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