations be DISMISSED with prejudice as to these Defendants.
3. Count Three (ADA Violations)
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA further provide that a claimant is so “qualified” if they are “an individual with a disability who, with or without reasonable modification to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131. To state a claim for which relief may be granted under Title II of the ADA, a plaintiff must show: (1) they have a disability, (2) they are otherwise qualified to receive the benefits of a public body's services/programs/activities, and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, based only on their disability. Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999).
In the present action, Plaintiffs have failed to assert they have a recognized disability to entitle them to relief under the ADA. Thus, Plaintiffs are unable to show they were “excluded from participation in or denied the benefits of [a public service] . . . on the basis of their disability.” Id. And although that is essentially the end of the inquiry - Plaintiffs' failure to meet the first prong of the test - Plaintiffs have done nothing to show that they are qualified to receive such benefits, or that they were thwarted on the basis of a disability. Thus, the ADA claim fails per Fed.R.Civ.P. 8
Thus, for failure to state a claim for which relief may be granted under Fed.R.Civ.P. 12(b)(6), the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and that Plaintiffs' claim for ADA Violations be DISMISSED with prejudice as to these Defendants.
IV. RECOMMENDATION
For the reasons stated herein, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 38] be GRANTED and Plaintiffs' Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice as to these Defendants.
Any party shall have fourteen (14) days (filing of objections) and then three days (mailing/service) from the date of the filing of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Thomas S. Kleeh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all counsel of record by electronic means, and to the Pro se Plaintiffs by certified mail, return receipt requested.