Roque v. AT&T's Inc. et al

Filing 22

ORDER AND REASONS the Court GRANTS defendants' motion 17 to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.. Signed by Chief Judge Sarah S. Vance on 7/23/13.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUSTO E. ROQUE, JR.

CIVIL ACTION

VERSUS

NO: 13-434

AT&T'S INC., ET AL.

SECTION: "R"(3)

ORDER AND REASONS
Before the Court is defendants' Motion to Dismiss Pursuant
to Rule 12(b).1 For the following reasons, the Court GRANTS
defendants' motion to dismiss under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.2
I. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to "state a claim to relief that is

1

2

R. Doc. 17.

Because the Court determines that this suit should be
dismissed pursuant to Rule 12(b)(6) for failure to state a claim,
the Court need not reach defendants' arguments for dismissal
under Rule 12(b)(2) for lack of personal jurisdiction or under
Rule 12(b)(5) for insufficiency of service of process. See Bova
v. Pipefitters & Plumbers Local 60, AFL-CIO, 554 F.2d 226, 227-28
& n.7 (5th Cir. 1977) (concluding that, because plaintiff failed
to state a claim on which relief could be granted, it was
"unnecessary to decide whether several of the defendants were
properly subjected to the personal jurisdiction of the district
court"); Harris v. Holder, 885 F. Supp. 2d 390, 396 n.4 (D.D.C.
2012) (declining to address defendants' motions to dismiss under
Rules 12(b)(2), 12(b)(3), 12(b)(4), and 12(b)(5) because the
complaint failed to state a claim on upon which relief could be
granted).

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. A court must accept all well-pleaded facts as true
and draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009).
But the Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a
“sheer possibility” that plaintiff's claim is true. Id. It need
not contain detailed factual allegations, but it must go beyond
labels, legal conclusions, or formulaic recitations of the
elements of a cause of action. Id. In other words, the face of
the complaint must contain enough factual matter to raise a
reasonable expectation that discovery will reveal evidence of
each element of the plaintiff's claim. Lormand, 565 F.3d at 257.
If there are insufficient factual allegations to raise a right to
relief above a speculative level, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,
the claim must be dismissed. Twombly, 550 U.S. at 555.
Courts construe briefs submitted by pro se litigants
liberally and “apply less stringent standards to parties
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proceeding pro se than to parties represented by counsel.” Grant
v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam). But a
court will not "invent, out of whole cloth, novel arguments on
behalf of a pro se plaintiff in the absence of meaningful, albeit
imperfect, briefing.” Jones v. Alfred, 353 F. App'x 949, 951–52
(5th Cir. 2009).
II. DISCUSSION
The basis of this suit is not entirely clear from
plaintiff's filings. It appears, based on the complaint and
attached exhibit, that the alleged harm occurred when plaintiff's
appeal before the Louisiana Department of Children and Family
Services was dismissed.3 The appeal was to be held by telephone
conference, but plaintiff did not participate because of
connection problems with the teleconferencing service.4 Because
his appeal was dismissed, plaintiff allegedly suffered a loss of
program benefits, emotional distress, and physical injuries.5
In his complaint, plaintiff alludes to 47 U.S.C. § 225 (part
of Title IV of the Americans With Disabilities Act) and the Civil
Rights Act of 1991, apparently contending that defendants

3

See, e.g., R. Doc. 1 at 4; R. Doc. 1-1 at 5 (ALJ order
terminating plaintiff's case before the Department because
plaintiff "failed to appear for the Fair Hearing").
4

R. Doc. 1 at 3-4.

5

R. Doc. 1 at 7-8.
3

violated both statutes.6 Title IV of the ADA requires common
carriers to follow federal regulations that are designed to
ensure that individuals who are "deaf, hard of hearing, deafblind, or who ha[ve] a speech disability" have the ability to
"engage in communication by wire or radio . . . in a manner that
is functionally equivalent to the ability" of a non-disabled
person to engage in such communication. 47 U.S.C. § 225. The
Civil Rights Act of 1991 is aimed specifically at preventing
employment discrimination and more generally at ensuring the
effectiveness of federal civil rights protections. See Civil
Rights Act of 1991, Pub. L. No. 102-166, § 2, 105 Stat. 1071,
1071 (1991).
Plaintiff has failed to state a claim upon which relief can
be granted. The complaint contains no facts showing that
defendants violated either the ADA or the Civil Rights Act. Cf.
Iqbal, 556 U.S. at 678 (to survive motion to dismiss, complaint
must contain "factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged”). Plaintiff does not allege that he is
disabled, that he is a member of a protected class within the
meaning of the federal civil rights laws, that his civil rights
were violated, or that he and defendant had an employment
relationship. These omissions are fatal to plaintiff's claims.

6

See R. Doc. 1 at 2.
4

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)
(complaint in employment discrimination action must give
defendant "fair notice of the basis for [plaintiff's] claims");
Mora v. Univ. of Tex. Sw. Med. Ctr., 469 F. App'x 295, 297 (5th
Cir. 2012) (plaintiff suing under the ADA must, at a minimum,
allege that the plaintiff is disabled within the meaning of that
statute). Indeed, plaintiff has failed to explain how defendant
is responsible for the harm he allegedly suffered. Some of the
injuries alleged in the complaint have no evident connection to
the failure of the teleconferencing service, much less to any act
or omission on the part of defendant. Accordingly, plaintiff's
suit must be dismissed.
III. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is
GRANTED.

23rd

New Orleans, Louisiana, this __ day of July, 2013.
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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