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Banner v. Wesley

United States District Court, D. Delaware

March 17, 2017

TUESDAY S. BANNER, Plaintiff,
v.
DAVID WESLEY, et al., Defendants.

          Tuesday S. Banner, New Casde, Delaware, Pro Se Plaintiff.

          John H. Taylor, III, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants David Wesley, Robert Doyle, III, Genelle Fletcher, and William Wharton.

          MEMORANDUM OPINION

          STARK U.S. District Judge

         I. INTRODUCTION

         Plaintiff 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.

         II. BACKGROUND

         On 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.[1] The Second Amended Complaint alleges wrongful acts occurring from December 2, 2009 to December 31, 2014 that resulted in the termination of Plaintiffs employment.

         III. LEGAL STANDARDS

         Because 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).

         A. Rule 12(b)(1)

         Rule 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).

         B. Rule 12(b)(6)

         Evaluating 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).

         A 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, ...


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