Anderson v. Kanawha Valley Regional Transportation Authority

Filing 12

MEMORANDUM OPINION AND ORDER denying without prejudice defendant's 3 Motion to Dismiss; the plaintiff is granted leave to file an Amended Complaint in an attempt to cure the deficiencies addressed more fully herein; the plaintiff is NOTIFI ED that it will be insufficient for him to simply refer to his prior Complaint or additional documentation, or to incorporate the same by reference in the Amended Complaint; the Amended Complaint will supersede the original Complaint, and there must be one integrated document that will provide the defendant with notice of the plaintiff's claims and factual allegations; and as further Notified and set forth more fully herein; the plaintiff's Amended Complaint to be filed by 4/24/2017. Signed by Magistrate Judge Dwane L. Tinsley on 3/23/2017. (cc: plaintiff, pro se; counsel of record) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
KENNETH M. ANDERSON,
Plaintiff,
v.

Case No. 2:16-cv-08079

KANAWHA VALLEY REGIONAL
TRANSPORTATION AUTHORITY,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is assigned to the undersigned United States Magistrate Judge for final
disposition pursuant to the consent of the parties (ECF No. 8). Pending before the court
is the defendant’s Motion to Dismiss Complaint (ECF No. 3).
PROCEDURAL HISTORY
On August 23, 2016, the defendant removed this civil action to this court from the
Circuit Court of Kanawha County based on federal question jurisdiction. The plaintiff’s
one-page Complaint alleges as follows:
This lawsuit is being filed against Kanawha Valley Regional Transportation
Authority because certain drivers employed by KVRTA have continuously
vi[o]lated my rights. Ten months ago a driver made an attempt to murder
me with the bus he was driving! Simply stated, I charge KVRTA’s drivers
with overt racial discrimination, in violation of my rights under Title VI of
the Civil Rights Code. Suit amount $150,000.
(ECF No. 1-1 at 2).
On August 29, 2016, the defendant filed a Motion to Dismiss (ECF No. 3) and a
Memorandum of Law in support thereof (ECF No. 4). The defendant’s motion documents

assert that the plaintiff’s Complaint fails to state a claim upon which relief can be granted
and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On September 19, 2016, the plaintiff filed a one-page Letter-Form Response to the
Motion to Dismiss (ECF No. 6), in which he requests that the court deny the motion and
summarily asserts that he “will swear under oath in court that the facts alledged [sic;
alleged] in the Complaint ware completely true an[d] valid.” (Id.) The defendant did not
file a reply brief. This matter is ripe for adjudication.1
STANDARD OF REVIEW
Pro se complaints are held to less stringent standards than those drafted by
attorneys, and the court is obliged to construe liberally such complaints. However, in Bell
Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed that a
case should be dismissed for failure to state a claim upon which relief can be granted if,
viewing the well-pleaded factual allegations in the complaint as true and in the light most
favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to
relief that is plausible on its face.” While the complaint need not assert “detailed factual
allegations,” it must contain “more than labels and conclusions” or a “formulaic recitation
of the elements of a cause of action.” Id. at 555.
The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 556
U.S. 662 (2009), a civil rights case. The Court wrote:
Two working principles underlie our decision in Twombly. First, the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice. [Twombly, 550 U.S.] at 555, 127 S. Ct. 1955 (Although for the
purposes of a motion to dismiss we must take all of the factual allegations
On January 3, 2017, the Clerk’s Office received and docketed a Notice of Change of Address from the
plaintiff and updated his address on the docket sheet.

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in the complaint as true, we “are not bound to accept as true a legal
conclusion couched as a factual allegation” (internal quotation marks
omitted). Rule 8 . . . does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss. Id., at 556.
***
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
556 U.S. at 678-79.
ANALYSIS
The defendant’s Motion to Dismiss contends that the plaintiff’s Complaint
contains nothing more than a conclusory, unsupported allegation of discrimination or
possibly some other unspecified intentional tort or negligence. As further noted in the
defendant’s Memorandum:
The Complaint is required to provide at least some factual allegations of
Plaintiff’s alleged injuries and “propel the claim into the realm of the
plausible.” [Piasecki v. Wal-Mart Stores East, LP, Civil Action No. 2:08cv-01301, 2009 WL 8626849 *1 (S.D. W. Va. Feb. 20, 2009)]. As it now
stands, this Complaint fails to allege even what Plaintiff’s injuries are, if any.
(ECF No. 4 at 4). The Memorandum further asserts as follows:
There are only three (3) full sentences in the Complaint. The first
alleges that unspecified KRT drivers have continuously violated Plaintiff’s
rights. Who the drivers are, what they allegedly did, where this happened,
when it happened, and in what manner, all go unsaid.
The second sentence is equally unavailing. It alleges an attempted
vehicular homicide. Again, no details are given other than a vague reference
to ten (10) months ago, presumably sometime in October 2015. Certainly
there is no detail that would put KRT on fair notice as to what they are
supposed to defend against [].
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The final sentence is an unsupported allegation of racial
discrimination and a reference to Title VI of the Civil Rights Act. The
allegation does not even recite the legal elements of the claim, leaving KRT
to guess as to what parts of a quite lengthy statute they are to respond to.
(Id. at 2).
The plaintiff’s Response summarily asserts that he will swear to the validity of the
facts alleged in the Complaint, and in no way contests the defendant’s assertion that his
race discrimination claim is insufficiently pled. (ECF No. 6).
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., provides that “No
person in the United States shall, on the grounds of race, color or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
At the outset, the plaintiff’s Complaint does not even allege that Kanawha Valley Regional
Transportation Authority (“KRT”) is a program or activity that receives federal financial
assistance. However, even assuming that KRT is an entity to which Title VI applies, the
plaintiff’s Complaint is devoid of sufficient facts to establish a plausible violation of Title
VI by KRT or any individuals employed thereby.
As noted by the defendant, the Complaint fails to allege any specific facts
concerning what KRT drivers have discriminated against him, how such drivers allegedly
discriminated against him, when such discrimination allegedly occurred and how he has
been injured by such alleged discrimination. At most, the attachments to the Complaint
indicate that the plaintiff lodged a complaint concerning an incident on March 12, 2016,
that allegedly occurred between 7:50 and 8:00 p.m., on route #21, involving bus #406,
during which the driver’s children allegedly made a comment directed to the plaintiff that
was not overtly racial in nature. The plaintiff’s complaint alleged as follows:
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On 3/12/16 at approximately 7:50-8:00 I boarded bust #406, the driver’s 2
children were on the bus. The daughter was polite – the son gave me a look
– a glower that told me that I disgusted him. Four or 6 minutes later he said
something to his sister, chiding her for smiling at every “retard” that got on
the bus. This insult was indirectly given to me. I was the only passenger on
the bus. I didn’t say anything then, but the next time I surely will.
(ECF No. 1, Attach. 1 at 4-5). A second attachment to the Complaint addresses a
complaint made by the plaintiff concerning an incident that occurred at approximately
7:10 p.m. on July 18, 2016, during which Nitro bus #3, which was allegedly operated by
an “unknown white male” allegedly drove by the plaintiff without stopping.

That

complaint document further states:
I was standing adjacent to Beatrice and West Washington St. The Nitro bus
was going east into the transit mall. This drive[r] clearly saw me standing
there with the fare in my right hand. He slowed down and looked at me but
kept on going and not stopping. I know that he saw me standing but ignored
me. This happened in another location 3 weeks ago.
(Id. at 6).
Even incorporating the facts contained in these attachments as part of the
Complaint, and accepting them as true as the court must when considering a Rule
12(b)(6) motion, the undersigned FINDS that the plaintiff’s Complaint is insufficient to
give rise to a plausible claim of race discrimination, or any other claim actionable in this
federal court. Nothing in the facts presented gives rise to a plausible inference of
discrimination based upon race and the plaintiff’s allegations are largely threadbare legal
conclusions.
However, the undersigned notes that “the Fourth Circuit has stated that a court
should consider granting plaintiffs, particularly pro se plaintiffs, leave to amend if it
dismisses a complaint based on [Rule] 12(b)(6).” Smith v. Virginia, No. 3:08cv800, 2009

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WL 2175759, at *9 (E.D. Va. July 16, 2009) (citing Ostrzenski v. Seigel, 177 F.3d 245, 252–
53 (4th Cir.1999)).
Amendment should be refused only if it appears to a certainty that plaintiff
cannot state a claim. The better practice is to allow at least one amendment
regardless of how unpromising the initial pleading appears because except
in unusual circumstances it is unlikely that the court will be able to
determine conclusively on the face of a defective pleading whether plaintiff
actually can state a claim.
Ostrzenski, 177 F.3d at 253. Under this authority, it is hereby ORDERED that the
defendant’s Motion to Dismiss (ECF No. 3) is DENIED WITHOUT PREJUDICE. It
is further ORDERED that the plaintiff is granted leave to file an Amended Complaint in
an attempt to cure the deficiencies addressed herein.
The plaintiff is hereby NOTIFIED that it will be insufficient for him to simply
refer to his prior Complaint or additional documentation, or to incorporate the same by
reference in the Amended Complaint. The Amended Complaint will supersede the
original Complaint, and there must be one integrated document that will provide the
defendant with notice of the plaintiff’s claims and factual allegations.
The plaintiff is further NOTIFIED that, pursuant to Rule 10 of the Federal Rules
of Civil Procedure, he should include a caption of the case with the names of all of the
parties, and he should state his claims in numbered paragraphs, “each limited as far as
practicable to a single set of circumstances,” and each type of claim, if more than one,
should be set out in a separate count, to promote clarity. Fed. R. Civ. P. 10. It is hereby
ORDERED that the plaintiff’s Amended Complaint shall be filed by April 24, 2017.
The Clerk is directed to mail a copy of this Order to the pro se plaintiff and to
transmit a copy to counsel of record.
ENTER:

March 23, 2017
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