United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Virginia
Department of Motor Vehicles (“DMV”), Jeannie
Thorpe, Terry Witt, Nancy Nolde, and Robert Irving's
Motion to Dismiss Plaintiff William Braddock's Complaint.
The issue was briefed by the parties and I heard arguments in
open court on March 22, 2018. For the reasons stated in open
court and set forth more fully herein, I will grant the
Motion to Dismiss and afford Plaintiff the opportunity to
file an amended complaint, if he so chooses.
STATEMENT OF FACTS AND PROCEDURAL
who is proceeding pro se, alleges in a form
complaint that he was employed by the DMV. He asserts that
his “position was filled after going out on medical
leave in April 2015.” He further alleges that he was
“placed in a different position that was not a real
position, only a token gesture, after complaining.” He
also claims he was retaliated against, saying that
“[r]etaliation continued in numerous forms through
not included in his Complaint, but filed by the Defendants,
Plaintiff's Charge of Discrimination says that he
requested time off in April 2015 as a “reasonable
accommodation” and was out of work until September
2015. While he was out, his employer filled his position and,
when he returned, he was placed in a Generalist position. He
asserts that these actions were in violation of the Americans
with Disabilities Act of 1990, as amended
STANDARD OF REVIEW
challenge to subject matter jurisdiction is raised under Rule
12(b)(1), “the burden of proving subject matter
jurisdiction is on the plaintiff.” Richmond,
Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d
765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982)). “In determining
whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue,
and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Id. “The court must grant the motion
‘only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law.'” Little v. Stock Bldg. Supply,
LLC, Case No. 4:10-cv-129, 2011 WL 5146179, at *3 (E.D.
N.C. Sept. 2, 2011) (quoting Richmond, 945 F.2d at
768). Generally speaking, allegations of Eleventh Amendment
immunity, like those raised by DMV and the individual
defendants, are treated as challenges to subject matter
jurisdiction. See, e.g., Edelman v. Jordan,
415 U.S. 651, 677-78 (1974).
survive a Rule 12(b)(6) motion to dismiss, 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)). “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.” Iqbal, 556
U.S. at 678. In determining facial plausibility, the court
must accept all factual allegations in the complaint as true.
Id. The Complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the
speculative level . . . .” Twombly, 550 U.S.
at 555 (internal quotation marks omitted). Therefore, the
Complaint must “allege facts sufficient to state all
the elements of [the] claim.” Bass v. E.I. Dupont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
” a pleading that merely offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
various arguments for dismissal are addressed in turn.
Dismissal pursuant to FRCP 8(a)
seek dismissal because the Complaint lacks “a short and
plain statement of the ground's for the Court's
jurisdiction . . . [and] a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Although pro se complaints are afforded liberal
construction, Defendants point out that district courts are
not “required to conjure up and decide issues never
fairly presented to them.” Beaudett v. City of
Hampton, 775 F.32d 1274, 1276 (4th Cir. 1985).
Plaintiff's Complaint is lacking, the primary fault is
the court's form complaint. Plaintiff answered every
questions posed, and thus any omission is not grounds for
dismissal, but for either a more definite statement of his
claim, see Fed.R.Civ.P. 12(e), or an amended
Lack of Subject ...