United States District Court, D. Delaware
Ahmed A. Mohamed is the sole defendant remaining. (D.I. 13).
Presently before me is his Motion to Dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(6), all claims brought
by Plaintiff Brittany Kade against him. (D.I. 10). Those
claims are the following: (1) Count I, Intentional Infliction
of Emotional Distress; (2) Count II, Assault; (3) Count III,
Battery; and (4) Count DC, Section 1983. (D.I. 1-1). The
briefing is complete. (D.I. 11; D.I. 14; D.I. 15). I reviewed
supplemental letters relating to the § 1983 claim. (D.I.
18; D.I. 19; D.I. 20).
requires a complainant 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). Rule 12(b)(6) allows
the accused party to bring a motion to dismiss the claim for
failing to meet this standard. A Rule 12(b)(6) motion may be
granted only if, accepting the well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the complainant, a court concludes that those
allegations "could not raise a claim of entitlement to
relief." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'I Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." See Johnson v. City
of Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Mat 347. That
plausibility must be found on the face of the complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A
claim has facial plausibility when the [complainant] pleads
factual content that allows the court to draw the reasonable
inference that the [accused] is liable for the misconduct
alleged." Id. Deciding whether a claim is
plausible will be a "context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense." Id. at 679.
following allegations are highly relevant. Plaintiff Kade is
female and was a student a Delaware State University
("DSU"). (D.I. 1-1 ¶ 1). Defendant Mohamed is
male and was employed by Delaware State University as a
professor in the chemistry department. (Id. ¶
3). During the spring semester of 2014, Kade was a senior
chemistry student who also worked part-time in the chemistry
department helping set up laboratories for chemistry
professors. (Id. ¶ 6). She worked on a senior
thesis/capstone project with Mohamed, along with multiple
publications with him. (Id.¶ 1). She
worked with Mohamed for approximately two years.
(Id.). Mohamed was her primary professor and
reference. (Id. ¶ 17).
about February 10, 2014, Kade's car broke down and she
asked Mohamed if he would drive her to an autoshop for
repairs as the two of them were supposed to meet regarding a
project anyway. (Id. ¶ 8). During the drive,
Mohamed spoke to Kade "about how he missed his wife and
how he missed having sex, giving hugs, and kissing
women." (Id.). He further indicated how
"he liked how Ms. Kade looked, dressed, smelled, and
wore makeup." (Id.). Kade told Mohamed, and he
acknowledged, the inappropriateness of his comments.
(Id.). Later during the drive, Mohamed brought up
his loneliness. (Id. at 10).
arriving at the autoshop, Kade informed Mohamed that he could
leave, but he insisted on remaining until she left in her
car. (Id. at 11). When Kade stepped out of the car,
he stepped out of the car, "put his arm around her, and
patted her on the shoulder." (Id.). He further
indicated that "if she ever needed anything, even
outside school, she should let him know."
and Mohamed traveled in separate vehicles back to DSU.
(Id. ¶ 12). Kade realized that she left her
belongings in Mohamed's office, and returned to his
office to get them. (Id.). While in his office,
Mohamed asked her to sit and talk to him. (Id.).
Kade thought the conversation would be about her paper.
(Id.). Instead, Mohamed asked whether Kade had
sexual relations with a former student named Patrick who
lived with Kade and her husband while Patrick was going
through a divorce. (Id. ¶ 14). She said she did
not because she was married and that Patrick was not her
type. (Id.). He asked her what her type was.
(Id.). To diffuse the tension, she said "her
husband was tall, dark, and handsome." (Id.).
He said that he was as well and that she likes his accent.
(Id.). She asked him to stop. (Id.). He
said that he really liked Kade and liked being able to talk
to her in this fashion. (Id.). When Kade stood up to
leave this conversation, he "came around the desk and
pulled her into a two-arm hug." (Id. ¶
15). He further "turned his face as if to kiss her and
held her there." (Id.). She pushed him away.
point in time later, Kade had to ask Mohamed where the silver
nitrate was located. In response, he "bit his bottom lip
and winked at her." (Id. ¶ 18).
the injuries Kade alleges she suffered include the following:
extreme emotional distress that included being reduced to
tears on multiple occasions, humiliation in front of her
peers and classmates on multiple occasions, embarrassment by
rumors being spread on the DSU campus about her, having to
see a therapist, avoidance of the building housing the
chemistry department, and interference with her education.
(Id. ¶ 47).
Mohamed argues that under a reasonable reading of the
complaint, he is sued only in his official capacity and not
his individual capacity. (D.I. 11 at 13-14). Because he is
sued only in his official capacity, Defendant argues that all
claims must be dismissed against him pursuant to the Eleventh
Third Circuit employs a course of proceedings test to
determine whether a plaintiff in a § 1983 action may
proceed with both an official and individual capacity suit
when it is unclear what his intentions are from his
complaint." Davis v. Thomas, 2009 WL 3112318,
at *3 (D. Del. Sept. 25, 2009) (internal quotations omitted).
"Under this test, the court may examine 'the
substance of the pleadings and the course of proceedings in
order to determine whether the suit is for individual or
official liability, ' and is not limited by the presence
or absence of language identifying capacity to sue on the
face of the complaint." Id. "Factors
considered include 'the nature of the plaintiffs claims,
requests for compensatory or punitive damages, and the nature
of any defenses raised in response to the complaint,
particularly claims of qualified immunity.'"
Id. "The 'underlying inquiry remains
whether the plaintiffs intention to hold a defendant
personally liable can be ascertained fairly.'"
as to the nature of plaintiff s claims, Plaintiff is
asserting that Defendant engaged in intentional torts against
her. (Id. ¶¶ 48-52, 53-57, 58-62). This
strongly suggests that Plaintiff is suing Defendant in his
individual capacity. See Davis, 2009 WL 3112318, at
requesting punitive damages for these intentional torts and
for her § 1983 claim. (Id. ¶¶ 52, 57,
62, 95). This also strongly suggests that Plaintiff is suing
Defendant in his individual capacity. See Davis,
2009 WL 3112318, at *4.
fact that Plaintiff maintains in her answering brief that she
is suing him individually weighs in her favor. See Moore
v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001)
("[W]hile it is clearly preferable that plaintiffs
explicitly state whether a defendant is sued in his or her
'individual capacity, ' failure to do so is not fatal
if the course of proceedings otherwise indicates that the
defendant received sufficient notice." (citation
has asserted a qualified immunity defense (D.I. 11), which
suggests that he was placed on adequate notice of being sued
individually. See Id. ("Notice of personal
capacity in turn allows government defendants to avail
themselves of the qualified immunity defense.").
points to language in the complaint, in the context of a
respondeat superior claim against DSU and in the
context of Plaintiff s § 1983 claim where Plaintiff
argues that Defendant acted under color of state law by
working for DSU, which suggests that Plaintiff is suing
Defendant in his ...