Pastoriza v. Keystone Steel & Wire et al
Filing
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OPINION & ORDER entered by Judge Joe Billy McDade on 12/10/2015. Defendants' Joint Motion To Dismiss Plaintiff's Pro Se Civil Rights Amended Complaint 18 is GRANTED. CASE TERMINATED. IT IS SO ORDERED. See full written Opinion & Order. (JS, ilcd)
E-FILED
Thursday, 10 December, 2015 02:27:05 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
COREY RAMON PASTORIZA,
Plaintiff,
v.
KEYSTONE STEEL & WIRE, et. al.,
Defendants.
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Case No. 15-cv-1174
OPINION & ORDER
This matter is before the Court upon the Joint Motion To Dismiss Plaintiff’s
Pro Se Civil Rights Amended Complaint (Doc. 18) brought by the Defendants. The
plaintiff in this civil action is Corey Ramon Pastoriza (“Plaintiff”). The defendants
are Keystone Consolidated Industries, Inc. (“Keystone”), Ken Notaro (“Notaro”), Jeff
Klokkenga (“Klokkenga”), Tim Heaton (“Heaton”), and “Supervisor Maxwell”
(“Maxwell”) (collectively “Defendants”). The motion is fully briefed and ready for
disposition. For the reasons stated below, the motion is GRANTED.
BACKGROUND
I.
Procedural History
Plaintiff filed this employment discrimination suit against his former
employer and several individual supervisors on April 30, 2015. On July 31, 2015,
Defendants moved the Court to require the Plaintiff to provide a more definite
statement of the claims he sought to bring against them pursuant to Federal Rule of
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Civil Procedure 12(e). That motion was granted and Plaintiff filed an Amended
Complaint (Doc. 16) on September 28, 2015. Defendants filed the motion sub judice
on October 13, 2015. Thereafter, Plaintiff filed a response brief that added
significant factual detail not contained in the Amended Complaint. (See Doc. 22).1
II.
Factual Allegations
Plaintiff claims to have suffered several forms of discrimination while
employed by Keystone in Bartonville, Illinois. Plaintiff claims Keystone treated
employees in a special program for felons re-entering society better than him and
other employees not affiliated with the program. He alleges that these re-entry
employees made sexual gestures, called him names and generally mistreated him,
all while Keystone did nothing despite having knowledge of the mistreatment. He
states he was sexually harassed and defamed by ten or more Keystone employees,
including individual Defendants Norton, Heaton and Maxwell. He alleges his
supervisors created false reports of his failure to adhere to the standards of his
employment in a concerted effort to wrongfully discharge him. He seems to argue on
Normally, the Court would confine its assessment of the factual allegations
supporting a plaintiff’s claims to only those allegations contained within the
operative pleading. However, the Plaintiff here, a pro se litigant, has supplemented
the factual allegations contained in the Amended Complaint with a narration of
events contained in his responsive brief to the motion to dismiss. Seventh Circuit
precedent is to allow the facts alleged by a pro se plaintiff in a brief in opposition to
a motion to dismiss to be “considered when evaluating the sufficiency of a complaint
so long as they are consistent [with] the allegations in the complaint.” Smith v.
Dart, 803 F.3d 304, 311 (7th Cir. 2015) (citations omitted). Therefore, the Court will
briefly recount the additional facts contained in the “Plaintiff's Responsive Motion
To The Defendants’ Affirmative Defenses To Dismiss The Plaintiff's Complaint”
(Doc. 22).
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the one hand he was wrongfully denied overtime hours yet on the other hand
complains that he was assigned overtime hours. Plaintiff complains further that
Keystone withheld personal contact information of its employees from him. The
specific causes of action brought against Defendants are:
1. Age discrimination in violation of 29 U.S.C. § 621 et. al.;
2. Race, color, sex discrimination, sexual harassment/hostile work
environment and retaliation in violation of 42 U.S.C. § 2000(e) et. al.;
3. Concerted activity, which in reality is nothing more than an attempt to
appeal the NLRB’s decision to not pursue an unfair labor practice charge
against Keystone; and
4. Illinois common law claims of interference with contractual relations,
defamation and intentional emotional distress.
In his responsive brief to the motion to dismiss, Plaintiff alleges he began
working for Keystone in October 2012. He continues to allege that the re-entry hires
were treated better than he and the other non-re-entry hires. (Doc. 22 at 3). He says
the re-entry hires were a “racially-based group of federal ex-offenders”. He never
states what race these employees were, his own race, or how race accounted for a
difference in treatment. At some point he apparently joined with other non-re-entry
hires to complain about the re-entry hires receiving more overtime hours than
them. He complains that three re-entry hires in particular received more overtime
than him. Plaintiff identifies these workers by numbers in his pleadings. He
provides no description of their race, color or age beyond the fact that they were
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younger than him. As a result of his efforts, Plaintiff received more overtime but it
was “forced overtime”. He does not explain the significance of the term “forced”.
Apparently his increased overtime led to a decrease in the overtime of the reentry hires and they began to harass Plaintiff while his supervisors, Maxwell and
Heaton, did nothing. In “weeks 43 through 52 of the year 2012 Keystone employees,
including the re-entry hires, the Union representatives, his supervisors and others,
called Plaintiff a “snitching b…”, told him to perform sex acts, and announced their
dissatisfaction of him by stating “I don’t like weak ass homosexual[] acting n…”.
(Doc. 22 at 4). These employees allegedly also “played with their private parts” and
blew kisses at Plaintiff. One re-entry hire somehow forced Plaintiff to work on more
challenging equipment. Plaintiff alleges Maxwell and Heaton treated another reentry hire better than Plaintiff because they shared “sexual interactions” with him.
Plaintiff missed a day of work on January 5, 2013. He alleges that he made
clear to his hiring officials before he was hired in 2012 that he was going to have to
miss that particular day because of a previously scheduled business meeting. He
never attended that meeting but went to the emergency room with an ailment. On
January 8, 2013 Plaintiff attended a meeting in which Klokkenga disciplined him.
Apparently, Klokkenga and Plaintiff’s individual supervisors rejected Plaintiff’s
assertion that he was sick and refused to give him a chance to produce a doctor’s
note. Keystone disciplined Plaintiff by having his probationary period of
employment extended. Plaintiff says it was implied to him that he should set an
example for the younger employees. After leaving the meeting, supervisor Heaton,
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and Plaintiff walked back to their work area. Heaton asked Plaintiff questions
about his age during the walk. The next day Heaton gave Plaintiff a back dated
progress report despite having already received such a report on the last day of
December.
The next day, January 10, 2013, Plaintiff was terminated. The reason given
to him was that he threatened Heaton earlier. Plaintiff contacted the NLRB and
filed a charge against Keystone. That charge was ultimately dismissed and
unsuccessfully appealed. Thereafter, Plaintiff filed a complaint with the EEOC, and
the EEOC declined to prosecute.
LEGAL STANDARDS
In ruling on a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), “the court must treat all well-pleaded allegations as true and draw all
inferences in favor of the non-moving party.” In re marchFIRST Inc., 589 F.3d 901,
904 (7th Cir. 2009). The pleading must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To
survive a motion to dismiss, the challenged pleading must contain sufficient detail
to give notice of the claim, and the allegations must “plausibly suggest that the
[non-movant] has a right to relief, raising that possibility above a ‘speculative
level.’” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plausibility
standard requires enough facts “to present a story that holds together,” but does not
require a determination of probability. Swanson v. Citibank, N.A., 614 F.3d 400,
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404 (7th Cir. 2010). Though detailed factual allegations are not needed, a “formulaic
recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545.
Lastly, when a plaintiff pleads facts demonstrating that he has no claim, dismissal
of the complaint is proper. McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir.
2006).
DISCUSSION
I.
ADEA and Title VII Claims against Individual Defendants
Defendants first contend that the individual Defendants cannot be liable for
violations of the ADEA and Title VII. Defendants are correct. In Williams v.
Banning, the Seventh Circuit—whose pronouncements of law this court must
follow—unambiguously held that individual supervisors in their individual
capacities, do not fall within Title VII’s definition of “employer” and thus no set of
facts can be pled that will allow a factfinder to find the individual Defendants liable
for violations of Title VII. 72 F.3d 552, 555 (7th Cir. 1995). The Seventh Circuit has
also similarly foreclosed individual liability for supervisors alleged to have violated
the ADEA. Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37, 260 F.3d 602, 610 n. 2
(7th Cir. 2001). Several district courts have followed Horowitz to the same
conclusion. E.g., Cheng v. Benson, 358 F. Supp. 2d 696, 699-700 (N.D. Ill. 2005)
(finding a former employee’s supervisor not liable under the ADEA in her individual
capacity for allegedly discriminating against the former employee because of his age
and collecting similar cases).
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Plaintiff attempts to argue that the principal/agent relationship allows for
the individual Defendants to be liable for the alleged violations of Title VII and the
ADEA. Plaintiff misunderstands this relationship and its relation to Title VII and
ADEA litigation. While an agent’s actions that violate these statutes can and will
render the employer liable when all the necessary conditions are met, the
employer’s violations of the statutes do not reciprocally render the individual
supervising employees who committed the acts liable. This is so because only
“employers” are liable under these statutes and employers are those entities or
individuals who actually employ the employees. 42 U.S.C. § 2000e(b); 29 U.S.C.A. §
630(b). Here, Plaintiff alleges he was an employee of Keystone, not of any of the
individual Defendants and therefore, his Title VII and ADEA claims against the
individual Defendants cannot proceed.
II.
Title VII Race, Color and Sexual Discrimination Claims against
Keystone
The Title VII claims against Keystone, the employing entity, are cognizable
because Keystone fits into the Title VII definition of an “employer.” However, the
claims are woefully insufficient to even raise an inference that Keystone engaged in
racial, color or sexual discrimination against Plaintiff. A complaint must contain
sufficient detail to give notice of the claim, and the allegations must “plausibly
suggest that the [non-movant] has a right to relief, raising that possibility above a
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‘speculative level.’” Concentra Health Servs., Inc., 496 F.3d at 776 (quoting
Twombly, 550 U.S. at 555).
There is no need to engage in a long, drawn out analysis of Plaintiff’s claims.
There are simply no allegations that touch upon the race, color and sex of the
Plaintiff, the re-entry employees or the individual supervisors. There are no
allegations that anyone at Keystone ever even took notice of the Plaintiff’s color,
race or sex. The only inference that can be established from the Amended
Complaint and the response brief is that Plaintiff was treated differently from
employees in Keystone’s re-entry program but the Plaintiff has not pled any factual
details concerning Keystone’s treatment of those employees vis-à-vis himself in
regard to race, color or sex. He even concedes he was of the same race and color as
the majority of re-entry employees. (Doc. 22 at 8). In short, Plaintiff has not pled
anything that remotely links his treatment while employed at Keystone or his
termination to his color, race or sex and so these claims fail as a matter of law.
III.
Age Discrimination
To plead a claim of age discrimination, a plaintiff must allege facts that he is
protected by the ADEA and he suffered a materially adverse change in terms or
conditions of his employment because of his age. Although he failed to include any
facts in the Amended Complaint supporting an ADEA violation occurred, in his
response brief Plaintiff claims he was over forty years of age when the alleged
discrimination occurred and that he was denied overtime hours because he was
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older than the re-entry hires. (Doc. 22 at 7). However, he also claims he was forced
to work overtime. (Doc. 22 at 7). His allegations make no sense. The Court is at loss
to comprehend how one can, on the one hand, complain that one was being denied
overtime while simultaneously complaining on the other hand that he was also
forced to work overtime.
Plaintiff also mentioned (in his rendition of facts, not in his argument
opposing dismissal) that it was “implied” to him that he should set an example for
the other workers because he was the oldest while he was disciplined for taking a
purportedly unauthorized day off. While this implication could serve as
circumstantial evidence of age discrimination, Plaintiff does not complain that the
discipline for missing work was the adverse employment action he suffered as a
result of his age. Instead, he alleges that the discrimination he was subjected to on
account of his age was the denial of overtime while being forced to work overtime.
(Doc. 22 at 7). In any event, nowhere in his submissions to the Court does Plaintiff
allege that younger employees took days off and faced no employment consequences
while he did suffer an adverse employment action for his absence. Therefore, the
Court finds that Plaintiff has failed to plead a viable claim of age discrimination
under the ADEA.
IV.
Sexual Harassment
Plaintiff alleges that he also suffered from sexual harassment. The Court
interprets his claim to be a hostile work environment claim proscribed by Title VII.
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He pleads that employees at Keystone made unwanted sexual gestures and
statements towards him over the course of several weeks and that Keystone
supervisors took no action to stop the harassment. Specifically, Plaintiff alleges that
in “weeks 43 through 52 of the year 2012 Keystone employees, including the reentry hires, the Union representatives, his supervisors and others, called Plaintiff a
“snitching b…”, told him to perform a sex act, and announced their dissatisfaction of
him by stating “I don’t like weak ass homosexual[] acting n…”. (Doc. 22 at 4). These
employees allegedly also “played with their private parts” and blew kisses at
Plaintiff. He also claims the harassment was so bad that he would often cry and
alienate himself from others at work.
A Title VII hostile work environment claim requires a plaintiff to allege the
work environment was subjectively and objectively offensive, the plaintiff’s gender
was the cause of the harassment, the conduct was severe or pervasive, and there is
a basis for employer liability. See Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir.
2014). If true, the Plaintiff’s allegations suffice to make it plausible he was
subjected to severe and objectively offensive conduct. However, in this Court’s
opinion, Plaintiff has failed to allege that his gender was the cause of the
harassment. This may seem like a fine line to draw given the nature of the alleged
conduct, but Title VII prohibits harassment on the basis of sex (and other prohibited
classifications), it does not provide an honor code of workplace etiquette and civility.
Plaintiff clearly alleges that he was subjected to harassment as a consequence of
complaining about his treatment vis-à-vis the re-entry hires; not because he was a
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man, or of any particular sexual orientation.2 In short, Plaintiff’s submissions to the
Court contain factual allegations that do not allow the Court to conclude it is
plausible Plaintiff was harassed because of his gender. Therefore, the claim must be
dismissed.
V.
Retaliation
“Pleading a retaliation claim under Title VII requires the plaintiff to allege
that she engaged in statutorily protected activity and was subjected to an adverse
employment action as a result.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 828
(7th Cir. 2014) quoting Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1029 (7th
Cir. 2013). The protected activity refers to activity protected by Title VII such as
reporting instances of discrimination, not unrelated statutes or other laws. See 42
U.S.C. § 2000e-3(a).
Plaintiff claims he was retaliated against because 1) he was not an “REPH”,
which the Court takes to mean was a re-entry employee, 2) he organized with coworkers, 3) he consulted with his union, and 4) he complained about sexual
harassment. (Doc. 22 at 9). Of those four categories, only the fourth would be
actionable as a Title VII retaliation claim. He goes on to allege that the retaliation
he suffered was Keystone’s failure to give him overtime, allowing the re-entry
employees to harass him because he discussed Keystone’s unsafe labor practices,
forcing him to work excessive overtime, and finally “falsif[ying] progress reports to
Incidentally, this Court’s review of current case law reveals that sexual
orientation is not a protected class under Title VII anyway. See Hamner v. St.
Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 706-07 (7th Cir. 2000).
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cover-up extending his probation and their wrongful termination plot.” (Doc. 22 at
9-10). Because he is a pro se litigant, the Court construes the Plaintiff’s allegations
liberally. See Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). A liberal reading of
the Amended Complaint, supplemented with the narration of facts in the response
brief, supplies the Court with a scenario in which Keystone allegedly extended
Plaintiff’s probation and then terminated him due to his complaints of sexual
harassment as well as the other non-Title VII related reasons.
Defendants cite University of Texas Southwest Medical Center v. Nassar, 133
S. Ct. 2517 (U.S. 2013) for the proposition that the Plaintiff’s retaliation claim must
fail because in that case the Supreme Court announced that Title VII retaliation
claims require proof that the desire to retaliate was the but-for cause of the
challenged employment action. (Doc. 18 at 9-10). Obviously, Plaintiff alleges he was
retaliated against for a host of reasons, only one of which relates to Title VII
protected activity.
Although not cited by the Defendants, the Court has researched a few
opinions in which courts have applied the Nassar holding to retaliation pleading
standards. For example, in Montgomery v. Board of Trustees of the University of
Alabama, a district court found that Nassar had the effect of requiring a plaintiff
alleging a claim of retaliation under Title VII to make it perfectly clear in his
pleading that there are no proscribed motivations other than an intent to retaliate
for engaging in protected activity under Title VII. No. 2:12-CV-2148-WMA, 2015
WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015). See also Conner v. Ass’n of Flight
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Attendants-CWA, No. CIV.A. 13-2464, 2014 WL 6973298, at *3 (E.D. Pa. Dec. 10,
2014) (a “complaint must demonstrate on its face that it is plausible that [the
plaintiff] will be able to prove that ‘but for’ [defendant]’s retaliatory motive, [the
plaintiff] would not have been terminated.”), Lance v. Betty Shabazz Int'l Charter
Sch., No. 12 CV 4116, 2014 WL 340092, at *8 (N.D. Ill. Jan. 29, 2014) (to survive a
motion to dismiss, plaintiff must advance a well-pled allegation that the defendant
would not have fired him “in the absence of—that is, but for” engaging in the
protected activity).
This Court sees the logic in those courts’ reasoning, which is that if one must
prove something at trial then a plausible claim should at least contain allegations
that that thing will be proven. The problem with adopting that logic though is that,
at least in this Court’s opinion, doing so would adopt a more rigorous requirement
than the pleading standard provided in Federal Rule of Civil Procedure 8(a).
“To satisfy the notice pleading standard of Rule 8(a)(2) of the Federal Rules of
Civil Procedure, a complaint must merely provide a short and plain statement of
the claim, which is sufficient to give the defendant fair notice of what the ... claim is
and the grounds upon which it rests. Smith, 803 F.3d at 309 quoting Twombly, 550
U.S. at 555 (quotation marks omitted). A complaint need only contain enough facts
to make the claim plausible. Id. All a plaintiff need plead for a retaliation claim is
that he was engaged in statutorily protected activity and was subjected to an
adverse employment action as a result. Carlson, 758 F.3d at 828.
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While Nassar does state Title VII retaliation claims require proof that the
desire to retaliate was the but-for cause of the challenged employment action to
ultimately succeed, that holding was made in consideration of what must be proven
at a jury trial; there does not seem to be a principled reason to extend that holding
to what must be pled to survive a motion to dismiss. 133 S. Ct. at 2533. In fact,
neither Carlson, 758 F.3d 819 nor Luevano, 722 F.3d 1014—the Seventh Circuit
cases this Court cited for the pleading requirements of a viable Title VII retaliation
claim—make any mention of alleging that retaliation was the but-for cause of the
challenged employment action as a pleading requirement. Both those cases were
decided after Nassar. For these reasons, the Court declines to find that Nassar
requires a plaintiff to affirmatively plead but-for causation.
The problem with Plaintiff’s allegations is not that they are insufficient to
show he may be entitled to relief. The problem is that he has pled too much, so
much so that he establishes that he cannot prove his claim. “[I]f the plaintiff chooses
to provide additional facts, beyond the short and plain statement requirement, the
plaintiff cannot prevent the defense from suggesting that those same facts
demonstrate the plaintiff is not entitled to relief. In other words, if a plaintiff pleads
facts which show he has no claim, then he has pled himself out of court.” McCready,
453 F.3d at 888.
Complaining of sexual harassment, even when the conduct one complains of
does not actually amount to sexual harassment, can provide an adequate basis for a
viable Title VII retaliation claim. See Holland v. Jefferson Nat'l Life Ins. Co., 883
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F.2d 1307, 1314 (7th Cir. 1989) (“In order for plaintiff's expression to be protected
by section 2000e–3(a), the challenged practice need not actually violate Title VII.
Instead, it is sufficient if the plaintiff has a reasonable belief she is challenging
conduct in violation of Title VII.”). Yet Plaintiff alleges his retaliation was the result
of not only complaining about sexual harassment, but also for a host of non-Title
VII related reasons, such as complaining about overtime, complaining about the
preferential treatment of the re-entry employees, complaining about unsafe working
conditions and labor practices. A complaint’s well-pleaded factual allegations must
be taken as true and the Court will not parcel out which of the factual allegations it
will take to be true to dispose of the motion to dismiss.3
Nassar unambiguously holds that a retaliation claim requires a plaintiff to
prove that the retaliation he suffered was due to his engaging in protected activity
under Title VII. While this Court declines to find Nassar requires an affirmative
pleading of but-for causation, it cannot simply ignore that Plaintiff’s allegations,
taken as true, torpedo a finding of but-for causation. Therefore, the Court also
grants the Defendant’s motion in regard to the retaliation claim.
See Brian S. Clarke, Grossly Restricted Pleading: Twombly/Iqbal, Gross, and
Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 Utah
L. Rev. 1101, 1120 (2010) (“[The] assumption of truth rule leaves no room for a
lower court to pick and choose which pleaded facts to accept as true; it must accept
them all, regardless of the consequences to the pleader. If pleaded facts are
inconsistent with one of the claims in the complaint and, taken as true, render that
claim implausible, then that claim must be dismissed under Twombly/Iqbal,
regardless of whether the inconsistent facts support a different claim in the
complaint.”).
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VI.
Concerted Activity
Plaintiff unambiguously requests this Court to review the NRLB General
Counsel’s decision to dismiss his complaint because it “could have been [] based
upon [some other standard than] the preponderance of the evidence that was
discovered in the documentations submitted during the EEOC’s investigation.”
(Doc. 22 at 10). He contends the decision is at odds with the evidence. This claim is
frivolous. The Seventh Circuit has explained that “[o]verwhelming case authority
establishes that a decision by the General Counsel of the Labor Board not to file an
unfair labor practices complaint is not judicially reviewable.” Sparks v. N.L.R.B.,
835 F.2d 705, 706 (7th Cir. 1987). Therefore, this claim for “concerted activity” is
dismissed because it seeks relief that cannot be granted.
VII.
Remaining State Law Claims
The Court expresses no judgment as to the propriety of Plaintiff’s remaining
Illinois state law claims—tortious interference with contractual relations,
defamation, and intentional infliction of emotional distress—because the Court
declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c).
CONCLUSION
Defendants’ Joint Motion To Dismiss Plaintiff’s Pro Se Civil Rights Amended
Complaint (Doc. 18) is GRANTED. When a court dismisses a claim pursuant to a
Rule 12(b)(6) motion, the dismissal must be with prejudice because the claim is not
one upon which relief can be granted. Remijas v. Neiman Marcus Grp., LLC, No. 1416
3122, 2015 WL 4394814, at *8 (7th Cir. July 20, 2015) (“A dismissal under Rule
12(b)(6), in contrast, is a dismissal with prejudice.”); Kamelgard v. Macura, 585
F.3d 334, 339 (7th Cir. 2009). Plaintiff has already had two opportunities to plead
facts demonstrating he is entitled to the relief he seeks, a third opportunity is
unwarranted. Therefore, the Amended Complaint (Doc. 16) is dismissed with
prejudice and the Court declines to exercise its supplemental jurisdiction to
adjudicate the Illinois state law claims contained therein. CASE TERMINATED.
IT IS SO ORDERED.
Entered this 10th day of December, 2015.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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