United States District Court, D. Delaware
TUESDAY S. BANNER, Plaintiff,
DAVID WESLEY, et al., Defendants.
Tuesday S. Banner, New Casde, Delaware, Pro Se Plaintiff.
H. Taylor, III, Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware. Counsel for Defendants
David Wesley, Robert Doyle, III, Genelle Fletcher, and
U.S. District Judge
Tuesday S. Banner. ("Plaintiff) proceeds pro se
and was granted leave to proceed in forma pauperis.
She filed this action pursuant to 42 U.S.C. § 1983,
alleging retaliation for filing an anti-discrimination claim,
and then amended to allege violations of the Family Medical
Leave Act, 29 U.S.C. § 2601 et seq.
("FMLA"), the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq.
("ADA"), and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. ("Title
VII"). (D.I. 2, 6) The Court dismissed the Amended
Complaint and gave Plaintiff leave to amend the ADA, FMLA,
and 42 U.S.C. § 1983 claims. (D.I. 31, 32) Plaintiff
filed an Second Amended Complaint on March 31, 2016. (D.I.
33) The Court has jurisdiction pursuant to 28 U.S.C. §
1331. Presently before the Court are Defendants' motion
to dismiss, Plaintiffs opposition, and Defendants' reply.
(D.I. 36, 44, 45) For the reasons that follow, the Court will
grant Defendants' motion. Plaintiff will be given leave
to amend two FMLA claims raised against Fletcher.
March 10, 2016, Plaintiff was given leave to amend the ADA,
FMLA, and § 1983 claims. Plaintiffs Second Amended
Complaint appears to assert: (1) 42 U.S.C. § 1983
retaliation and substantive due process claims against
Defendants David Wesley ("Wesley"), William Wharton
("Wharton"), Robert Doyle, III ("Doyle"),
and Genelle Fletcher ("Fletcher"); (2) FMLA
retaliation claims against Doyle and Fletcher; and (3) ADA
claims against Doyle and Fletcher. The Second Amended Complaint
alleges wrongful acts occurring from December 2, 2009 to
December 31, 2014 that resulted in the termination of
Plaintiff proceeds pro se, her pleading is liberally
construed and her Second Amended Complaint, "however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks omitted). Defendant moves for dismissal pursuant to
Rule 12(b)(1) and 12(b)(6).
12(b)(1) of the Federal Rules of Civil Procedure permits the
dismissal of an action for "lack of subject matter
jurisdiction." A Rule 12(b)(1) motion may be treated as
either a facial or factual challenge to the court's
subject matter jurisdiction. See Constitution Party of
Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014). In
reviewing a facial attack, "the court must only consider
the' allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff." Id. at 358
(quoting In re Sobering Plough Corp. v. Intron, 678
F.3d 235, 243 (3d Cir. 2012)). In reviewing a factual attack,
the court may consider evidence outside the pleadings.
Mortensen v. FirstFed. Sav. and Loan Ass'n, 549
F.2d 884, 891 (3d Cir. 1977).
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) requires the Court to accept as true all material
allegations of the complaint. See Spruill v. Gillis,
372 F.3d 218, 223 (3d Cir. 2004). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entided to offer evidence to support the
claims." In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal
quotation marks omitted). Thus, the Court may grant such a
motion to dismiss only if, after "accepting all
well-pleaded allegations in the complaint as true, and
viewing them in the light most favorable to plaintiff,
plaintiff is not entitled to relief." Maio v. Aetna,
Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal
quotation marks omitted).
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal,556 U.S. 662
(2009); Bell Ad Corp. v. Twombly,550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See Johnson v. City
of Shelby, U.S., 135 S.Ct. 346, 347 (2014). A complaint
may not be dismissed, ...