Opinion
Case No. 1:00CV1112
November 7, 2003
MEMORANDUM OPINION
The following motions are currently pending before this Court: Plaintiff's Amended Motion to Amend and Supplement the Complaint [Doc. #10], and Defendants' Motion to Dismiss pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure [Doc. #4]. Defendants allege the following grounds in support of their Motion to Dismiss the first cause of action (a federal claim pursuant to § 1983): (1) Plaintiff's claim is untimely; (2) Plaintiff has failed to state a justiciable claim; (3) the Defendants are not proper official-capacity parties for injunctive relief; and (4) the Defendants are protected by qualified immunity. Defendants move to dismiss Plaintiff's second and third causes of action (state law claims pursuant to the North Carolina Constitution) on the basis that the Eleventh Amendment bars their adjudication in this Court.
For the reasons set forth below, Plaintiff's Amended Motion to Amend and Supplement the Complaint will be GRANTED IN PART AND DENIED IN PART. Defendants' Motion to Dismiss the § 1983 claim will be GRANTED as to ground (3), and DENIED as to grounds (1), (2), and (4). Defendants' Motion to Dismiss the state law claims will be DENIED.
I.
The allegations of the Complaint, stated in the light most favorable to the Plaintiff, are as follows: Plaintiff Abul G. Azam is a resident of North Carolina and a native of Bangladesh. Dr. Azam has a Ph.D. in Economics from Duke University and was employed for a number of years as an Assistant Professor in the School of Business and Economics at North Carolina AT State University ("AT"). AT, a predominantly African-American university, is part of the University of North Carolina system.
The referenced complaint is Plaintiff's First Amended Complaint, filed in Guilford County Superior Court (00 CVS 10776), and attached to Defendants' Petition for Removal. [Doc. #1].
Defendants Edward B. Fort and Harold L. Martin ("the Defendants") were, at all times relevant to this action, employed as the Chancellor and Vice Chancellor, respectively, of AT. Both are African-American and residents of North Carolina.
In early 1997 Dr. Azam submitted an application for tenure and for an Associate Professor position at the AT School of Business and Economics. Both AT's Tenure and Promotions Committee and the senior faculty in Dr. Azam's department provided unanimous support for his application. However, AT's Dean ("the Dean"), rejected the application, claiming that Dr. Azam's scholarship was inadequate. The department chair initially supported Dr. Azam's tenure candidacy, but abandoned his position in order to accommodate the Dean.
Dr. Azam initiated appeal procedures through AT's internal grievance process. For use at his appeal hearing, Dr. Azam requested information from AT on the level of scholarship of the tenured faculty. AT refused this request on the grounds that the information was confidential. The hearing was held before a university grievance committee, which found that, in denying Dr. Azam's tenure application, the Dean acted with malice because of a previous grievance Dr. Azam had won against the Dean. Reviewing a 1994 report of the department chair, and more recent evaluations from senior faculty and the Tenure and Promotions Committee, the grievance committee found that Dr. Azam's scholarship clearly met or surpassed the standards at AT. As a result, the committee recommended that Dr. Azam's tenure package be reviewed by the Tenure and Promotions Committee without the negative comments from the Dean and department chair.
The Defendants supported the Dean and his opposition to Dr. Azam's tenure application, and made their position clear to Dr. Azam on several occasions. In a September 30, 1997 letter, Dr. Fort, a personal friend of the Dean, openly questioned the findings of the grievance committee, but did admit the tenure review was clouded. In this letter, Dr. Fort revealed a tenure review process for Dr. Azam that had been devised by Dr. Fort and Dr. Martin. The plan specified that Dr. Azam's application would be reviewed by a surrogate dean from outside of AT who would be blind to the standards applied to the other tenured faculty in AT's School of Business and Economics.
Dr. Azam objected to the plan on the grounds that he would be subject to a higher standard than had any African-American or other American-born faculty member who had attained tenure under AT's regular dean. The Defendants rejected Dr. Azam's objections and proceeded with the planned process.
Dr. Martin arranged for a surrogate dean to review Dr. Azam's application and then to meet with the department chair for discussion. However, Dr. Martin did not explain to the surrogate that the department chair now opposed Dr. Azam's application in order to accommodate the Dean. The surrogate, whose professional background is in accounting, not economics, admits that he relied heavily on the department chair's opinion in assessing and ultimately rejecting Dr. Azam's application. He received no information from the department's senior faculty or the Tenure and Promotions Committee in making the decision.
The American Association of Colleges and Schools of Business, an accrediting body, states that in determining tenure, the research of the applicant should be assessed to determine if it is relevant to the mission of the school. The surrogate was supposed to follow these standards in reviewing Dr. Azam's application. However, the Defendants intentionally did not give the surrogate the necessary information to understand the mission of the relevant AT department. Specifically, AT has a multi-disciplinary Transportation Institute, and Dr. Azam was applying for tenure in the "Department of Economics and Transportation/ Logistics." Nearly every faculty member in the Department is a member of the Institute. Not knowing these facts, the surrogate questioned the value of Dr. Azam's research because it applied economic theories to the transportation section and had been published in journals of transportation economics.
Dr. Azam appealed the surrogate's decision to Dr. Martin. Dr. Martin supported the decision of the surrogate, despite his knowledge that Dr. Azam's scholarship exceeded that of every African-American faculty member at the time each had applied for tenure under the Dean in at least the ten years preceding.
Dr. Azam then again appealed through the university grievance procedure. In preparation for his hearing in front of the grievance committee he obtained a court order directing AT to produce information on the scholarship of tenured faculty in the School of Business and Economics. Those records show that Dr. Azam's level of scholarship exceeded that presented by any African-American or any other American-born faculty member at the time the individual applied for and received tenure in the preceding ten years. Dr. Azam's scholarship also exceeded the current scholarship of many of the tenured faculty at the time of Dr. Azam's application.
Prior to the grievance hearing, the university attorney and the university administration removed every individual on the grievance committee who had supported Dr. Azam's application in his previous grievance hearing. The attorney advised the new co-chairs of the grievance committee that Dr. Azam's counsel should not be allowed to actively represent Dr. Azam at the hearing.
The grievance hearing was held in March 1998, a point in time at which Dr. Fort was serving as Chancellor Emeritus and no longer was the Chancellor of AT, and Dr. Martin was the Chancellor at Winston-Salem State University and no longer the Vice Chancellor at AT. Dr. Martin testified at the hearing and defended the surrogate process. When Dr. Azam finally convinced the committee to allow his counsel to participate by providing evidence of discrimination, AT's attorney then instructed the committee it had no authority to consider the discrimination claim. When Dr. Azam's counsel attempted to cross-examine the surrogate about his review of the application, Dr. Martin objected, stating that Dr. Azam did not have the right to interrogate the surrogate at the hearing. Ultimately, the grievance committee upheld the surrogate's decision and Dr. Azam appealed the matter to the AT Board of Trustees.
Dr. Azam filed a complaint against Dr. Fort and Dr. Martin in Guilford County Superior Court on September 29, 2000. Dr. Azam then filed a First Amended Complaint in Superior Court on October 5, 2000. Defendants removed to this Court on November 3, 2000. [Doc. #1]. The Complaint alleges three causes of action, the first pursuant to 42 U.S.C. § 1983, and the other two pursuant to the North Carolina state constitution. Both defendants are sued in their individual and official capacities under federal law, and in their official capacity under state law.
Case number: 00 CVS 10776
As to Dr. Azam's § 1983 claim, the Complaint alleges that the Defendants' actions in establishing the surrogate review process were taken under color of state law, and denied him equal protection under the law as guaranteed by the Fourteenth Amendment of the United States Constitution. Specifically, the Complaint alleges that the Defendants created and defended a review process that applied more exacting standards to Dr. Azam's tenure application than to those of his African-American and American-born colleagues, and that this was done intentionally for the purpose of denying Dr. Azam tenure on the basis of his race and/or national origin. As relief, Dr. Azam requests compensatory damages in excess of $10,000 from the Defendants in their individual capacities, and equitable relief from the Defendants in their official capacities.
As to Dr. Azam's state law claims, the Complaint alleges that the Defendants' actions denied him equal protection under the law, as guaranteed by Article I, § 19 of the North Carolina Constitution. As relief, Dr. Azam requests compensatory damages in excess of $10,000 from the Defendants in their official capacities, and injunctive relief.
Without answering the complaint, on December 7, 2000, Defendants timely filed a Motion to Dismiss the Complaint, pursuant to Rules 12(b)(1) (lack of subject matter jurisdiction), 12(b)(2) (lack of personal jurisdiction), and 12(b)(6) (failure to state a claim) of the Federal Rules of Civil Procedure [Doc. #4].
While lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) is stated as a ground for Defendants' Motion to Dismiss, it is not addressed in Defendants' briefs. The defense is, therefore, waived.
II.
Dr. Azam's Amended Motion to Amend and Supplement the Complaint [Doc. #11] requests leave of this Court: (1) to substitute the present Chancellor of AT, Dr. James C. Renick, for Defendant Fort on the official-capacity claim pursuant to Federal Rule of Civil Procedure 25(d); (2) to add Dr. Renick as a party-defendant in both his individual and official capacities pursuant to Rules 15, 17, 19, and 21; (3) to amend the Complaint to set out additional facts pursuant to Rule 15(a); (4) to serve a supplemental pleading on the Defendants pursuant to Rule 15(d); (5) to amend the first cause of action pursuant to Rule 15(a); (6) to correct a clerical error in the Complaint pursuant to Rule 15(a); and (7) to add a fourth cause of action pursuant to Rules 15(a) and 18(a).
It is undisputed that Defendants Fort and Martin no longer serve as Chancellor and Vice Chancellor of AT, and that they did not so serve even at the time of filing. This is shown by the language of the Complaint which references Defendants' new positions: "At a grievance hearing . . . with the Defendant Fort now serving as Chancellor Emeritus and the Defendant Martin as Chancellor at Winston-Salem State University, plaintiff attempted to show. . . ." [Doc. #1 ¶ 25].
As to Dr. Azam's first request, Dr. Renick cannot be substituted as a party for the official capacity claims under Rule 25(d). Federal Rule of Civil Procedure 25(d)(1) states that, "[w]hen a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party" Plaintiff argues that application of Rule 25(d)(1) allows substitution of the current Chancellor and Vice Chancellor of AT into the suit for purposes of injunctive relief. However, Rule 25(d) applies when the initial party holds the relevant public office at the time of suit and then ceases to hold that office at a point when the suit is still pending. Rule 25(d) is therefore not applicable to the present situation, where Dr. Fort and Dr. Martin did not hold the relevant offices at the time the suit was filed. Therefore, Dr. Azam's request for leave of Court to make this substitution will be DENIED.
However, following a liberal doctrine of pleading, Dr. Azam's remaining six requests should be allowed. Therefore, Dr. Azam's request for leave of Court to make changes (2) through (7), detailed above, will be GRANTED.
III.
Defendants request that the Court dismiss Plaintiff's claim pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction; they can hear only cases authorized by the Constitution or by statute.See U.S. Const. Art. 3 § 2; 28 U.S.C. § 1330-1368 (West Supp. 2003). Unless the case involves specialized issues such as admiralty and patents, a federal district court typically will have jurisdiction only if the requirements of 28 U.S.C. § 1331 (federal question) or 28 U.S.C. § 1332 (diversity of citizenship) are satisfied. In this case, the Complaint alleges that all parties are citizens of North Carolina. As there is no diversity of citizenship, federal question is the only potential grounds for proper federal subject matter jurisdiction.
Title 28 U.S.C. § 1331 provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (West Supp. 2003). The Supreme Court has explained that "Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law" Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2855-56, 77 L Ed.2d 420, 442 (1983).
There are two different ways to challenge subject matter jurisdiction based on federal question. Adams v. Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). One, the movant may contend that the complaint fails to allege facts upon which jurisdiction can be based, in which case, the facts alleged in the complaint are assumed to be true and the analysis is parallel to that under a Rule 12(b)(6) motion. Id. Two, the movant may contest the factual basis for jurisdiction, alleging that the jurisdictional facts alleged in the complaint are not true. id. In such a case, the plaintiff has the burden of proving jurisdiction, and the court may go beyond the face of the complaint and consider evidence without converting the motion into one for summary judgment. Id.; see also Richmond, Fredericksburg Potomac R. Co. v. U.S., 945 F.2d 765r 768 (4th Cir. 1991). Considering evidence beyond the face of the complaint can pose a problem when "the jurisdictional facts are intertwined with the facts central to the merits of the dispute" Adams, 697 F.2d at 1219. In such cases, the factual dispute is most "appropriately resolved only by a proceeding on the merits." id. Specifically, when a motion to dismiss is brought pursuant to both Rules 12(b)(1) and 12(b)(6) and subject matter jurisdiction is arguably lacking, the best practice is for the trial court to assume jurisdiction exists and proceed to a determination on the merits under Rule 12(b)(6).
Here, Defendants have challenged the factual basis for jurisdiction, and the jurisdictional allegations are intertwined with the facts alleged to show a § 1983 violation. Hence, Defendants' Motion to Dismiss is considered under Rule 12(b)(6).
IV.
A Rule 12(b)(6) motion should be granted only if, after accepting all well-pleaded allegations in the complaint as true, it appears certain that the plaintiff cannot prove any set of facts in support of his claims that entitles him to relief. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). The complaint should not be dismissed unless it is certain that the plaintiff is not entitled to relief under any legal theory that might plausibly be suggested by the facts alleged.Mylan Labs, Inc. v, Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Fourth Circuit has stated that "[u]nder the liberal rules of federal pleading, a complaint should survive a motion to dismiss if it sets out facts sufficient for the court to infer that all the required elements of the cause of action are present." Wolman v. Tose. 467 F.2d 29, 33 n. 5 (4th Cir. 1972).V.
The Defendants allege several grounds in support of their Motion to Dismiss the § 1983 claim, specifically that: (1) Dr. Azam's claim is untimely; (2) Dr. Azam has failed to state a justiciable claim; (3) Dr. Martin and Dr. Fort are not proper official-capacity defendants for injunctive relief; and (4) the Defendants are protected by qualified immunity, and therefore cannot be held liable in their individual capacities under § 1983. Each argument is addressed in turn below.1.
Defendant's Motion to Dismiss on statute of limitation grounds will be DENIED. There is no federal statute of limitations for actions brought pursuant to 42 U.S.C. § 1983; and therefore, courts look to the analogous state statute of limitation. Nat'l Adver. Co. v. City of Raleigh. 947 F.2d 1158, 1161 (4th Cir. 1991). The analogous limitations period for § 1983 actions is three years, the period for personal injury actions under Gen. Stat. N.C. § 1-52(5). Id. at 1161-62. A plaintiff has the burden of establishing that his cause of action falls within the applicable statutory limitations period. Am. Hotel Mgmt. Assoc. v. Jones, 768 F.2d 562, 569 (4th Cir. 1985).
In employment discrimination cases, the statutory period begins to run when the plaintiff receives notice of the allegedly unlawful act or decision, not when the plaintiff first feels the effects of that decision. Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L Ed.2d 6, 9 (1981) ("the proper focus is on the time of thediscriminatory act, not the point at which theconsequences of the act become painful") (emphasis added). Additional subsequent factors, such as continuity of employment or pending grievance procedures, do not toll the running of the relevant statutory period, id.; Del. State Coll. v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 506, 66 L.Ed.2d 431, 441-42 (1980).
Here, Defendants claim that the alleged discriminatory act in question is the denial of Dr. Azam's tenure, and that Dr. Azam's Complaint should be dismissed as untimely, because it was filed six years after the tenure denial. Dr. Azam claims that the discriminatory act in question is not the tenure denial, but specifically, "independent acts of discrimination by other individuals, subsequent to the Dean's recommendation against tenure in 1997." (PL's Resp. Mot. Dismiss at 4.) These independent acts, namely Defendants' implementation of a surrogate tenure review process, occurred less than three years before filing. Taking Dr. Azam's allegations as true, the implementation of a discriminatory review process (acts that occurred within the statutory period) could form the basis for a claim under § 1983. Therefore, because Defendants cannot show that Dr. Azam is unable to prove any set of facts in support of a claim based on the review process, Defendants' Motion to Dismiss on statute of limitation grounds will be DENIED.
2.
Defendants' Motion to Dismiss on the grounds that Dr. Azam has failed to state a justiciable claim also will be DENIED. Defendants claim that a challenge to a tenure denial, brought as a § 1983 claim, is not justiciable in federal court where the plaintiff's basis for relief hinges upon a comparison of his scholarship and the scholarship of his colleagues who were granted tenure. As support for this contention, Defendants cite two Fourth Circuit cases,Clark v. Whiting, 607 F.2d 634 (4th Cir. 1979), andJimenez v. Mary Washington Coll., 57 F.3d 369 (4th Cir. 1995).
In Clark, the plaintiff brought an equal protection claim under § 1983 based upon defendant university's application of unfair tenure review standards. The Fourth Circuit refused to "embark upon a comparative inquiry under an equal protection claim into either the quality or quantity of the published scholarly contributions of the University's faculty members who have been granted or denied promotion"Id. at 640-41. The court stated that "the determination of such matters by the appropriate University authorities is not reviewable in federal court on any ground other than racial or sex discrimination or a First Amendment violation." Id.
In Jimenez, the terminated plaintiff brought a race and national origin discrimination claim against his former university employer. Justiciability was not the issue. Instead, the Fourth Circuit was reviewing the district court's holding in favor of the plaintiff. The Fourth Circuit overturned the district court, finding that the defendant university had presented a legitimate, non-discriminatory reason to justify its action. The defendant's reason was that the plaintiff did not have a Ph.D. and had not produced any scholarly work, and therefore lacked the basic requisites for tenure. Id. at 383-84, The court was unwilling to consider comparative evidence because the plaintiff could not show initially that he possessed even the basic qualifications of tenure, and a university is free to set its own tenure requirements. Id. at 383.
The dispute in the case at hand is distinguished from Clark and Jimenez, and is justiciable in a federal court. Here, unlike in Clark, the plaintiff is not simply alleging that the tenure review process was unfair and inconsistently applied. Instead, Dr. Azam has alleged racial discrimination, a situation specifically exempted from the Clark court's prohibition against consideration of comparative evidence. See Clark, 607 F.2d at 640-41. In addition, Jimenez, a case addressing the merits of the underlying discrimination claim, is not controlling. Not only was justiciability not the relevant inquiry there, but here there is no claim that Dr. Azam has failed to meet the basic tenure requirements.
In short, an allegation of racial discrimination does provide a basis for judicial review of a university's tenure decision, even if the basis for the alleged discrimination hinges on a comparison of the scholarly achievements of the plaintiff and his colleagues. See Smith v. Univ. of N.C., 632 F.2d 316, 345-46 n. 26 (4th Cir. 1980). Defendants' Motion to Dismiss on the grounds that Dr. Azam has failed to state a justiciable claim will be DENIED.
3.
Defendants' Motion to Dismiss the claims for injunctive relief against them in their official capacities will be GRANTED. Official-capacity defendants can be liable for injunctive relief under § 1983.Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 So. Ct. 2304, 2312, 105 L.Ed.2d 45, 58 (1989). However, Defendants no longer serve in the official capacity in which they have been sued, nor did they so serve at the time the Complaint was filed. As such, they would have no authority to implement the requested injunctive relief if granted. Therefore, Defendants' Motion to Dismiss the claims for injunctive relief against Dr. Fort and Dr. Martin will be GRANTED.4.
Defendants' Motion to Dismiss on grounds that both defendants are protected by qualified immunity will be DENIED. "A state official may be liable in his individual capacity under § 1983 for acts taken under color of state law, even if those acts are performed within the scope of the official's authority." Howard v. Food Lion, 232 F. Supp.2d 585, 593 (M.D.N.C. 2002) (citing Hafer v. Melo. 502 U.S. 21, 31, 112 S.Ct. 358, 363, 116 L.Ed.2d 301, 313 (1991)). However, qualified immunity protects government officials from liability under § 1983 so long as the conduct of the official "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982). Specifically, if a complaint's allegations against a public official fail to state a violation of a clearly-established law, the claim can be dismissed on qualified immunity grounds. Korb v. Lehman, 919 F.2d 243, 246-47 (4th Cir. 1990).
Here, Plaintiff has alleged that Defendants designed a discriminatory review process that ultimately denied his tenure application based on the impermissible considerations of race and national origin. The right to be free from intentional discrimination based on race and national origin from public employers is well-established under § 1983. The allegations of Plaintiff's Complaint state just such a violation, and a more in-depth analysis of qualified immunity is not needed under the Rule 12(b)(6) standard. The allegations of the Complaint do not mandate a finding of qualified immunity. Therefore, Defendants' Motion to Dismiss the individual-capacity claims on qualified immunity grounds will be DENIED.
VI.
Defendants' Motion to Dismiss Dr. Azam's state law claims will be DENIED. Defendants argue that the Plaintiff's state claims under the North Carolina Constitution should be dismissed because their adjudication is barred in this Court by the Eleventh Amendment. However, the Eleventh Amendment does not bar this Court from hearing the state law claims in this case.
The Eleventh Amendment provides that the "Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the . . . States by citizens of another State." This amendment has been interpreted also to apply to suits against a state by a citizen of that state. Hans v. La., 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Eleventh Amendment immunity is not absolute, and it has long been accepted that when a state "voluntarily becomes a party to a cause and submits its rights for determination." it waives any Eleventh Amendment protection. Gunter v. Atl. Coast Line R. Co., 200 U.S. 273, 284, 26 S. Ct 252, 256, 50 L.Ed. 477 (1906). Specifically, when a state is a sued on a state-law claim in its own courts, it waives Eleventh Amendment immunity if it removes that claim to federal court. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 624, 122 S.Ct. 1640, 1646, 152 L.Ed.2d 806, 816 (2002). The Lapides holding, however, is limited to state-law claims for which the state has explicitly waived sovereign immunity from state-court proceedings. Id. at 617-18.
The Supreme Court of North Carolina has held that sovereign immunity does not bar direct state constitutional claims against the state and its agents. Corum v. Univ. of N.C., 330 N.C. 761, 785-86, 413 S.E.2d 276, 291 (1992). In effect, the state constitution itself acts as a waiver of sovereign immunity. See id.
Here, Dr. Azam originally filed suit in North Carolina state court, bringing two causes of action against the Defendants in their official capacity pursuant to the North Carolina Constitution. Defendants then voluntarily removed to federal court. As sovereign immunity does not apply to North Carolina state constitutional claims, Lapides governs, and Defendants' removal waived their Eleventh Amendment immunity. Therefore, the Eleventh Amendment does not bar adjudication of Dr. Azam's state law claims in this Court, and Defendants' Motion to Dismiss the state law claims will be DENIED.
VII.
In summary, Defendants' Motion to Dismiss will be GRANTED with respect to the § 1983 claims against the Defendants in their official capacities. Defendants' Motion to Dismiss otherwise will be DENIED. All portions of Plaintiff's Motion to Amend will be GRANTED, except for the request to substitute Dr. Renick for Defendant Fort, which will be DENIED.
ORDER
For the reasons set forth in a contemporaneously filed Memorandum Opinion, the Plaintiff's Amended Motion to Amend and Supplement the Complaint [Doc. #10] is GRANTED IN PART AND DENIED IN PART. Defendants' Motion to Dismiss [Doc. #4] is GRANTED IN PART AND DENIED IN PART.