Wilson v. Comcast Cable

Filing 26

OPINION AND ORDER granting 24 Motion to Dismiss. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RONETTE WILSON,
Plaintiff,
v.
Case No. 14-12218
COMCAST CABLE,
Hon. Patrick J. Duggan
Defendant.

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT PURSUANT
TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
Plaintiff Ronnette Wilson, who is proceeding in forma pauperis, filed this
disability discrimination lawsuit against Defendant Comcast Cable on June 5,
2014. The Court twice required Plaintiff to amend her complaint. Plaintiff filed
her second amended complaint on September 23, 2014. On October 14, 2014,
Defendant filed a motion to dismiss Plaintiff’s second amended complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6). This motion, to which Plaintiff
declined to respond, is presently before the Court. Having determined that oral
argument would not significantly aid the decisional process, the Court dispensed
with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).
For the reasons stated herein, the Court grants Defendant’s motion.

I.

BACKGROUND

Upon reviewing Plaintiff’s June 5, 2014 complaint to ensure that the Court
possessed jurisdiction, the Court ordered Plaintiff to file an amended pleading by
June 20, 2014, as the threadbare complaint, which sought to state a claim under the
Americans with Disabilities Act of 1990 (“ADA”), contained virtually no factual
enhancement. Plaintiff complied with this Order and, on June 20, 2014, filed an
amended pleading. Plaintiff’s amended complaint contained more factual
enhancement than her first filing, however, the Court, upon Defendant’s motion,
dismissed the amended pleading on September 9, 2014 for failure to comply with
the Federal Rules of Civil Procedure. The Court ordered Plaintiff to file a second
amended complaint by September 23, 2014.1
On September 23, 2014, Plaintiff filed an “Amendment Complaint Rule (4)(H) F. R.C. P,” which the Court construes as Plaintiff’s second amended
complaint. This pleading incorporated some of the suggested changes set forth in
the Court’s September 9, 2014 Order (for example, Plaintiff named Comcast Cable
Communication Management, LLC). Further, the second amended complaint was

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In its September 9, 2014 Order, the Court also denied Plaintiff’s Motion to
Dismiss Defendant’s pleadings. On September 10, 2014, the Court received
another Motion to Strike Defendant’s Pleadings, purportedly filed pursuant to Rule
12(f). However, because the amended complaint had been dismissed and because
Defendant’s motion had been granted, there were simply no pleadings on
September 10 to strike or otherwise adjudicate. As such, the Court denied
Plaintiff’s motion as moot.
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properly served on Defendant. However, Plaintiff’s second amended complaint
fails to set forth any facts concerning her disability, employment, or separation of
employment with Comcast.
Defendant filed a motion to dismiss Plaintiff’s second amended complaint
for failure to state a claim upon which relief can be granted on October 14, 2014.
Plaintiff declined to file a response.
II.

GOVERNING LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows
the Court to assess whether a plaintiff’s pleadings state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6); Flanory v. Bonn, 604 F.3d 249, 252 (6th
Cir. 2010) (“A motion to dismiss for failure to state a claim is a test of the
plaintiff’s cause of action as stated in the complaint, not a challenge to the
plaintiff’s factual allegations.”).
As articulated by the Supreme Court of the United States, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 555, 570, 127 S. Ct. 1955, 1974 (2007)). “Plausibility requires showing
more than the ‘sheer possibility’ of relief but less than a ‘probab[le]’ entitlement to
relief.” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010)
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(quotation omitted). This facial plausibility standard requires claimants to put
forth “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of” the requisite elements of their claims. Twombly, 550 U.S. at 557, 127
S. Ct. at 1965. Even though a complaint need not contain “detailed” factual
allegations, its “factual allegations must be enough to raise a right to relief above
the speculative level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502
F.3d 545, 548 (6th Cir. 2007) (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1965)
(internal citations omitted).
Compared to formal pleadings drafted by lawyers, a generally less stringent
standard is applied when construing the allegations pleaded in a pro se
complaint. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596 (1972); see
also Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007)
(reaffirming rule of more liberal construction of pro se complaints less than two
weeks after issuing Twombly). The leniency with which courts construe pro se
plaintiffs’ complaints, however, does not abrogate the basic pleading requirements
designed to ensure that courts do “not have to guess at the nature of the claim
asserted.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Pro se plaintiffs
still must provide more than bare assertions of legal conclusions to survive a
motion to dismiss. Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citing
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.
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1988)). However, because deficiencies in a pro se plaintiff’s complaint are likely
attributable to a lack of training, “courts typically permit the losing party leave to
amend[,]” even in the absence of a specific request by the non-moving party.
Brown v. Matauszak, 425 F. App’x 608, 614-15 (6th Cir. 2011) (quotation
omitted).
III.

ANALYSIS

As noted above, Plaintiff’s second amended complaint contains no factual
enhancement with respect to her underlying claim of discrimination. While
Plaintiff’s pleading does make reference to the ADA, 42 U.S.C. § 12101, et seq.,
specifically Titles VII, XVI, and XVL,2 it does not describe her disability nor does
it set forth any facts from which this Court could reasonably infer that Defendant
discriminated against Plaintiff on the basis of a disability.
The ADA prohibits covered employers from discriminating against a
“qualified individual on the basis of disability” with regard to hiring, advancement,
training, termination, and “other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). A “qualified individual with a disability” is “an individual
with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” Id. § 12111(8). Despite a thorough review of Plaintiff’s second
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As Defendant points out, the ADA does not contain these titles.
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amended complaint, the Court is unable to ascertain the basis for Plaintiff’s ADA
claim, as Plaintiff does not allege that she has a disability or that Defendant
regarded her as having one.
Similar to the plaintiff in Baker v. Salvation Army, No. 09-11424, 2011 U.S.
Dist. LEXIS 34441 (E.D. Mich. Mar. 30, 2011) (Lawson, J.), Plaintiff’s failure to
provide any factual enhancement to her conclusory assertion that Defendant
violated the ADA is fatal. Id. at *7-8 (“The plaintiff has not made an effort to
follow the rules by describing the nature of his grievance against the defendant or
providing enough notice so that the defendant can defend against the claim.”).
Although Plaintiff’s first amended complaint made reference to congestive heart
failure and anxiety, this pleading was dismissed by this Court on September 9,
2014. “[L]iberal treatment of pro se pleadings does not require lenient treatment of
substantive law,” and ultimately, those who proceed without counsel must still
comply with the procedural rules that govern civil cases in the federal courts.
Durante v. Fairlane Town Ctr., 201 F. App’x 338, 344 (6th Cir. 2006); Whitson v.
Union Boiler Co., 47 F. App’x 757, 759 (6th Cir. 2002).
Further, the Court notes that there is no indication Plaintiff exhausted her
administrative remedies prior to instituting the present action. As a prerequisite to
filing suit in federal court under the ADA, a plaintiff must first file a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”) or
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the Michigan Department of Civil Rights (“MDCR”) and must also receive from
either entity a notice of right to sue. 42 U.S.C. § 12117(a); id. § 2000e-5; see also
Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 309 (6th Cir. 2000)
(explaining that exhaustion of administrative remedies is a condition precedent to
bringing a claim under the ADA in federal court).
IV.

CONCLUSION AND ORDER

For the reasons set forth above, the Court concludes that Plaintiff’s second
amended complaint fails to state a claim upon which relief can be granted.
Accordingly,
IT IS ORDERED that Defendant’s motion to dismiss Plaintiff’s second
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is
GRANTED and Plaintiff’s lawsuit is DISMISSED WITHOUT PREJUDICE.
Dated: November 24, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Ronnette Wilson
634 Constitution Street
Canton, MI 48188
Eric J. Pelton, Esq.

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