Olekanma v. Wolfe et al

Filing 25

MEMORANDUM OPINION (c/m to Plaintiff 2/4/16 sat). Signed by Judge Deborah K. Chasanow on 2/4/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SAMUEL OLEKANMA
:
v.

:

Civil Action No. DKC 15-0984

:
JOHN S. WOLFE, et al.
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

workplace harassment action are: (1) a motion to dismiss filed
by Defendants John S. Wolfe, Casey Campbell, Allen Gang, and
Glynis Watford (ECF No. 10); and (2) a motion to dismiss filed
by

Defendant

(ECF

No.

Wexford

21).

(“Plaintiff”)

Also
motion

Health
pending
for

petition

for

removal.

briefed,

and

the

necessary.

Local

Sources

court
Rule

a

(ECF
now

is

Incorporated

Plaintiff

temporary
No.

105.6.

restraining

8).

rules,

The

no

For

Samuel

Olekanma’s
order

and

have

been

issues

hearing

the

(“Wexford”)

being

following

deemed

reasons,

Defendants’ motions to dismiss the amended complaint will be
granted.

Plaintiff’s motion will be denied as moot, and he will

have

days

21

to

file

Fed.R.Civ.P. 15(a)(2).

a

second

amended

complaint

under

I.

Background1
At all relevant times, Plaintiff has been employed by the

Maryland Department of Public Safety and Correctional Services
(“MDPSCS”) as a corrections officer at the Jessup Correctional
Institution (“JCI”).

Plaintiff alleges that Electa Awanga, a

female nurse employed by Wexford at JCI, sexually harassed and
abused him on November 29, 2014.
Plaintiff,

“[t]his

sexual

(ECF No. 4 ¶ 1).2

[h]arassment

was

According to

brought

to

the

attention of the supervisors and appointed authorities . . . but
they failed to remove [P]laintiff from the abusive condition on
time which resulted in further sexual harassment and abuse of
[P]laintiff.”

(Id.).

Plaintiff alleges that he reported the

harassment to Defendants Wolfe, Campbell, and Gang, but they
“were [] absent or on vacation at the time of the complaint
which is a violation of policy and procedure that resulted in .
. . continued sexual harassment.”
“[w]hen

Plaintiff

took

the

matter

(Id. ¶ 2).
to

.

.

.

Furthermore,

[Maryland

Equal

Employment Opportunity Coordinator Glynis Watford, she] further
harassed

[P]laintiff

by

intimidating

[him].”

(Id.

¶

4).

1

When considering a motion to dismiss for failure to state
a claim, the well-pled allegations in the complaint are accepted
as true. See Brockington v. Boykins, 637 F.3d 503, 505 (4th Cir.
2011). The facts outlined here are construed in the light most
favorable to Plaintiff, the nonmoving party.
2

The amended complaint contains a lengthy recitation of
facts surrounding the purported harassment of Plaintiff in
November 2014. (See ECF No. 4, at 6-13).
2

Plaintiff also alleges that Defendant Wexford employs Ms. Awanga
and “failed to act or do anything about [his] complaint” of
harassment.

(Id. ¶ 5).3

Plaintiff,

proceeding

MDPSCS on April 6, 2015.
court

found

the

complaint

se,

filed

(ECF No. 1).

complaint

pleading standards.
amended

pro

to

be

(ECF No. 3).
against

a

complaint

Shortly thereafter, the

insufficient

under

Plaintiff’s

Defendants

five-count

federal

On May 6, Plaintiff filed an
Wolfe,

Campbell,

Watford, and Wexford (collectively, the “Defendants”).
4).

against

amended

complaint

Gang,

(ECF No.

asserts

claims

under: 18 U.S.C. § 1346 (definition of a criminal “scheme or
artifice

to

defraud”)

(Count

I);

18

U.S.C.

§

242

(criminal

deprivation of rights under color of law) (Count II); 31 C.F.R.
§

0.208

Department

(employee
of

the

rules

of

Treasury)

conduct
(Count

for
III);4

the

United

States

18

U.S.C.

§

241

(criminal deprivation of rights by conspiracy) (Count IV); and
18 U.S.C. § 3 (criminal accessory after the fact) (Count V).
Although

Plaintiff

appears

to

assert

claims

of

sexual

harassment, he does not bring his case under Title VII of the
3

In his responses to Defendants’ motions to dismiss,
Plaintiff offers additional factual context dating back to 2005.
(See ECF Nos. 12, at 3-7; 23, at 7-11). The motions to dismiss,
however, test the sufficiency of the amended complaint, and
Plaintiff may not amend his pleading through opposition
briefing.
4

Plaintiff mistakenly pleads a violation of 31 U.S.C. §
0.208, which does not exist.
3

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et
seq.

Plaintiff seeks money damages and injunctive relief.
On June 24, before any responsive pleadings were filed,

Plaintiff moved for a temporary restraining order and petitioned
the court for a warrant of removal.

(ECF No. 8).

Defendants

Wolfe, Campbell, Gang, and Watford moved to dismiss the amended
complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a
claim (ECF No. 10), and Plaintiff responded in opposition (ECF
No.

12).

Defendant

Wexford

moved

to

dismiss

the

amended

complaint (ECF No. 21), Plaintiff responded (ECF No. 23), and
Defendant Wexford replied (ECF No. 24).5
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

“Rule 8(a)(2)

still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).

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

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
5

Plaintiff moved to dismiss Defendants’ motions to dismiss.
(ECF Nos. 12; 23).
These documents, however, appear to be
responses in opposition to Defendants’ motions to dismiss.
4

“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)); Brockington v. Boykins, 637 F.3d 503, 505-06
(4th Cir. 2011).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.
604

F.2d

844,

847

(4th

United Black Firefighters v. Hirst,
Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but

it

relief.’”
8(a)(2)).

has

not

‘show[n]

Iqbal,

556

that
U.S.

the
at

pleader

679

is

(quoting

entitled

to

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task

5

that

requires

the

reviewing

experience and common sense.”
Generally,

pro

se

court

to

draw

on

its

judicial

Id.

pleadings

are

liberally

construed

and

held to a less stringent standard than pleadings drafted by
lawyers.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner,
404 U.S. 519, 520 (1972).

Liberal construction means that the

court will read the pleadings to state a valid claim to the
extent that it is possible to do so from the facts available; it
does not mean that the court should rewrite the complaint to
include claims never presented.
1128, 1132 (10th Cir. 1999).

Barnett v. Hargett, 174 F.3d

That is, even when pro se litigants

are involved, the court cannot ignore a clear failure to allege
facts that support a viable claim.

Weller v. Dep’t of Soc.

Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No.
RDB–12–969,

2012

WL

6087491,

at

*3

(D.Md.

Dec.

4,

2012)

(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.”).
III. Analysis
Defendants argue that the amended complaint fails to state
a claim for relief and should be dismissed under Rule 12(b)(6).
According

to

Defendants,

“Plaintiff

asserts

violation[s]

of

several criminal statutes, none of which presents a cognizable
6

cause of action that entitles him to relief against” Defendants.
(ECF No. 10-1, at 2).

“[T]he statutes pled have no relation to

the claims of sexual harassment that are the foundation of [the
amended complaint] and there are no facts alleged or that can be
alleged

that

would

satisfy

these

statutes

and

regulations.”

(ECF No. 21-2, at 3).
A

complaint

statement

of

is

the

required

grounds

to

for

contain
the

a

short

court’s

and

plain

jurisdiction,

a

statement of the claim showing that Plaintiff is entitled to
relief, and a demand for the relief sought.
As

noted

above,

however,

Plaintiff

Fed.R.Civ.P. 8(a).

asserts

claims

under:

18

U.S.C. § 1346 (definition of criminal honest services fraud); 18
U.S.C. § 242 (criminal deprivation of rights under color of
law);
United

31

C.F.R.

States

§

0.208

Department

(employee
of

the

rules

of

Treasury);

conduct
18

for

U.S.C.

§

the
241

(criminal deprivation of rights by conspiracy); and 18 U.S.C. §
3 (criminal accessory after the fact).
is

relevant

harassed

by

to
Ms.

Plaintiff’s
Awanga

in

None of these statutes

allegations
November

that

2014.

he

was

See

sexually

Olekanma

v.

Washington Adventist Univ., No. RWT-11CV1713, 2012 WL 7856817,
at *1 (D.Md. Feb. 6, 2012), aff’d, 473 F.App’x 203 (4th Cir.
2012).
sections

Moreover,
of

Title

Plaintiff’s
18

of

the

reliance

United

on

Code

identified
of

the

section of the Code of Federal Regulations is misplaced.

He

7

States

the

and

lacks standing as a private citizen to prosecute a criminal
claim against Defendants under these criminal statutes and the
Treasury

Department

conduct.

regulation

concerning

employee

rules

of

See Fromal v. Lake Monticelle Owners’ Ass’n., Inc.,

No. 3:05-CV-00067, 2006 WL 167894, at *1-2 (W.D.Va. Jan. 23,
2006) (determining that 18 U.S.C. §§ 241 and 242 and 18 U.S.C. §
1341 are criminal statutes that do not provide a private right
of action), aff’d sub nom. Fromal v. Lake Monticello Owners’
Ass’n Inc., 223 F.App’x 203 (4th Cir. 2007).

Accordingly, the

amended complaint does not state a claim for relief, and the
motions to dismiss will be granted.
Even construing the amended complaint liberally, Plaintiff
cannot state a plausible claim for relief.
Plaintiff

advances

a

claim

for

To the extent that

harassment

or

hostile

work

environment under Title VII, such a claim cannot withstand Rule
12 review.

Title VII prohibits discrimination by “employers”

based on an employee’s personal characteristics such as “race,
color, religion, sex, or national origin.”

42 U.S.C. § 2000e–

2(a)(1); Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517,
2525 (2013).

Title VII, however, “do[es] not provide for causes

of action against defendants in their individual capacities.”
Jones

v.

Sternheimer,

387

F.App’x

366,

368

(4th

Cir.

2010)

(citing Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir.
1999)

(finding

that

Title

VII
8

does

not

provide

for

actions

against individual defendants for violation of its provisions));
see Wilson v. Dimario, 139 F.3d 897 (4th Cir. 1998) (unpublished
table decision) (“[T]he department or agency head is the only
proper defendant in cases alleging a violation of Title VII and
that federal employees cannot be held liable in their individual
capacities.” (emphasis in original)).
not

liable

in

violations.”
(4th

their

individual

That is, “supervisors are

capacities

for

Title

VII

Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180

Cir. 1998).

Here, Plaintiff appears to be employed by

MDPSCS and work at JCI.

As Defendants note, Plaintiff does not

name his employer as a defendant.

(ECF Nos. 10-1, at 5-6; 21-2,

at 2-3).
In addition, to the extent that Plaintiff asserts a Title
VII claim against Defendants, the court is not satisfied that it
possesses subject matter jurisdiction to consider such a claim.
Title

VII

requires

discrimination

with

that
the

a

plaintiff

U.S.

Equal

file

a

Employment

charge

of

Opportunity

Commission (“EEOC”) before suing in federal court.

Jones v.

Calvert Group, Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009).

A

Title VII plaintiff’s failure to exhaust administrative remedies
deprives a federal court of subject matter jurisdiction over
such

claims.

Id.

at

300;

see

Balas

v.

Huntington

Ingalls

Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013); In re Kirkland,
600 F.3d 310, 314 (4th Cir. 2010) (“Subject matter jurisdiction
9

cannot be forfeited or waived, and can be raised by a party, or
by the court sua sponte, at any time prior to final judgment.”).
[Title VII] specifies the actions the EEOC
must take before a private litigant may
assert a Title VII claim in federal court.
Alexander v. Gardner-Denver Co., 415 U.S.
36,
47
(1974).
[Section
2000e-5(b)]
provides that a federal discrimination claim
brought by a private party cannot be heard
by a federal district court until the EEOC
has
conducted
an
investigation
and
determined
the
validity
of
the
claim.
Further, the section requires that the EEOC
decide whether the agency will bring the
claim in federal court or whether the
complainant will be issued a right-to-sue
letter, which [] is essential to initiation
of a private Title VII suit in federal
court. 42 U.S.C. § 2000e-5(b); id. § 2000e5(f)(1); see also Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 104-05
n.12 (1979) (“[A] complainant . . . must
obtain
a
‘right-to-sue’
letter
before
proceeding in federal court.”); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 798
(1973); Hirst, 604 F.2d at 847.
Davis v. N. Carolina Dep’t of Correction, 48 F.3d 134, 137-38
(4th Cir. 1995).
se

amended

Here, even liberally construing Plaintiff’s pro

complaint

and

accepting

his

allegations

as

true,

Plaintiff has failed to demonstrate that this court possesses
jurisdiction over his Title VII harassment claim due to his
failure

to

allege

facts

administrative remedies.

demonstrating

exhaustion

of

his

The amended complaint is devoid of any

reference to an initial EEOC charge, an EEOC investigation, or a
right to sue letter.

Plaintiff alleges only that he “took the

10

matter [of his harassment] to [EEOC Coordinator Glynis Watford,
who]

further

harassed

[P]laintiff

by

intimidating

[him]”

regarding his complaints of harassment by a female nurse.
No. 4 ¶ 4).

(ECF

Until the EEOC issues a right to sue letter,

however, or until Plaintiff is entitled to one, the federal
court

is

without

jurisdiction.

Thus,

because

the

amended

complaint fails to allege that statutory prerequisites have been
met, Plaintiff has not properly invoked the court’s jurisdiction
under Title VII.

Davis, 48 F.3d at 140 (citation omitted).

Furthermore, Plaintiff’s pleading does not enable the court
to discern the nature of other potential federal claims he may
be asserting.

Responding to Defendants’ motions to dismiss,

Plaintiff asserts the amended complaint alleged violations of
the Fourth, Fifth, Sixth, and Eighth Amendments to the United
States Constitution.

(ECF Nos. 12, at 7; 23, at 10).

His

responses also raise general allegations of fraud (ECF Nos. 12,
at 3; 23, at 7), assault (ECF Nos. 12, at 4; 7, at 8), and
violations of, inter alia, 42 U.S.C. §§ 1983, 1985, and 1986
(ECF Nos. 12, at 7; 23, at 10).

However, “it is axiomatic that

the complaint may not be amended by the briefs in opposition to
a motion to dismiss.”

Mylan Labs., Inc. v. Akzo, N.V., 770

F.Supp. 1053, 1068 (D.Md. 1991) (quoting Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)); see Zachair Ltd.
v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (stating that
11

the plaintiff “is bound by the allegations contained in its
complaint and cannot, through the use of motion briefs, amend
the complaint”), aff’d, 141 F.3d 1162 (4th Cir. 1998).

Here, the

focus of the amended complaint is not at all clear, and the
court is unable to discern what other constitutional or civil
rights violations Plaintiff asserts.
Accordingly,

Defendants’

motions

to

dismiss

will

be

granted, and the court will allow Plaintiff 21 days to file a
second amended complaint.
light

of

the

Plaintiff’s
dismiss

will

forgiving

pro
be

se

Such an outcome is appropriate in
standards

status.6

granted,

embodied

Because

Plaintiff’s

in

Rule

Defendants’
motion

for

15

motions
a

and
to

temporary

restraining order and petition for warrant of removal will be
denied as moot.7

6

Should Plaintiff file a second amended complaint within 21
days, the court expects that he will include factual allegations
sufficient to establish a plausible basis for his claims.
Plaintiff must identify federal statutes or constitutional
provisions on which this civil action is predicated. As noted,
Rule 8(a) requires that a complaint contain a short and plain
statement of the grounds for the court’s jurisdiction, a
statement of the claim showing that Plaintiff is entitled to
relief, and a demand for the relief sought.
The “allegations
must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555; see also Giacomelli, 588 F.3d
at 193.
7

Even if the court were not granting the motions to
dismiss, Plaintiff has neither satisfied the standard for
preliminary injunctive relief nor persuaded the court that his
state administrative proceedings can be removed. Critically, in
his motion, Plaintiff does not request any particular temporary
12

IV.

Conclusion
For the foregoing reasons, Defendants’ motions to dismiss

will

be

denied.

granted,

and

Plaintiff’s

remaining

motion

will

be

Plaintiff will have 21 days to file a second amended

complaint.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

restraining order or identifiable injunctive relief.
In
addition, he simply presumes that records regarding his thenongoing case before the Maryland Office of Administrative
Hearings (“OAH”), case number SPMS-JCI-20-15-10688, “will be
made available to [this court] upon [n]otice and [d]emand for
[m]andatory [j]udicial [n]otice, pursuant to Rules 201 and 902
of the Federal Rules of Evidence, the Full Faith and Credit
Clause . . . , and 28 U.S.C. § 1449.”
(ECF No. 8 ¶ 4).
Plaintiff “pray[s] for removal of the above-captioned state
court proceedings” to this court.
(ECF No. 8, at 11).
Plaintiff has not, however, followed procedure for removal of
state court actions to federal court, nor has he demonstrated
that the OAH proceeding concerning his suspension without pay is
properly subject to removal.
See 28 U.S.C. §§ 1441, 1446;
Rockville Harley-Davidson v. Harley-Davidson Motor Co., 217
F.Supp.2d 673, 676 (D.Md. 2002) (“First, the court must evaluate
the functions, powers, and procedures of the state tribunal in
order to consider whether the entity functions as a court.
Second, the court must consider the respective state and federal
interests in the subject matter and in the provision of a
forum.” (citation and internal quotation marks omitted)).
13