Olekanma v. Wolfe et al
Filing
80
MEMORANDUM OPINION (c/m to Plaintiff 9/22/17 sat). Signed by Judge Deborah K. Chasanow on 9/22/2017. (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, Warden, Jessup
Correctional Facility, et al.
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
workplace harassment action are: (1) a motion to dismiss and, in
the
alternative,
Maryland
for
Department
(“MDPSCS”)
and
of
John
summary
Public
Wolfe,
judgment
Safety
Warden
&
of
filed
by
Defendants
Correctional
Jessup
Services
Correctional
Institute (“JCI”) (collectively “Defendants”) (ECF No. 68); (2)
a
motion
to
take
judicial
notice
filed
by
Plaintiff
Samuel
Olekanma (“Plaintiff”) (ECF No. 74); and (3) a motion for a
protective order filed by Plaintiff (ECF No. 76). The issues
have been briefed, and the court now rules, no hearing being
deemed necessary.
the
motion
to
Local Rule 105.6.
dismiss
will
be
For the following reasons,
granted,
the
motion
to
take
judicial notice will be denied, and the motion for a protective
order will be denied as moot.
I.
Background
Factual History1
A.
At
MDPSCS
all
as
Plaintiff
relevant
a
times,
corrections
alleges
that
Plaintiff
officer.
Electa
(ECF
Awanga,
has
been
No.
a
30,
nurse
employed
at
6,
employed
by
10).
by
Wexford Health Sources Incorporated (Wexford) — MDPSCS’s medical
contractor, repeatedly sexually harassed him.
(ECF No. 4 at 6-
11).
Plaintiff’s complaint is far from a model of clarity.
It
appears that the alleged harassment started at some point before
May 2014.
(ECF No. 4, at 6) (“The first time I worked with
Electa Awanga is about a year plus ago”).
1
Plaintiff alleges
Plaintiff purports to incorporate “every allegation
contained in the previous . . . complaints [and] motions[.]”
(ECF No. 30, at 9). Such a pleading convention is not allowed.
Fed.R.Civ.P. 10(c) allows a party to incorporate by reference
statements in previous pleadings, but the incorporation “must be
direct and explicit, in order to enable the responding party to
ascertain the nature and extent of the incorporation.” 5A
Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1326 (3d ed. 2004).
“This requirement of clarity
ensures fairness to the responding party, for without this
requirement
incorporations
‘may
prove
confusing
and
inconvenient.’
And the risk of such confusion and inconveince
is particularly high where, as here, a party seeks wholesale
incorporation in an amended pleading of a superseded version of
that same pleading.” Hinton v. Trans Union, LLC, 654 F.Supp.2d
440, 446 (E.D.Va. 2009) (quoting Wright & Miller, § 1326).
Defendants, however, did not object to this pleading, and this
court has sorted through the various documents to determine the
claims and the facts alleged in support.
At this stage, the
facts alleged are accepted as true and construed in the light
most favorable to Plaintiff.
2
that on the night the harassment started, he was working a shift
with Ms. Awanga and she inappropriately touched him, called him
“sweetie [and] honey,” offered to have sex with him, discussed
her sex life with him, and showed him her breasts.
10).
He
sexually
alleges
harassed
including
brushing
that
him
from
then
through
up
a
against
until
November
variety
him
(Id. at 6,
of
and
2014,
unwanted
making
she
acts
derogatory
statements about Plaintiff’s sex life and anatomy. (Id. at 611).
Plaintiff also alleges that Ms. Awanga and several other
employees at JCI were engaged in a “prostitution ring” at JCI.
(ECF
No.
30,
at
9).
Plaintiff
alleges
that
Defendants
“[c]reated an atmosphere and working condition which ma[de] it
almost impossible to work . . . without engaging in some sort of
illicit sexual relationship with either a co-worker, staff and
or a supervisory staff.”
In
his
incorporate
first
by
(Id. at 10).
amended
reference
complaint,
into
his
which
second
he
purported
amended
to
complaint,
Plaintiff asserted that he was harassed on November 29, 2014 and
reported that incident to Warden Wolfe, Assistant Warden Casey
Campbell, and Chief of Security Allen Gang but that they were
“absent or on vacation at the time of the complaint[.]”
No. 4, at 2).
supervisors
(ECF
He alleges that on that date, he also told his
about
the
harassment
3
but
that
his
supervisors
“ridiculed
and
laughed
about
it[.]”
(ECF
No.
4-1,
at
1).
Plaintiff further alleges that at that time “the supervisors and
appointed
authorities
failed
to
abusive condition on time[.]”
remove
[P]laintiff
(ECF No. 4, at 2).
from
the
On December
10, 2014, Plaintiff was transferred from JCI to another prison,
the Maryland Correctional Institution for Women (“MCIW”).
(ECF
No. 4-1, at 3).
B.
Procedural History
Plaintiff, proceeding pro se, filed a complaint in this
court against MDPSCS on April 6, 2015.
(ECF No. 1).
The court
found the complaint to be insufficient under federal pleading
standards and granted Plaintiff twenty-eight days to file an
amended complaint.
On
May
6,
(ECF No. 3).
Plaintiff
filed
an
amended
complaint
against
Wolfe, Campbell, Gang, Glynis Watford, Maryland EEO Coordinator,
and Wexford.
asserted
(ECF No. 4).
claims
under:
18
Plaintiff’s first amended complaint
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 (employee rules of conduct for the United
States Department of the Treasury) (Count III);2 18 U.S.C. § 241
(criminal deprivation of rights by conspiracy) (Count IV); and
2
Plaintiff mistakenly pleaded a violation of 31 U.S.C. §
0.208, which does not exist.
4
18 U.S.C. § 3 (criminal accessory after the fact) (Count V).
The defendants moved to dismiss the amended complaint,
(ECF
Nos. 10; 21), and the court granted those motions to dismiss
because,
as
a
private
citizen,
Plaintiff
lacked
standing
to
bring suit under the criminal statutes and Treasury regulations
that he cited in the various counts of the complaint.
25, at 7-8).
(ECF No.
Furthermore, the court found, even construing the
amended complaint liberally, Plaintiff could not state a claim
for relief under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, et seq., for sexual harassment
or retaliation because Plaintiff had not alleged that he had
exhausted his administrative remedies and because he had sued
individual employees and supervisors rather than his employer,
as defined by Title VII.
After
being
(Id. at 8-11).
granted
leave
to
amend,
second amended complaint on March 22, 2016.
Plaintiff
filed
(ECF No. 30).
a
The
second amended complaint incorporated all allegations contained
in his prior pleadings, named twenty-eight additional individual
defendants
and
whistleblower
asserted
protections
claims
of
under
Sarbanes-Oxley
Title
VII;
the
Act
(“SOX”),
18
U.S.C. § 1514A, and the Dodd-Frank Act (“Dodd-Frank”), 15 U.S.C.
§ 78u–6(h)(1)(A); and 18 U.S.C. § 242.3
Defendants
3
moved
to
dismiss
the
(Id. at 6-7, 10-12).
complaint
pursuant
Plaintiff improperly labeled this claim “Fraud.”
5
to
Fed.R.Civ.P. 12(b)(6).
The court dismissed the claims brought
under SOX and Dodd-Frank because Plaintiff was not employed by a
publicly traded company and had not reported information to the
Securities and Exchange Commission.
(ECF No. 66 at 8-9).
The
court dismissed the claim under 18 U.S.C. § 242 because it was a
criminal
action.
statute
(ECF
that
No.
did
66,
not
at
authorize
9-10).
a
private
Construing
his
right
of
complaint
liberally, the court determined Plaintiff may have attempted to
raise
a
claim
under
the
Racketeer
Influenced
and
Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, (ECF No. 30,
at 7, 8, 13) but dismissed
a RICO predicate.
those claims for failing to identify
(ECF No. 66, at 10-11).
Although Plaintiff
provided proof that he had exhausted his administrative remedies
after
filing
his
initial
complaint,
the
court,
nevertheless,
dismissed the Title VII claim against all the defendants, except
for Warden Wolfe and MDPSCS,4 because Title VII only authorizes
claims against employers and only Warden Wolfe, in his official
capacity,
and
MDPSCS
were
his
employers.
(Id.
at
13-14).
Having ruled that Warden Wolfe and MDPSCS were proper defendants
4
MDPSCS was named in the original complaint but was not
named in the amended complaint. (ECF No. 1, 4). In its first
memorandum opinion of February 4th, 2016, the court thought
MDPSCS had been dropped from the amended complaint.
(ECF No.
25).
After Plaintiff filed his second amended complaint which
included MDPSCS as a defendant, (ECF No. 30), the court
concluded MDPSCS was still a defendant because the first amended
complaint incorporated the original complaint by reference. (ECF
No. 66).
6
and
due
to
the
confusing
nature
of
the
complaint
and
the
proceedings, the court allowed Defendants an opportunity to file
another motion to dismiss.
(Id. at 17-18).
On March 15, 2017, Defendants filed a motion to dismiss or,
in the alternative, motion for summary judgment.
(ECF No. 68).
Plaintiff responded and then moved to take judicial notice of
facts and next for a protective order.
(ECF Nos. 70, 74, 76).
Defendants replied and then submitted oppositions to Plaintiff’s
motions.
II.
(ECF Nos. 71, 78).
Motion to Dismiss
A.
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)(2), which requires a
“short and plain statement of the claim showing that the pleader
is
entitled
to
relief.”
“Rule
8(a)(2)
still
requires
a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic
recitation
of
the
elements
of
a
cause
of
action”
or
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
stage,
all
well-pleaded
allegations
7
in
a
complaint
“naked
Ashcroft
At this
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)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cty.
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, United Black Firefighters v. Hirst,
604
F.2d
844,
847
(4th
Cir.
1979);
see
also
Francis
v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
In
reviewing
the
motion
to
dismiss
under
Fed.R.Civ.P.
12(b)(6), the court may consider allegations in the complaint,
matters of public record, and documents attached to the motion
to dismiss that are integral to the complaint and authentic.
See Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th
Cir. 2009).
The court may also consider documents attached to
the complaint.
CACI Int’l v. St. Paul Fire & Marine Ins. Co.,
566 F.3d 150, 154 (4th Cir. 2009); see Fed.R.Civ.P. 10(c) (“A
copy of a written instrument that is an exhibit to a pleading is
a part of the pleading for all purposes.”).
8
Pro se 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.
Cir. 1999).
Barnett v. Hargett, 174 F.3d 1128, 1132 (10th
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) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
claim
for
relief.”
(citation
and
internal
quotation
marks
omitted)).
B.
To
Hostile Work Environment
establish
a
prima
facie
case
of
a
hostile
work
environment in violation of Title VII, Plaintiff must show that:
(1) he experienced unwelcome harassment; (2) the harassment was
based on sex; (3) the harassment was sufficiently severe or
pervasive to alter the conditions of employment and create a
hostile work environment; and (4) some basis exists for imputing
9
liability on the employer.
Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003).
Plaintiff has failed to
provide
to
a
basis
to
impute
liability
his
employer,
and,
therefore, his hostile work environment claim will be dismissed.
Plaintiff’s allegations of sexual harassment revolve around
the actions of a single person, Ms. Awanga, who was not employed
by the Defendants but by a contractor.
is
based
on
the
actions
of
a
When a harassment claim
non-supervisory
coworker,
“employers are liable only for their own negligence in failing,
after
actual
or
constructive
adequate action to stop it.”
323, 332 (4th Cir. 1999).
knowledge,
to
take
prompt
and
Mikels v. City of Durham, 183 F.3d
An employer can be deemed to have
actual knowledge if “the employer, or high-echelon officials of
an employer organization” are aware of the conditions.
v. City of Boca Raton, 524 U.S. 775, 789 (1998).
Faragher
An employer
can be deemed to have constructive knowledge if “a reasonable
employer, intent on complying with Title VII, would be aware of
the [harassing] conduct.”
Spicer v. Va. Dep’t of Corr., 66 F.3d
705, 710 (4th Cir. 1995) (en banc).
Plaintiff has not alleged that a reasonable employer should
have known about the harassment nor identified any inadequacy in
his employer’s compliance program.
Thus, there is no basis to
find constructive knowledge. See Ocheltree v. Scollon Prods.,
Inc., 335 F.3d 325, 334 (4th Cir. 2003) (en banc).
10
Plaintiff admits that he did not complain initially when
the conduct happened.
(ECF No. 4, at 11).
He alleges, however,
that Sergeant Emenike saw Ms. Awanga spill a drink on him and
that Sergeant Emenike ignored his complaints about Ms. Awanga.
(ECF No. 4, at 9).
The complaint contains no information about
what Plaintiff told Sergeant Emenike and whether it related to
sexual harassment.
Sergeant Emenike was alleged to be with
Plaintiff when the drink was spilled and also when Ms. Awanga
yelled at Plaintiff after Plaintiff told her to throw away food
she was taking home from JCI.
(ECF No. 4, at 8-9).
Neither of
these
reasonable
notice
incidents
would
put
a
person
on
of
sexual harassment.
In addition, even if Sergeant Emenike had notice, Plaintiff
has
not
Emenike
pled
was
any
the
facts
type
to
of
support
employee
a
finding
whose
that
knowledge
Sergeant
could
be
imputed to the employer.
He has not alleged Sergeant Emenike
was
employee”
a
“management-level
employees.”
had
“authority
over
Wilson v. Tulsa Junior Coll., 164 F.3d 534, 542
(10th Cir. 1998).
point.
or
Indeed, Plaintiff’s own actions belie the
He went directly to the Warden, Assistant Warden, and
Chief of Security when he wanted to give notice of the alleged
harassment.
employees
employer.
This
whose
decision
knowledge
suggests
could
have
that
these
been
imputed
were
the
to
the
Thus, regardless of what Sergeant Emenike knew, his
11
knowledge cannot be imputed to the employer.
See Faragher, 524
U.S. at 789.
On November 29th, Plaintiff allegedly reported the sexual
harassment to the shift captain, Warden, Assistant Warden, and
Chief of Security.
(ECF No. 4, at 2, 12).
To demonstrate
negligence, Plaintiff would need to show that, after learning of
the
conditions,
action
his
designed
to
employer
end
the
failed
to
take
harassment.
Fairfax, 55 F.3d 151, 155 (4th
prompt
Dennis
Cir. 1995).
v.
remedial
Cty.
of
Here, Plaintiff
alleges no act of harassment occurred after his complaint, and
he admits that he was removed from the environment within two
weeks of his email.
(ECF No. 4, at 11).
Moreover, the attachments to Plaintiff’s complaint negate
any possible claim of employer negligence.
leave,
Assistant
Warden
Plaintiff’s email, advised
Campbell
Despite being on
immediately
responded
to
Plaintiff of his right to file an
EEO complaint, explained that a supervisor could help him file
his complaint, and explained that JCI needed more information
such
as
specific
dates,
times,
investigation.
(ECF No. 4-1, at 9).
Plaintiff
not
and
did
immediately
file
actions
to
start
an
After receiving the email,
the
EEO
complaint
and
“decided to wait” until Assistant Warden Campbell came back from
his vacation on December 15 to pursue the matter.
(Id. at 5).
Assistant Warden Campbell, while still on vacation, responded
12
again and reiterated his request for a formal complaint with
sufficient information to begin an investigation.
Because
of
complaints
lodged
against
Plaintiff,
(See id.).
by
the
time
Assistant Warden Campbell returned, Plaintiff had already been
removed from the alleged hostile work environment.
1,
at
18).
Thus,
Defendants
could
not
have
(ECF No. 4-
been
negligent
because they remedied the problem, albeit for different reasons,
before
Plaintiff
had
even
provided
them
with
all
the
information.
In sum, Plaintiff has failed to allege sufficient facts to
show
that
Defendants
negligently,
and,
knew
about
therefore,
his
the
harassment
claim
of
a
and
acted
hostile
environment under a Title VII will be dismissed.
work
See Boyer-
Liberto v. Fontainebleau Corp, 786 F.3d 264, 278 (4th Cir. 2015).
C.
To
Title VII Retaliation
state
a
claim
of
retaliation
under
Title
VII,
a
plaintiff must allege: “(1) engagement in a protected activity;
(2) adverse employment action; and (3) a causal link between the
protected activity and the employment action.”
Court
of
Appeals,
626
F.3d
187,
190
(4th
Coleman v. Md.
Cir.
2010).
“A
‘protected activity’ may fall into two categories, opposition
and participation.”
F.3d
397,
406
(4th
E.E.O.C. v. Navy Fed. Credit Union, 424
Cir.
2005).
“Activities
that
constitute
participation are outlined in the statute: (1) making a charge;
13
(2)
testifying;
(3)
assisting;
or
(4)
participating
in
any
manner in an investigation, proceeding, or hearing under Title
VII.
Laughlin v. Metro. Washington Airports Auth., 149 F.3d
253,
(4th
259
“Opposition
procedures
Cir.
activity
as
well
1998)
(citing
encompasses
as
staging
42
U.S.C.
utilizing
informal
§
2000e-3).
informal
grievance
protests
and
voicing
one’s opinions in order to bring attention to an employer's
discriminatory activities.”
both
opposition
and
Id.
Plaintiff brings claims of
participation.
He
alleges
“punished for . . . the initial complaint.”
He
also
alleges
Defendants
retaliated
that
he
was
(ECF No. 4 at 19).
against
him
“exposure of prostitution . . . within the agency[.]”
for
his
(ECF No.
30, at 7).
As to the participation claim, Plaintiff’s complaint is a
protected activity, and Plaintiff has stated facts, such as a
loss of overtime, which, if true, would show the transfer to be
an adverse action.
(See ECF No. 4, at 16).
Plaintiff, however,
cannot demonstrate a causal link between the alleged adverse
action
and
any
protected
activity.
requires but-for causation.
Title
VII
retaliation
Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2533 (2013).
A plaintiff must allege
that “the unlawful retaliation would not have occurred in the
absence
of
employer.”
the
Id.
alleged
Here,
wrongful
Plaintiff
14
action
or
actions
acknowledges
that
of
the
he
was
transferred
to
another
facility
complaint was filed against him.
Plaintiff
activity
fails
was
the
to
plead
but-for
facts
cause
because
a
sexual
harassment
(ECF No. 4, at 12).
showing
and
that
instead
his
admits
Because
protected
that
the
transfer was made for another reason, Plaintiff has not pled
sufficient facts to support a claim of Title VII retaliation
related to his complaint of sexual harassment.
As to the opposition complaint, Plaintiff has failed to
show he engaged in protected activity.
Under Title VII, an
employee is protected from retaliation when acting in opposition
“to employment actions actually unlawful under Title VII” or
“employment
actions
unlawful.”
Navy Fed. Credit Union, 424 F.3d at 406 (emphasis
added).
an
employee
reasonably
believes
to
be
In this context, the actions complained about need to
be actions made unlawful pursuant to Title VII.
Boyer-Liberto
v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en
banc).
Here, Plaintiff alleges in the complaint:
[Plaintiff]
exposed
a
history
of
[e]xtortion,
[p]rostitution
and
[r]acketeering with the agency.
Plaintiff
further exposed the racketeering with the
Organization BIG LEAGUE OF CORRECTIONAL
OFFICERS who is mainly [a] group of YORUBA
TRIBE OF NIGERIA CORRECTION OFFICERS who act
like a click or sect to protect the interest
of their members.
Furthermore, Plaintiff
made mention of FEMALE CORRECTIONAL OFFICERS
15
engagements
of
Prostitution
confines of the agency.
(ECF No. 30, at 8).
within
the
These allegations have nothing to do with
employment practices made unlawful under Title VII.
Therefore,
Plaintiff is not protected pursuant to Title VII.
See Boyer-
Liberto, 786 F.3d at 282.
III. Motion to supplement
Plaintiff’s
motion
to
take
judicial
notice
requests
the
court to take “judicial notice” pursuant to Fed.R.Evid. 201 that
his transfer was “meant to [p]unish Plaintiff for bringing a
legal
proceeding[.]”
(ECF
No.
74,
at
1).
In
support,
he
alleges a number of contentious points that, if true, would
support
finding
the
transfer
was
legal proceeding in this court.”
74).
punishment
“for
bringing
(ECF No. 74, at 5).
a
(ECF No.
Courts are only permitted to “notice a fact that is not
subject to reasonable dispute.”
Fed.R.Evid. 201(a).
His motion
does not contain facts but allegations subject to dispute, and
cannot be judicially noticed pursuant to Fed.R.Evid. 201.
These
allegations can be added to the complaint if the court gives
leave to amend, and, therefore, this motion will be construed as
a
motion
for
leave
to
amend.
Likewise,
his
motion
for
a
protective order and for leave to supplement contains additional
allegations, some of which are identical to the motion to take
16
judicial
notice,
and
motion to amend.
will
also
be
construed,
in
part,
as
a
(ECF No. 76).
Courts should “freely give leave [to amend] when justice so
requires,”
and
commits
district court.
the
matter
to
the
discretion
of
the
Fed.R.Civ.P. 15(a)(2); see Simmons v. United
Mortg. & Loan Inv., LLC, 634 F.3d 754, 769 (4th Cir. 2011).
Denial of leave to amend is appropriate “only when the amendment
would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would be
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
futile.”
Cir.
1999)
(emphasis
in
the
original)
(quoting
Johnson
v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
Leave to amend may be denied as futile “if the proposed
amended
complaint
fails
to
satisfy
the
requirements
federal rules,” including federal pleading standards.
Perm
Nat.
Gaming,
Inc.,
637
F.3d
462,
471
(4th
of
the
Katyle v.
Cir.
2011)
(quoting United States ex rel. Wilson v. Kellogg Brown & Root,
Inc., 525 F.3d 370, 376 (4th Cir. 2008)); Oroweat Foods Co., 785
F.2d at 510 (“Leave to amend, however, should only be denied on
the ground of futility when the proposed amendment is clearly
insufficient or frivolous on its face.” (citations omitted)).
Here,
retaliation
the
and
proposed
would
amendments
supplement
relate
the
to
original
his
claim
of
complaint
to
provide further support that the transfer was an adverse action.
17
(ECF Nos. 74, at 5-6; 76, at 5-7).
to demonstrate but-for causation.
dismissed
for
complaint,
which
subject
to
failing
does
dismissal
to
not
on
His amendment does nothing
As the original claim will be
allege
address
the
same
causation,
this
flaw,
grounds
and
the
amended
would
is
also
be
therefore
futile.
IV.
Motion for a protective order
Plaintiff also moves for a protective order pursuant to 18
U.S.C. § 1514(b)(1).
cases.
This statute only applies to criminal
The substance of the motion suggests that he may want a
preliminary injunction reinstating him to his previous position
at JCI pending the outcome of this case.
Regardless, as the
underlying action will be dismissed, the motion for a protective
order will be denied as moot.
V.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendants will be granted, the motion to take judicial notice
filed
by
Plaintiff
will
be
denied,
and
the
motion
protective order filed by Plaintiff will be denied.
for
A separate
order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
18
a
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