Morrison v. Brennan et al

Filing 86

ORDER: "Defendant's Motion to Dismiss" (Doc. 85) is hereby granted. This case is dismissed with prejudice. The Clerk is directed to terminate any pending motions and deadlines, and thereafter close this case. See Order for details. Signed by Judge Thomas P. Barber on 5/21/2020. (ANL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS E. MORRISON,
Plaintiff,
v.

Case No. 8:17-cv-2850-T-60AEP

MEGAN J. BRENNAN,
Postmaster General,
Defendant.
________________________________/
ORDER GRANTING “DEFENDANT’S MOTION TO DISMISS”
This matter is before the Court on “Defendant’s Motion to Dismiss,” filed on
March 27, 2020. (Doc. 85). Plaintiff did not file a response in opposition, and the time
to respond has expired. After reviewing the motion, court file, and the record, the
Court finds as follows:
Background
Plaintiff Thomas E. Morrison, an employee of the United States Postal Service,
filed his initial pro se complaint on November 27, 2017. (Doc. 1). Judge Kovachevich
granted Plaintiff’s “Motion to Amend Complaint.” (Docs. 38; 42). In her Order, Judge
Kovachevich reminded Plaintiff to plead a “short and plain statement of [his] claim”
through “simple, concise, and direct allegations,” in accordance with Federal Rule of
Civil Procedure 8(a)(2) and (d)(1). Judge Kovachevich also provided Plaintiff with
guidance on where to find resources for pro se litigants.

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On February 26, 2019, Plaintiff filed his first amended complaint. (Doc. 46).
This Court dismissed this complaint on November 5, 2019, and it directed Plaintiff to
file a second amended complaint to cure several identified pleading deficiencies. (Doc.
77). Plaintiff filed his second amended complaint on March 18, 2020. (Doc. 83). On
March 27, 2020, Defendant Megan J. Brennan, Postmaster General, filed a motion to
dismiss, which is currently pending before this Court. (Doc. 85).
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short
and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R.
Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does
require “more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). In order to survive a motion to dismiss, factual allegations must be sufficient
“to state a claim to relief that is plausible on its face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.
Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court
“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in
the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal
sufficiency, and is not a procedure for resolving factual questions or addressing the
merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. 2009) (Lazzara, J.).
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As Plaintiff in this case is proceeding pro se, the Court more liberally construes
the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018). However, a pro
se plaintiff must still conform with procedural rules and the Court does not have
“license to act as de facto counsel” on behalf of a pro se plaintiff. United States v.
Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019).
A district court must generally permit a plaintiff at least one opportunity to
amend a complaint’s deficiencies before dismissing the complaint with prejudice. Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). “Implicit in such a
repleading order is the notion that if the plaintiff fails to comply with the court’s order
– by filing a repleader with the same deficiency – the court should strike his pleading
or, depending on the circumstances, dismiss his case and consider the imposition of
monetary sanctions.” Jackson v. Bank of America, N.A., 898 F.3d 1348, 1358 (11th
Cir. 2018) (internal quotations and citation omitted).
Analysis
In his second amended complaint, Plaintiff appears to bring claims for disability
discrimination, retaliation, and harassment for incidents that occurred between July
29, 2015, and the present.1 (Doc. 83). Defendant argues that Plaintiff has failed to
address the deficiencies previously identified by this Court in its prior Order – namely,
he has failed to sufficiently allege the exhaustion of administrative remedies and to
state a claim upon which relief may be granted. The Court agrees.

In his initial complaint and first amended complaint, Plaintiff alleged that the events occurred
between June 1, 2015, and July 26, 2016. (Docs. 1; 46). The dates alleged in the second amended
complaint differ – Plaintiff alleges that the events occurred between July 29, 2015, and the present.
(Doc. 83). Some of these dates clearly follow the initiation of this lawsuit on November 27, 2017.
1

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The Court previously dismissed Plaintiff’s first amended complaint because,
among other things, he (1) did not sufficiently allege that he had exhausted his
administrative remedies, and (2) failed to state a claim for relief for disability
discrimination, retaliation, or harassment. (Doc. 77).
In his second amended complaint, with regard to the exhaustion of
administrative remedies, Plaintiff has merely indicated that the date he filed a charge
with the Equal Employment Opportunity Commission (“EEOC”) or an Equal
Employment Opportunity (“EEO”) counselor regarding the alleged discriminatory
conduct was October 8, 2016.2 However, Plaintiff has again failed allege – either
specifically or generally – that he has satisfied the conditions precedent to bringing to
this suit.
Additionally, Plaintiff’s second amended complaint still lacks sufficient facts
that would allow the Court to draw a reasonable inference that Defendant engaged in
any discriminatory conduct against Plaintiff. The allegations are vague and
conclusory. Looking at his disability discrimination claim, Plaintiff only refers to a
“mental disability” without identifying the disability, and he does not allege any
connection between his disability and any discriminatory conduct. He also does not
allege that he actually requested a reasonable accommodation when asked to recertify
his previous accommodation. Considering his retaliation claim, Plaintiff describes
being subjected to multiple investigatory interviews, but he does not describe the
nature of the interviews at all. He also does not identify what, if any, statutorily

The Court notes that in the first amended complaint, Plaintiff indicated that he filed a charge with the
EEOC on September 1, 2016. (Doc. 46 at 5).

2

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protected activity he engaged in, and he does not allege any causal connection between
the statutorily protected activity and the retaliation. Finally, examining his
harassment claim, Plaintiff fails to allege any specific actions or conduct to support his
claim. He also does not allege that the harassment was based on his disability, or that
the harassment was severe and pervasive.
Because Plaintiff has had an opportunity to cure these pleading deficiencies but
failed to do so, the second amended complaint is dismissed with prejudice. See
Jackson, 898 F.3d at 1358; Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991),
overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542
(11th Cir. 2002).
It is therefore
ORDERED, ADJUDGED, and DECREED:
1. “Defendant’s Motion to Dismiss” (Doc. 85) is hereby GRANTED.
2. This case is DISMISSED WITH PREJUDICE.
3. The Clerk is directed to terminate any pending motions and deadlines, and
thereafter close this case.
DONE and ORDERED in Chambers, in Tampa, Florida this 21st day of May,
2020. 

TOM BARBER
UNITED STATES DISTRICT JUDGE

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