Cummings v. Mitchell et al

Filing 61

ORDER granting 52 Motion to Dismiss, dismissing with prejudice Plaintiff's Second Amended Complaint and closing this case. Signed by Chief Judge J. Randal Hall on 11/19/2020. (maa)

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*

ALICIA CUMMINGS,

*
■*

Plaintiff,

*

*

V.

CV

118-161

5
*

LAYNE MITCHELL, LEWIS GOLDEN,
and AU MEDICAL CENTER, INC.

■k
*

and its predecessors and

*

successors.

*

Defendants.

ORDER

Before the Court is Defendants Layne Mitchell
Lewis

Golden

Amended

("'Golden") ,

Joint

Motion

and AU
to

Medical

Dismiss

Center,

Plaintiff's

Complaint in lieu of answer and brief in support.
the following reasons.

is

an

Inc.'s
Second

("AUMC")
Amended

(Doc. 52. )

For

Defendants' motion is GRANTED.

I.

Plaintiff

(^^Mitchell") ,

BACKGROUND

African

American

woman

who

worked

for

Defendant AUMC for more than ten years in an "as needed" position
as a radiographer-PRN.
PRN

does

assigned

not

(2d Am.

receive benefits

anywhere,

full-time employee

and may

Compl.,
like a

receive

no

in any given week.

Doc.

49,

full-time

7,

13-14. )

A

employee,

can be

work or work more

than a

(Id.

SIf

15-16. )

Despite

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 2 of 13

Plaintiff's attempts, she was never made a full-time employee and
therefore

never

insurance).

received

(Id.

SI 21.)

employment
She

benefits

brings suit against

Mitchell, Golden, and AUMC on four counts.

are

against

AUMC

and

(i.e.

allege:

(I)

health

Defendants

Counts I through III

race

discrimination

and

retaliation in violation of Title VII, 42 U.S.C. § 2000e at seq.,

(II) hostile work environment of denied promotions and retaliation
in violation of Title VII, 42 U.S.C. §§ 1981, 1981a and b^, and
(III) constructive termination in violation of Title VII and 42
U.S.C. § 1981.

Mitchell

and

(Id. at 17, 30, 36.)

Golden,

Count IV is against Defendants

individually,

alleging

constructive

termination under Title VII and 42 U.S.C. §§ 1981, 1983.

(Id. at

38).
Defendant Mitchell is a white male who was the Director of

the Radiology Department at AUMC and supervised Plaintiff.
8.)

(Id. SI

Defendant Golden is a white male who was Chief Technologist

of the Radiology Department at AUMC and supervised Plaintiff and
made personnel decisions regarding her.

(Id. SI 9.)

Defendant

AUMC is sued as the employer of Defendants Mitchell and Golden for
race discrimination and retaliation, hostile work environment, and
constructive termination.

(Id. at 17, 30, 36.)

^ The Court notes that 42 U.S.C. § 1981b does not exist

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 3 of 13

Plaintiff timely filed an EEOC charge on December 20, 2016
and received a right to sue letter on June 20, 2018.2
5.)

(Id. SlSl 4-

The charge with the EEOC was for a denied promotion on August

22, 2016 and "outlined race and gender discrimination, and a severe

or pervasive hostile environment, or one of harsher terms and
conditions of employment and unfair treatment, as to promotions
and benefits on account of race, gender, and retaliation, and
indicated she sought to file a Charge.

(Id. 1 4.)

Plaintiff originally filed suit in this Court against all

Defendants on September 19, 2018. (Doc. 1.)
First Amended Complaint on February 26, 2019.

She then filed her
(Doc. 15.)

This

Court thereafter found the First Amended Complaint to be a shotgun

pleading and directed Plaintiff to file a second amended complaint
that eliminated extraneous material and ensured it was clear to

which

Defendant

particular

allegations

applied.

(Doc.

39.)

2 "In order to assert a claim of racial discrimination under Title VII,

a claimant must file a complaint with the EEOC within 180 days after the
alleged discriminatory practice occurred." Stafford v. Muscogee Cnty.
Bd. of Educ., 688 F.2d 1383, 1387 (11th Cir. 1982) (citing
42 U.S.C. § 2000e-5(e)). Since the alleged conduct occurred on August
22, 2016, the filing was timely.
^ No further information was provided regarding the scope of the EEOC
charge and right to sue letter. The Court notes that "a plaintiff cannot
maintain an action for Title VII discrimination without timely filing

an EEOC charge, and, therefore, [a] complaint is limited by the scope
of the EEOC investigation which can reasonably be expected to grow out
of the charge." Caetio v. Spirit Coach, LLC, 992 F. Supp. 2d 1199, 1212
(N.D. Ala. 2014) (internal quotations and citations omitted). Defendants
have not challenged the scope of the EEOC charge as stated by Plaintiff
in her Second Amended Complaint.
Following the standard to accept
plaintiff's allegations as true at the motion to dismiss stage, the Court
will accept the EEOC charge as stated in Plaintiff's Second Amended
Complaint.

See infra note 4.

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 4 of 13

Pursuant to the Court's directions. Plaintiff filed her Second

Amended Complaint on April 8, 2020.

(Doc. 49.)

the present motion on April 21, 2020.
motion

moves

to

dismiss

on

two

Defendants filed

(Doc. 52.)

grounds.

First,

Defendants'
it

alleges

Plaintiff failed to cure the deficiencies set forth in the Court's

March 17, 2020 Order.

(Id. at 5.)

Second, it alleges Plaintiff

failed to plead facts sufficient to support her 42 U.S.C. § 1981
hostile

work

environment

Counts II, III, and IV.

and

constructive

(Id. at 11.)

discharge

claims

in

Plaintiff responded on May

5, 2020 (Doc. 53) and Defendants filed a brief in support of their

motion on May 18, 2020 (Doc. 56).

Accordingly, Defendants' motion

to dismiss has been fully briefed and is ripe for the Court's
review.

II. LEGAL STANDARD

In considering a motion to dismiss under Rule 12(b)(6), the
Court tests the legal sufficiency of the complaint.

Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by
Davis V. Scherer, 468 U.S. 183 (1984).

Pursuant to Federal Rule

of Civil Procedure 8(a)(2), a complaint must contain ''a short and

plain statement of the claim showing that the pleader is entitled
to relief" to give the defendant fair notice of both the claim and
the supporting grounds.

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555

"detailed

(2007).

Although

factual

allegations" are

not

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 5 of 13

required, Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation."

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
"To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ^state a claim to

relief that is plausible on its face.'" ^

Id. (quoting Twombly,

550 U.S. at 570).

The plaintiff must plead "factual content that

allows

to

the

defendant

court

is

draw

liable for

the

the

reasonable

misconduct

inference

alleged."

that

Id.

the

"The

plausibility standard is not akin to a ^probability requirement,'
but it asks for more than a sheer possibility that defendant has

acted

unlawfully."

"requires

more

recitation

Id.

than

of the

labels

^naked

enhancement.'"
at 557).

plaintiff's

and

elements of

Twombly, 550 U.S. at 555.
tenders

A

a

pleading

conclusions,
cause

of

and

action

obligation

a

formulaic

will not

do."

"Nor does a complaint suffice if it

assertions'

devoid

of

^further

factual

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

Furthermore, "the court may dismiss a complaint pursuant

to [Rule 12(b)(6)] when, on the basis of a dispositive issue of

law, no construction of the factual allegations will support the
cause of action."

Marshall Cnty. Bd. of Educ. v. Marshall Cnty.

'' The Court must accept all well-pleaded facts in the complaint as true and
construe all reasonable inferences therefrom in the light most favorable to the

plaintiff.

Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006).

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 6 of 13

Gas Dist., 992 F.2d 1171, 1174 (llth Cir. 1993) (citing Executive
100, Inc. V. Martin County, 922 F.2d 1536, 1539 (llth Cir. 1991)).
Pursuant to the Court's March 17, 2020 Order, Plaintiff was

given an opportunity to replead her complaint as the First Amended
Complaint was a shotgun pleading.

(Doc. 39, at 6-7.)

The Eleventh

Circuit provides that ^^a district court must sua sponte give the
plaintiff at least one chance to replead a more definite statement
of her claims before dismissing her case with prejudice."

Embree

V. Wyndham Worldwide Corp., 779 F. App'x 658, 662 (llth Cir. 2019)
(internal

citations

omitted).

A

court's

order

requiring

repleading ^^comes with an implicit 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 [the] pleading

or, depending on the circumstances, dismiss [the] case and consider
the

imposition

Shabanets,

878

of

monetary

F.3d

1291,

sanctions."
1295

quotations and citations omitted).

(llth

Vibe
Cir.

Micro,
2018)

Inc.

v.

(internal

These procedures are in place

because shotgun pleadings "exact an intolerable toll on the trial
court's docket, lead to unnecessary and unchanneled discovery, and
impose unwarranted expense on the litigants, the court and the
court's parajudicial personnel and resources."
Fla., 117 F.3d 1258, 1263 (llth Cir. 1997).

Cramer v. State of

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 7 of 13

III. DISCUSSION

Defendants'

motion

to dismiss

asserts

Plaintiff failed

to

cure the deficiencies set forth in this Court's March 17, 2020

Order (Doc. 39) and that Plaintiff failed to plead sufficient facts

to support her claims. These claims will be analyzed individually.
A.

Compliance with the Court's Order (Doc. 39)

The Court's previous Order in this case analyzed Plaintiff's
First Amended Complaint as a shotgun pleading that committed all
four ''sins" laid out by the Eleventh Circuit in violation of
Federal Rules of Civil Procedure 8(a)(2) and 10(b).

(Id. at 4.)

While analyzing the First Amended Complaint's deficiencies, the

Court

provided

illustrative

examples

of

issues

within

the

complaint and provided instructions that Plaintiff should file a
second amended complaint that eliminates extraneous material and
ensure

it

is

clear

allegations apply.

to

which

Defendant

the

particular

factual

(Id. at 4-5, 7.)

Plaintiff's Second Amended Complaint still fails to state a

cohesive legal claim and still violates Rules 8(a)(2) and 10(b).
As outlined in the Court's prior Order, shotgun pleadings come in

four types, but it only requires qualifying as one of these four
types to be considered a shotgun pleading.

The first type are

those "containing multiple counts where each

count adopts the

allegations of all preceding counts, causing each successive count
to carry all that came before . . . ." Weiland v. Palm Beach Cnty.

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 8 of 13

Sheriff^ s Off., 792 F.3d 1313, 1321 (llth Cir. 2015).

The second

type are pleadings ^^replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of action."
Id. at 1322.

The third type are those that do not separate each

cause of action or claim for relief into a separate count.

1323.

Id. at

And fourth are pleadings "asserting multiple claims against

multiple defendants without specifying which of the defendants are
responsible for which acts or omissions, or which of the defendants
the claim is brought against."

Id.

The intention of avoiding

shotgun pleadings is to ensure defendants have short and plain
statements that provide adequate notice of the claims brought

against them.

Vibe Micro, 878 F.3d at 1294-95 (citing Fed. R. Civ.

P. 8(a)(2)).

Further, it avoids the creation of an "intolerable

toll" on both the court's docket and the parties involved.

See

Cramer, 117 F.3d at 1263.

The

"sins".

Second

Amended

Complaint

continues

to

violate

these

First, Counts II, III, and IV all reference or explicitly

incorporate prior and subsequent counts.
264, 271-72.)

(See Doc. 49, SISI 237,

This violates the first "sin." Second, despite the

Court instructing Plaintiff to eliminate extraneous material from

her

complaint,

the

Second

Amended

Complaint

still

contains

conclusory, vague, and immaterial facts, violating the second
"sin."

The most blatant example of this comes from the fact that

Plaintiff re-alleged, almost verbatim, paragraphs 161 through 169

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 9 of 13

of the First Amended Complaint as paragraphs 104 through 111 in
the

Second

Amended

Complaint.

The

Court

used

the

original

paragraphs in its Order to illustrate facts that were asserted and
not obviously connected to any particular cause of action.

In the

Second Amended Complaint, Plaintiff re-worded these paragraphs

only slightly and added a heading titled "Damages" but still did
not correct the issue of having a pleading replete with vague facts

not obviously connected to any particular cause of action. Another
example comes from Plaintiff's conclusory allegations, such as
stating

"evidence

of

treatment . . . tends

suffered

similar
to

make

discrimination,

(Id. SI 256.)

By

discriminatory
it

more

likely that

harassment

including

and

unnecessary,

and

harassing
Plaintiff

retaliation."

unconnected,

and

conclusory facts, the pleading does not provide the proper notice
to defendants as required under Rules 8(a)(2) and 10(b). The Court
finds that Counts I through IV all contain excessive facts that
are unnecessary to prove the required elements of the asserted

causes of action.

By incorporating prior assertions and restating

irrelevant and conclusory facts under every count, it requires the
Court and Defendants to speculate how to properly apply the factual

allegations to each alleged count.
Corp.,

123

F.3d

1353,

1359

n.9

See Chudasama v. Mazda Motor

(11th

Cir.

1997)

(classifying

complaint as a shotgun pleading because reader must speculate as
to which factual allegations pertain to which count).

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 10 of 13

Third, the Second Amended Complaint does not separate each
cause of action or claim for relief into separate counts, violating
the third "sin."

Even though it was addressed in the prior Order,

this complaint continues to combine as many as four claims under
Count II.

(See Doc. 49, at 30) (alleging violations under Title

VII, 42 U.S.C. §§ 1981, 1981a and b).

Although the Defendants are

labeled more clearly under each count in this version of the

complaint,

claims

that

should

be

plead

separately

are

still

combined, making it difficult to decipher which facts apply to

which alleged violation.

As previously explained, this is a

"typical shotgun pleading" because the counts present more than
one discrete claim for relief.

See Bickerstaff Clay Prods. Co. v.

Harris Cnty., Ga., 89 F.Sd 1481, 1484 n.4 (11th Cir. 1996) (holding

a typical shotgun pleading contains counts that present more than
one discrete claim for relief) (internal citations omitted).

The

concern with claims that are unconnected through various counts,

like Plaintiff's, is that "it is virtually impossible to know which

allegations of fact are intended to support which claim(s) for
relief."

Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll.,

77 F.Sd 364, 366 (11th Cir. 1996).

A plaintiff should present

each claim for relief in a separate count when asserting multiple
claims for relief, as required by Rule 10(b).^

^ Rule 10(b) explains:

10

Id.

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 11 of 13

The Court is not required to analyze every ^^sin" because once

it found the other ^^sins" were explicitly violated, the Second
Amended Complaint was considered a shotgun pleading.

But the Court

notes the final "sin" is also potentially violated because the

Complaint does not specify which Defendant is responsible for which

alleged acts.

Although Plaintiff lists the relevant Defendant in

the Count heading, she continues to include factual allegations
under each count that are unattributed to the Defendant listed,

and sometimes not attributable to anyone.

(See Doc. 49, SISI 244-

49.)

"On a motion by the defendant, a district court may dismiss
a complaint for failure . . . to obey a court order or federal
rule."

Beckwith v. Bellsouth Telecomms. Inc., 146 F. App'x 368,

372 (11th Cir. 2005) (citing Fed. R. Civ. P. 41(b)).

"Dismissal

upon disregard of an order, especially where the litigant has been
forewarned, generally is not an abuse of discretion."

Sarhan v.

Miami Dade Coll., 800 F. App'x 769, 772 (11th Cir. 2020) (internal
quotations and citations omitted). But, dismissal under Rule 41(b)
is only appropriate when there is a "clear record of delay or
willful contempt and a finding that lesser sanctions would not

^^A party must state its claims . . . in numbered paragraphs,
each limited as far as practicable to a single set of
circumstances. . . . If doing so would promote clarity, each
claim founded on a separate transaction or occurrence . . .
must be stated in a separate count . . . ."
Fed. R, Civ. P. 10(b).

11

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 12 of 13

suffice."

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)

(internal quotations and citations omitted).

The Eleventh Circuit

has held that:

our case law ^'makes clear that dismissal of a complaint
with prejudice [as a shotgun pleading] is warranted
under certain circumstances."

Jackson v. Bank of Am.,

N.A., 898 F.3d 1348, 1358 (11th Cir. 2018).
One
circumstance is where . . . the pleader fails to remedy
the problems with the complaint after being given
another chance . . . to do so.

Tran v. City of Holmes Beach, 817 F. App'x 911, 915 (11th Cir.
2020).

The Court finds here that Plaintiff willfully did not obey

the March 17, 2020 Order of this Court by re-filing her Second

Amended Complaint replete with the same issues the Court pointed
out before.

required

to

When faced with a shotgun pleading, the Court is

give

the

plaintiff

a

chance

to

replead

a

more

definitive statement before dismissing the case with prejudice,
and that chance was already given.

See Embree, 779 F. App'x at

662 (citing Vibe Micro, 878 F.3d at 1296).

Lesser sanctions would

not suffice in this case because Plaintiff has replead on her own

accord (Doc. 15) and at the request of the Court (Doc. 49) and has
still failed to file a cohesive legal pleading that follows Rules

8(a)(2) and 10(b).

Based on this, the Court finds Plaintiff's

Second Amended Complaint (Doc. 49) is a ^^shotgun pleading" and
therefore shall be DISMISSED WITH PREJUDICE.

12

Case 1:18-cv-00161-JRH-BKE Document 61 Filed 11/19/20 Page 13 of 13

B.

Insufficient Facts to Support Claims

The Court finds dismissal proper due to the Second Amended
Complaint's classification as a shotgun pleading, and therefore

finds it unnecessary to analyze Defendants' second justification
for dismissal.

IV. CONCLUSION

For

the

foregoing

reasons,

IT

IS

HEREBY

ORDERED

that

Defendants' Amended Joint Motion to Dismiss (Doc. 52) is GRANTED
and this matter is DISMISSED.

The Clerk is DIRECTED to TERMINATE

all pending motions and deadlines, if any, and CLOSE this case.
ORDER ENTERED at Augusta, Georgia, this

of November,

2020.

XHIEF JUDGE

unite"^states district court
DISTRICT OF GEORGIA

13