Braswell v. Miles/Hood et al

Filing 26

MEMORANDUM OPINION and ORDER granting 20 Motion to Dismiss. Plaintiff's claims against Defendant Hood Industries are dismissed without prejudice. Signed by District Judge Keith Starrett on 6/27/18. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

BILLY BRASWELL,

PLAINTIFF

v.

CIVIL ACTION NO. 2:17-CV-201-KS-MTP

VINSON GUARD SERVICE, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This is an ADA case. Plaintiff was a “part time security guard and spark
watcher” at a sawmill owned by Defendant Hood Industries. Amended Complaint at
2, Braswell v. Vinson Guard Service, No. 2:17-CV-201-KS-MTP (S.D. Miss. Feb. 20,
2018), ECF No. 8. He specifically alleged that Defendant Vinson Guard Service was his
employer. Id. Plaintiff contends that Defendants failed to reasonably accommodate his
disabilities of “bad back,” “diabetic foot pain,” “heart condition,” and “MRSA staph.” Id.
Specifically, he contends that they would not allow him to sit on a folding metal chair
while he “spark watched” for the sawmill’s welders. Id. Hood Industries filed a Motion
to Dismiss [20]. For the reasons provided below, the motion is granted.
I. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir.
2010) (punctuation omitted). “To be plausible, the complaint’s factual allegations must
be enough to raise a right to relief above the speculative level.” Id. (punctuation

omitted). The Court must “accept all well-pleaded facts as true and construe the
complaint in the light most favorable to the plaintiff.” Id. But the Court will not accept
as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.”
Id. Likewise, “a formulaic recitation of the elements of a cause of action will not do.”
PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th Cir. 2010)
(punctuation omitted). “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).
II. DISCUSSION
Hood argues that it can not be liable under the ADA because it was not
Plaintiff’s employer. Indeed, in his Amended Complaint, Plaintiff specifically alleged
that Vinson Guard Service was his employer.
The ADA prohibits “covered entit[ies]” from “discriminat[ing] against a qualified
individual on the basis of disability . . . .” 28 U.S.C. § 12112(a). In this context,
discrimination includes “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an
. . . employee . . . .” 28 U.S.C. § 12112(b)(5)(A). A “covered entity” is “an employer,
employment agency, labor organization, or joint labor-management committee.” 28
U.S.C. § 12111(2). “The term ‘employer’ means a person engaged in an industry
affecting commerce who has 15 or more employees . . . and any agent of such person .
. . .” 28 U.S.C. § 12111(5)(A). An “employee” is “an individual employed by an employer
. . . .” 28 U.S.C. § 12111(4). Therefore, under the statute’s plain terms, a plaintiff can
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only sue a defendant under Title I of the ADA if the plaintiff is an employee of the
defendant. Flynn v. Distinctive Home Care, Inc., 812 F.3d 422, 427 (5th Cir. 2016).
In response to Hood’s motion, Plaintiff contends that Hood and Vinson were
“joint employers.” Response at 1, Braswell v. Vinson Guard Service, No. 2:17-CV-201KS-MTP (S.D. Miss. Apr. 26, 2018), ECF No. 24. Plaintiff argues that Vinson only
acted “in the capacity of a staffing service,” and that Hood trained and supervised the
spark watchers. Id. However, none of these allegations were in the Amended
Complaint. In fact, Plaintiff specifically alleged that Vinson Guard Service was his
employer. Amended Complaint [8], at 2.
When considering a Rule 12(b)(6) motion, the Court “generally must limit itself
to the contents of the pleadings . . . .” Brand Coupon Network, LLC v. Catalina
Marketing Corp., 748 F.3d 631, 635 (5th Cir. 2014). “[N]ew factual allegations
presented in a plaintiff’s opposition to a motion to dismiss . . . are insufficient to cure
deficient allegations in a complaint.” Tanner v. Pfizer, Inc., No. 1:15-CV-75-HSO-JCG,
2015 WL 6133207, at *4 (S.D. Miss. Oct. 19, 2015). And while the Court should “freely
give leave [to amend a complaint] when justice so requires,” FED. R. CIV. P. 15(a)(2),
“a party must ‘expressly request’ leave to amend.” Estes v. JP Morgan Chase Bank,
Nat’l Ass’n, 613 F. App’x 277, 280 (5th Cir. 2015) (quoting United States ex rel. Willard
v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003)).
In summary, Title I of the ADA only permits plaintiff-employees to sue
defendant-employers. Plaintiff specifically alleged in his Amended Complaint that

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Vinson Guard Services was his employer, rather than Hood Industries. Although
Plaintiff now contends that Hood was also his employer, he has not sought leave to file
a Second Amended Complaint and correct his earlier allegations. Therefore, the Court
must grant Hood’s motion and dismiss Plaintiff’s ADA claim against it.
III. CONCLUSION
For these reasons, the Court grants the Motion to Dismiss [20] filed by
Defendant Hood Industries. Plaintiff’s claims against Defendant Hood Industries are
dismissed without prejudice. See Moawad v. Childs, 673 F.2d 850, 852 (5th Cir. 1982).
SO ORDERED AND ADJUDGED this 27th day of June, 2018.

/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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