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Glapion v. Castro

United States District Court, D. Colorado

February 4, 2015

MELEAHA R. GLAPION, Plaintiff,
v.
JULIAN CASTRO, Secretary, U.S. Department of Housing and Urban Development, Defendant

Meleaha R. Glapion, Plaintiff, Pro se, Denver, CO.

For Julian Castro, Secretary, U.S. Department of Housing and Urban Development, Timothy Bart Jafek, U.S. Attorney's Office-Denver, Denver, CO.

ORDER ON MOTION TO DISMISS

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant's Motion to Dismiss Whistleblowing, Harmful-Procedural-Error, and Constitutional Claims Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [filed October 20, 2014; docket #51]. The motion is fully briefed, and the Court heard oral arguments on February 2, 2015. ( See docket #92.) For the reasons that follow, the Court grants the Motion to Dismiss.

BACKGROUND

Plaintiff, proceeding pro se, initiated this action on June 18, 2014. (Docket #1.) Plaintiff's claims arise from her employment as a Management Analyst for the Department of Housing and Urban Development (" HUD" ) and her removal from that position on March 30, 2012. She alleges that her supervisors disciplined her on the basis of her race, color, and sex, and in retaliation for making whistleblowing disclosures. Prior to filing the present action, Plaintiff challenged her removal and discipline through the Merit System Protection Board (" MSPB" ) and Equal Employment Opportunity (" EEO" ) procedures.

The operative pleading -- Plaintiff's Third Amended Title VII Complaint -- asserts eight claims for relief: (1) Title VII discrimination based on race, sex, and color; (2) Title VII hostile work environment; (3) Title VII retaliation; (4) retaliation for whistleblowing; (5) harmful procedural error; (6) constitutional rights violations; (7) Fair Labor Standards Act violation; and (8) Freedom of Information Act violation. Defendant's Motion to Dismiss seeks dismissal of the fourth, fifth, and sixth claims. Defendant argues that harmful-procedural-error claim and due-process constitutional claim are subject to dismissal on jurisdictional grounds, and the retaliation for whistleblowing and constitutional claims are subject to dismissal under Fed.R.Civ.P. 12(b)(6).

LEGAL STANDARDS

I. Dismissal under Fed.R.Civ.P. 12(b)(1)

Rule 12(b)(1) empowers a court to dismiss a complaint for " lack of subject matter jurisdiction." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction " must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A Rule 12(b)(1) motion to dismiss " must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction to hear his claims.

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted). The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the truthfulness of the Complaint's factual allegations.

II. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

" To 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, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow " the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two prong analysis. First, a court must identify " the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations " to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

Plausibility refers " to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). " The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

III. Treatment of a Pro Se Plaintiff's Complaint

A federal court must construe a pro se plaintiff's " pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, " if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 ...


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