United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
matter comes before the Court on two motions: (1) the
"Motion to Dismiss Plaintiffs Complaint" (the
"Motion to Dismiss"),  filed by Defendants the
Commonwealth of Virginia (the "Commonwealth" or
"Virginia"), the Virginia Department of Medical
Assistance Services ("DMAS"), and Valerie Harrison
(collectively, the "Defendants"), (ECF No.
and, (2) Motley's "Motion to Compel Answers to
Plaintiffs First Discovery Request and Motion to Enlarge
Record" (the "Motion to Compel and Enlarge"),
(ECF No. 6).
has responded to the Motion to Dismiss, (ECF No. 4), and the
Defendants have replied, (ECF No. 5). The Defendants have
responded to the Motion to Compel and Enlarge, (ECF No. 8),
and Motley has replied, (ECF No. 11). Accordingly, the
matters are ripe for disposition. The Court dispenses with
oral argument because the materials before it adequately
present the facts and legal contentions, and argument would
not aid the decisional process.
reasons that follow, the Court will grant the Motion to
Dismiss and will deny as moot the Motion to Compel and
Factual and Procedural Background
filed his Motion for Judgment (the "Complaint") in
the State Court, alleging two counts against the Defendants:
(1) age and race discrimination (collectively, "Count
I"); and, (2) negligence ("Count
II"). (Compl., ECF No. 1-1.) The Defendants removed the
case to this Court pursuant to 28 U.S.C. §§
and 1446. The Defendants assert federal question
jurisdiction under 28 U.S.C. § 1331 as their basis
to removal, the parties filed various pleadings in the State
Court. Motley filed his "Request for Production of
Documents, " (ECF No. 1-3), his "Notice of
Objection to Defendants Resisting or Obstructing of Legal
Process, " (ECF No. 1-3), and his "Motion for Leave
to Amend Motion for Judgment" (the "Motion for
Leave to Amend"), (ECF No. 1-4). The Defendants filed a
Demurrer, seeking to demur the Complaint for failure to state
a claim, (ECF No. 1-5), and a Motion to Dismiss/Special Plea
of Sovereignty, seeking to dismiss the Complaint on the
grounds that sovereign immunity bars it, (ECF No. 1-6).
removal, the Defendants filed the Motion to Dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
incorporating the arguments submitted to the State Court.
(ECF No. 3.) Motley responded to the Motion to Dismiss, (ECF
No. 4), and the Defendants replied, (ECF No. 5). Motley then
filed the Motion to Compel and Enlarge. (ECF No. 6.) The
Defendants responded to the Motion to Compel and Enlarge,
(ECF No. 8), and Motley replied, (ECF No. 11).
Summary of Allegations in the
brings this action against the Defendants, seeking only
monetary damages for race and age discrimination, and for
negligence. Motley applied for a position as a Hearing
Officer with DMAS on or about August 7, 2013. On October 15,
2013, Motley learned that DMAS did not select him for an
interview. On January 27, 2014, Motley filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission (the "EEOC"), alleging race and age
discrimination pursuant to Title VII and the ADEA.
Motley's EEOC Charge of Discrimination contained two
paragraphs, which stated the following:
1. On August 7, 2013, I applied for the position of Hearing
Officer with the above named employer. On or about October
15, 2013, 1 became aware that I was not chosen for an
interview and subsequently not hired for the position.
2. I believe I was discriminated against because of my race,
Black, in violation of Title VII of the Civil Rights Act of
1964, as amended, and because of my age, 60, in violation of
the Age Discrimination in Employment Act of 1967, as amended.
(EEOC Charge of Discrimination, ECF No. 3-1.) On August 14,
2015, the EEOC issued a Dismissal and Notice of Right to Sue.
district courts have a duty to construe pro se
pleadings liberally. Bracey v. Buchanan, 55
F.Supp.2d 416, 421 (E.D. Va. 1999). That said, apro
se plaintiff must nevertheless allege sufficient facts
to state a cause of action. Id. (citing Sado v.
LelandMem 7 Hosp., 933 F.Supp. 490, 493 (D. Md.
1996)). The Court cannot act as a pro se
litigant's "advocate and develop, sua
sponte, statutory and constitutional claims" that
the litigant failed to raise on the face of the complaint.
Newkirk v. Circuit Court of Hampton, No. 3:14cv372,
2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).
Analysis: The Motion to Dismiss for Lack of Subject-Matter
Defendants seek to dismiss, for lack of subject-matter
jurisdiction, particular counts against specific defendants.
With respect to Count LA, Motley's ADEA claim, the
Defendants argue the following: (1) the Eleventh Amendment to
the United States Constitution bars Motley's claim
against all defendants; and, (2) Motley's claim against
Harrison in her official capacity fails because it is
duplicative. On Count LB, Motley's Title VII claim, the
Defendants contend that Motley's claim against Harrison
in her official capacity fails because it is duplicative. On
Count I.C, Motley's § 1983 claim, the Defendants
assert that it cannot survive because Motley fails to raise
it against any defendant in his or her individual capacity.
The Defendants also posit that Motley cannot advance an age
discrimination claim under § 1983. Regarding Count II,
Motley's negligence claim, the Defendants contend that
they have sovereign immunity against Motley's negligence
claim. The Defendants also argue that Motley failed to comply
with the Virginia Tort Claims Act's (the
"VTCA") notice requirements, Va. Code §
8.01-195.1 et seq., and that Virginia's statute
of limitations bars any claims brought pursuant to §1983
or the VTCA.
reasons that follow, the Court will dismiss the following
claims for lack of jurisdiction: Counts I.C and II against
all Defendants; and, Counts LA and LB against only Harrison.
Motion to Dismiss for Lack of Subject-Matter Jurisdiction
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) challenging the Court's subject-matter
jurisdiction, the burden rests with the plaintiff, as the
party asserting jurisdiction, to prove that federal
jurisdiction is proper. See Int'l Longshoremen's
Ass'n v. Va. Int'l Terminals, Inc., 914 F.Supp.
1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
can attack subject-matter jurisdiction in two ways. First, a
Rule 12(b)(1) motion may attack the complaint on its face,
asserting that the complaint fails to state a claim upon
which subject-matter jurisdiction can lie. See Int'l
Longshoremen 'sAss'n, 914 F.Supp. at 1338;
see also Adams, 697 F.2d at 1219. In such a
challenge, a court assumes the truth of the facts alleged by
plaintiff, thereby functionally affording the plaintiff the
same procedural protection he or she would receive under Rule
12(b)(6) consideration. See Int'l Longshoremen's
Ass 'n, 914 F.Supp. at 1338; see also
Adams, 697 F.2d at 1219.
12(b)(1) motion may also challenge the existence of
subject-matter jurisdiction in fact, apart from the
pleadings. See Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991); Int'l Longshoremen's Ass'n, 914
F.Supp. at 1338; see also Adams, 697 F.2d at 1219.
In such a case, because a party challenges the court's
'"very power to hear the case, '" the trial
court is free to weigh evidence to determine the existence of
jurisdiction. Int'l Longshoremen's Ass
'n, 914 F.Supp. at 1338 (quoting Mortensen v.
First Fed. Sav. & LoanAss'n, 549 F.2d 884, 891
(3d Cir. 1977)). No presumptive truthfulness attaches to the
plaintiffs allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
See id; see also Adams, 697F.2datl219.
facts necessary to determine jurisdiction are intertwined
with the facts central to the merits of the dispute, the
proper course of action is for the court to find that
jurisdiction exists and then to resolve the factual dispute
on the merits unless the claim is made solely for the purpose
of obtaining jurisdiction, or is determined to be wholly
insubstantial and frivolous. Bell v. Hood, 327 U.S.
678, 682-83 (1946); United States v. North Carolina,
180 F.3d 574, 580 (4th Cir. 1999); Adams, 697 F.2d
The Eleventh Amendment Does Not Bar Count
they seek dismissal based on Eleventh Amendment immunity, the
Defendants voluntarily removed this case to this Court. Thus,
the Eleventh Amendment does not bar Motley's Count LA,
which alleges a violation of the ADEA.
Eleventh Amendment bars claims against state actors unless
Congress has "abrogate[d] the [s]tates' Eleventh
Amendment immunity ... by stating unequivocally its desire to
do so and only pursuant to a valid exercise of constitutional
authority." Constantine v. Rectors & Visitors of
George Mason Univ.,411 F.3d 474, 484 (4th Cir. 2005)
(citing Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 55 (1996)). As the United States Court of Appeals for the
Fourth Circuit has explained, 'the Supreme Court [of the