Simmons v. Wheeling Island Gaming, Inc. et al
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' 8 MOTION TO DISMISS, DENYING PLAINTIFF'S 18 MOTION TO SUPPRESS, AND DENYING PLAINTIFF'S 33 MOTION TO AMEND COMPLAINT. This civil action is DISMISSED and STRICKEN from the active docket of this Court. Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 7/10/12. (c to pla by certified mail)(mji) (Additional attachment(s) added on 7/10/2012: # 1 certified mail receipt) (mji).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL ANN SIMMONS,
Civil Action No. 5:12CV50
WHEELING ISLAND GAMING, INC.,
W.D.R.A. FOOD SERVICE, INC.,
WHEELING LAND DEVELOPMENT CO.,
RONALD A. SULTEMEIER, Incorporator,
TERRY C. BURTON, Incorporator,
JAMES W. SIMMS, President,
MICHAEL MAESTLE, Vice President,
TERRY C. BURTON, Secretary,
WILLIAM J. BISSETT, Director,
CHARLES E. MORAN, JR., and
DAN HANCOCK, Head of Security,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS,
DENYING PLAINTIFF’S MOTION TO SUPPRESS, AND
DENYING PLAINTIFF’S MOTION TO AMEND COMPLAINT
On March 14, 2012, the pro se1 plaintiff in the above-styled
civil action filed a complaint in the Circuit Court of Ohio County,
West Virginia asserting a discrimination claim pursuant to Title
III of the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12101 et seq., against the defendants. The complaint sets
forth no facts, but requests damages in the amount of $2,500.00 to
The case was removed to this Court on April 5, 2012.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
On April 10, 2012, the defendants filed a motion to dismiss in
which they argue that the plaintiff’s complaint fails to state a
claim for which relief can be granted.
The defendants note that
the complaint contains no allegation that the plaintiff suffers
from any disability, no allegation of what acts or actions of
discrimination the plaintiff allegedly suffered, and no allegations
to which the defendants can properly respond.
On April 12, 2012, the plaintiff filed a motion to remand,
which this Court denied on May 16, 2012.
Pursuant to this Court’s
order, the plaintiff then filed a response to the defendants’
motion to dismiss.
In her response, the plaintiff reasserts that
Specifically, the plaintiff argues that the defendants denied her
access to their “place of Public Accommodations,” and denied her
“full enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations.”
Pl.’s Resp. 3.
According to the
discrimination by denying her access to the casino. Pl.’s Resp. 4.
The defendants filed a reply in support of their motion to
dismiss on May 30, 2012, in which they emphasize that the plaintiff
has still failed to allege how she was discriminated against with
respect to a place of public accommodation.
The defendants assert
that the West Virginia Human Rights Commission has twice found no
probable cause to the plaintiff’s complaints of discrimination and
has twice entered orders dismissing her complaints.
exclusion from the casino has been tested and upheld before the
West Virginia Human Rights Commission, the defendants contend that
the plaintiff’s complaint in this case is time-barred.
the defendants assert that the plaintiff is seeking monetary
relief, which Title III of the ADA does not provide to private
After the motion to dismiss was fully briefed, the plaintiff
filed a motion to suppress the defendants’ reply.
In this motion,
the plaintiff argues that the defendants’ reply is inadmissible,
but she offers no argument in support of this assertion.
Mot. to Suppress 1.
Instead, the plaintiff reiterates that the
defendants violated her rights under Title III of the ADA by
denying her access to the casino.
The plaintiff also reasserts
that she is disabled, and lists a variety of ailments from which
On June 14, 2012, the parties appeared in the chambers of
United States Magistrate Judge James E. Seibert for a scheduled
mediation. The next day, the plaintiff filed a motion to amend her
complaint in order to add a claim of race discrimination.
29, 2012, the defendants filed a response in opposition to the
motion to amend, in which they argue that the plaintiff has failed
plaintiff did not file a reply in support of her motion to amend.
The defendants’ motion to dismiss, the plaintiff’s motion to
suppress, and the plaintiff’s motion to amend the complaint are all
pending before this Court.
For the reasons stated below, this
Court finds that the motion to dismiss must be granted, the motion
to suppress must be denied, and the motion to amend the complaint
must be denied.
Motion to Dismiss
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court must accept all well-pled facts contained in the complaint as
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc, 591 F.3d
250, 255 (4th Cir. 2009). However, “legal conclusions, elements of
a cause of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule 12(b)(6)
Id. (citing Ashcroft v. Iqbal, 556 U.S. 677, 678
inferences, unreasonable conclusions, or arguments.”
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir.
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.
5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
The Rule 12(b)(6) motion also must be distinguished from a
motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.
purposes of the motion to dismiss, the complaint is construed in
allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 556 U.S. at 678). Detailed factual
allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
Motion to Amend Complaint
Rule 15(a) of the Federal Rules of Civil Procedure grants this
Court broad discretion concerning motions for leave to amend
See Keller v. Prince George’s Cnty., 923 F.2d 30, 33
(4th Cir. 1991) (“Motions to amend are committed to the discretion
of the trial court.”); Fed. R. Civ. P. 15(a).
Rule 15 states, in
pertinent part, that “[a] party may amend its pleading once as a
matter of course within . . . 21 days after serving it, or . . . 21
days after service of . . . a motion under Rule 12(b).”
Civ. P. 15(a)(1).
If a party seeks to amend its pleadings in all
other cases, it may only do so “with the opposing party’s written
consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2).
court should freely give leave when justice so requires.”
Further, leave to amend should be granted absent some reason
“such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of the amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Ward Elec. Serv.
v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987);
Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984).
Motion to Dismiss
The Federal Rules of Civil Procedure require only “a short and
plain statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.”
U.S. at 545 (internal quotations omitted).
A plaintiff cannot
satisfy this standard with a complaint containing only “labels and
conclusions” or a “formulaic recitation of a cause of action’s
Rather, a plaintiff must allege facts sufficient
“to raise a right to relief above the speculative level,” stating
a claim that is “plausible on its face.”
Id. at 547.
“A claim has
facial plausibility when the plaintiff pleads factual content that
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S.
Therefore, in order for a complaint to survive dismissal
under Rule 12(b)(6), the plaintiff must “allege facts sufficient to
state all the elements of her claim.”
Bass v. E.I. DuPont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Even construing the pro se complaint liberally and in the
light most favorable to the plaintiff, this Court finds that the
plaintiff has failed to state a claim for which relief can be
The complaint does nothing more than identify the
parties, reference the ADA, and request damages.
It contains no
facts regarding any action by the defendants that entitles the
plaintiff to relief.
The plaintiff’s response to the motion to
plaintiff’s response details her disabilities and argues that the
defendants are retaliating against her for filing claims concerning
her exclusion from the casino, she does not set forth any facts
that would allow this Court to draw the reasonable inference that
the defendants are liable to her for violations of the ADA.
Neither the complaint nor the response to the motion to dismiss
inform this Court what the various defendants allegedly did, or did
not do, that constitutes the discrimination that the plaintiff
exclusion from the casino in 2001, even if this Court found the
plaintiff’s complaint to be plausible on its face, the complaint is
See Roe v. Cnty. Comm’n of Monongalia Cnty., 926 F.
Supp. 74, 78 (N.D. W. Va. 1996) (concluding that a civil action
pursuant to Title II of the ADA is subject to the two-year statute
of limitations found at W. Va. Code § 55-2-12, as the West Virginia
Human Rights Act is the most analogous West Virginia law to the
Because this action was commenced over ten years after the
The complaint also fails to state a recognizable claim for
As the defendants correctly note, Title III of
the ADA does not provide for an award of money damages in suits
The plaintiff repeatedly references June 17, 2010 as the date
that she was denied access to the casino. However, the plaintiff
admits that she was initially denied access in August 2001.
Although the plaintiff attempts to label June 17, 2010 as the date
of the discrimination, it is apparent from her submissions to this
Court that any exclusion that occurred on that particular date was
merely a continuation of the exclusion that began in 2001.
brought by private parties.
See Goodwin v. C.N.J., Inc., 436 F.3d
available for private parties suing under Title III of the ADA)
For these reasons, the defendants’ motion to
dismiss the complaint must be granted.
Motion to Amend Complaint
The plaintiff seeks to amend her complaint in order to add a
claim for racial discrimination under the Civil Rights Act of 1964.
Again, the plaintiff’s motion sets forth no facts in support of
Nothing within the motion or the exhibit attached
thereto puts the multiple defendants on notice of what it is the
plaintiff claims any or all of them did or did not do that gives
rise to a new cause of action.
This Court finds that due to the fundamental deficiencies of
the complaint, and the fact that the proposed amendment does
nothing to cure these deficiencies, amending the complaint would be
That is, this Court finds that the proposed amended
complaint fails to satisfy the requirements of the federal rules.
Fed. R. Civ. P. 15(a).
Additionally, the plaintiff has failed to
abide by Rule 15.01 of the Local Rules of Civil Procedure, which
Any party filing a motion to amend a pleading that
requires leave of court to file, shall attach to that
motion a signed copy of the proposed amended pleading.
However, the amended pleading shall not be filed until
the Court grants the particular motion.
LR Civ P 15.01.
The plaintiff did not attach a copy of the
proposed amended pleading to her complaint.
Instead, she attached
what appears to be her own brief summary of the Civil Rights Act.
Pl.’s Mot. to Amend Compl. Ex. A.
For these reasons, the motion to
amend the complaint must be denied.
For the reasons stated above, the defendants’ motion to
dismiss (ECF No. 8) is GRANTED and the plaintiff’s motion to amend
(ECF No. 33) is DENIED.
Because the plaintiff offers no argument
in support of her motion to suppress the defendants’ reply (ECF No.
28), it is also DENIED.
Accordingly, it is ORDERED that this case
be DISMISSED and STRICKEN from the active docket of this Court.
The plaintiff may appeal the final judgment of this Court by filing
a notice of appeal with the district clerk within 30 days after
entry of this opinion.
Fed. R. App. P. 4.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff and to counsel of record
Pursuant to Federal Rule of Civil Procedure 58, the Clerk
is DIRECTED to enter judgment on this matter.
July 10, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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