United States District Court, D. Delaware
ELISHA L. GRESHAM, Plaintiff,
STATE OF DELAWARE STATE BENEFITS OFFICE, Defendant.
plaintiff, Elisha L. Gresham ("Gresham"), who
proceeds pro se, commenced this action on October
24, 2016. (D.I. 2.) The defendant State of Delaware State
Benefits Office, Office of Management & Budget
("SBO") moves to dismiss pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6). (D.I. 13.) Gresham opposes and moves
for leave to amend. (D.I. 16.) She also seeks injunctive
relief. (D.I. 15, 17.)
was employed by the Delaware Department of Health and Human
Social Services ("DHSS") until her employment was
terminated effective November 18, 2015. Gresham sues the SBO
for short and long term disability payments. (D.I. 2 at 2,
to her termination, Gresham was out on a medical leave and
been awarded short term disability benefits by the State of
Delaware's disability insurance carrier, The Hartford.
(Id. at 3-4.) The short term disability benefits
were discontinued on September 18, 2015, and Gresham went
through several dissatisfying appeals. (Id. at
4.) On September 13, 2016, the SBO advised Gresham that the
State Employee Benefits Committee had denied Gresham's
appeal for an extension of short term disability benefits for
the period beyond September 20, 2015. (D.I. 12 at 14.) In the
same letter, Gresham was advised of her right to appeal to
the Delaware Superior Court within thirty days of the
postmark of the decision. (Id.) The letter referred
Gresham to a web-site explaining the appeals process.
(Id.) Gresham received the letter on or about
September 16 or 17, 2016. (D.I. 2 at 5.)
alleges that the SBO knew she had no money to proceed with
the appeal and knew that her chances of succeeding were
unlikely. (Id.) Gresham spoke to the Superior
Court's Prothonotary's office on four different
occasions from September 16, 2016 through October 18, 2016,
for guidance on how to file an appeal, but she did not file
an appeal. (Id. at 4.)
alleges that she was denied disability benefits despite
medical recommendations and advice from credible medical
experts. (Id. at 6.) Gresham alleges that her
"condition is still medically diagnosed as being
permanent, " and she has been released by her physician
to attempt to perform part-time work with limitations,
accommodations, and restrictions. (Id.) Gresham
seeks disability payments from October 2015 through November
2017. (Id. at 10.)
State moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b)(6). Gresham opposes and seeks leave to amend.
STANDARD OF REVIEW
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 Davis v. Wells
Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack
contests the sufficiency of the pleadings, whereas a factual
attack contests the sufficiency of jurisdictional facts.
See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d
99, 105 (3d Cir. 2015). When considering a facial attack, the
court accepts the plaintiffs well-pleaded factual allegations
as true and draws all reasonable inferences from those
allegations in the plaintiffs favor. See In re Horizon
Healthcare Services Inc. Data Breach Litigation, 846
F.3d 625, 633 (3d Cir. 2017). When reviewing a factual
attack, the court may weigh and consider evidence outside the
pleadings. See Gould Elecs. Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000).
Gresham proceeds pro se, her pleading is liberally
construed and her 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). 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 entitled 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); BellAtl 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 dismissed, ...