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No. 5:17-CV-23-H (E.D.N.C. Aug. 16, 2018)

No. 5:17-CV-23-H


MARILYNN McRAE, Plaintiff, v. SHERIFF DONNIE HARRISON, in his official capacity, Defendant.


This case is before the court on Defendant's motion to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(1), (6) [DE #17]. Plaintiff has responded [DE #23], and in reply to Plaintiff's response in opposition, Defendant has moved to strike [DE #24]. These matters were referred to the undersigned for appropriate disposition by Senior United States District Judge Malcolm J. Howard.


Plaintiff filed this pro se action against Defendant and other employees of Defendant, asserting violations of Title VII of the Civil Rights Act of 1964 (Title VII) and of the Americans with Disabilities Act (ADA). Upon reviewing the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the court dismissed the Title VII claims in their entirety, dismissed the ADA claims against Defendant's employees, and permitted Plaintiff's ADA claims to move forward against Defendant in his official capacity. (Order 11/7/2017 [DE #6].)

Defendant employed Plaintiff from September 3, 2003, through December 19, 2014, at which time Defendant terminated Plaintiff's employment. (Compl. [DE #5] at 4.) Plaintiff has alleged that Defendant violated the ADA by wrongfully terminating her, subjecting her to a hostile work environment, and retaliating against her. Defendant has moved to dismiss each of Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(1) & (6). (Def.'s Mot. Dismiss [DE #17].) The facts below are presented in the light most favorable to Plaintiff, see Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009), and are based upon the allegations contained in her complaint and her response to Defendant's motion which, for the reasons set forth below, the court liberally construes as a motion to amend her complaint.

In January 2010, Plaintiff, a detention officer employed by Defendant Sheriff Harrison, began having problems with osteoarthritis in her knees, which was initially treated with cortisone injections but eventually led to surgery in January 2015. (Resp. Opp. [DE #23] at 2, 4.) In July 2013, Plaintiff's doctor placed her on a restricted work schedule limiting Plaintiff to eight-hour work shifts, forty hours per week, with restrictions on Plaintiff's ability to stand, walk, squat, and climb stairs. (Id. at 2, 3.) This constituted "light duty" for purposes of Plaintiff's employment with Defendant. On July 19, 2013, Defendant issued a new light-duty work policy which required all detention officers on light-duty status to work twelve-hour shifts. (Attachment 2013 Evidentiary [DE #23-1] at 1-2.) Plaintiff, pursuant to her doctor's orders, informed her supervisor, an Assistant Director to Defendant, that she could not work twelve-hour shifts. (Id. at 2.) The Assistant Director advised Plaintiff that the light-duty policy requiring twelve-hour shifts would not change. (Id.) At various dates throughout 2013 and 2014, following implementation of the new light-duty policy, Plaintiff applied for jobs with Defendant that required eight-hour shifts. (Id. at 3.) Plaintiff was not offered any of these jobs. (Id.)

After her medical restriction in July 2013, Plaintiff worked some partial twelve-hour shifts but was forced to use various forms of leave time to make up the four-hour difference that she could not work (i.e., Plaintiff would work eight hours of a twelve-hour shift and then use some form of leave time for the remaining hours). At various points from the implementation of Defendant's twelve-hour light-duty policy up until the date of Plaintiff's termination, Plaintiff was told by her supervisors that the twelve-hour light-duty policy would not be changed. Eventually, Plaintiff's supervisors advised her that if she could not work a twelve-hour shift, then she should not report to work. (Resp. Opp. at 4.) Defendant terminated Plaintiff in December 2014 after learning that Plaintiff was scheduled to undergo knee surgery in January 2015 and would consequently be unable to work for some sustained period of time post-operation. (Id.)

Plaintiff has alleged that some of her Family and Medical Leave Act (FMLA) time was backdated against her wishes and in retaliation for engaging in protected conduct under the ADA. (Resp. Opp. at 4; Attachment 2014 Evidentiary [DE #23-1] at 4.)

Plaintiff filed complaints with the EEOC on February 18, 2014, and June 9, 2014. (Resp. Opp. at 4.) Right-to-sue letters were mailed on October 17, 2016. (Right-to-Sue Letters [DE ##1-2, 1-3].) Plaintiff filed the instant lawsuit on January 13, 2017.


I. Rule 12(b)(6) Standard

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint or any claims contained therein that fail to state a claim upon which relief may be granted. The intent of Rule 12(b)(6) is to test the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (all reasonable inferences drawn in favor of plaintiff). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

In order to survive a 12(b)(6) motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 544 (2007). A complaint need not contain detailed factual allegations, but it must give a defendant fair notice of what the claim is and the grounds upon which it rests. Id. at 555. A "formulaic recitation of the elements of a cause of action will not do." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations," which are sufficient to raise a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Facial plausibility is more than "a sheer possibility that a defendant has acted unlawfully." Id. at 678. It requires the plaintiff to articulate facts "that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In the employment discrimination context, a plaintiff is not required to plead a prima facie case of discrimination to survive a 12(b)(6) motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (explaining Iqbal, Twombly, and Swierkiewicz).

II. Plaintiff's Pleading and Defendant's Motion to Strike

Plaintiff filed a written response in opposition to Defendant's motion to dismiss. (Pl.'s Resp. Opp. [DE #23].) This document contains seven pages of argument and factual allegations, and over one hundred pages of various documents attached as exhibits (Exhibits 1-12 [DE #23-1 through #23-12].) Defendant has moved to strike Plaintiff's response on the ground it contains information outside the pleadings and is an improper response to the 12(b)(6) motion to dismiss.

The Fourth Circuit has recently reiterated that liberal construal of pro se complaints and pleadings is "particularly appropriate" when a pro se litigant raises civil rights issues. Alley v. Yadkin Cty. Sheriff Dep't, 698 F. App'x 141, 142 (4th Cir. 2017) (per curiam) (unpublished) (citing Erickson, 551 U.S. at 94, and Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017)). The Fourth Circuit further advised:

"[C]laims of legal substance should not be forfeited because of a failure to state them with technical precision," and where a claim is potentially cognizable, the plaintiff should be afforded an opportunity to amend his complaint or particularize his allegations. Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir. 1965). Although a district court "is not required to act as an advocate for a pro se litigant," where the litigant "has alleged a cause of action which may be meritorious against a person or persons unknown, the district court should afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court." Gordon v. Leeke, 574 F.2d 1147, 1152-53 (4th Cir. 1978). Accordingly, even when a plaintiff fails to allege sufficient facts against a particular defendant to survive a Rule 12(b)(6) motion, where "the district court neither gave [the plaintiff] the opportunity to amend nor did it engage in any discussion as to why amendment would be futile," the dismissal "should generally be without prejudice." King v. Rubenstein, 825 F.3d 206, 225 (4th Cir. 2016).

, 698 F. App'x at 142-43 (alterations in original). While Alley is not binding precedent and dealt specifically with a pro se litigant's failure to name the appropriate party as a defendant, it underscores the district courts' duty to exercise "special judicial solicitude" when addressing a pro se litigant's civil rights claims. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390 (4th Cir. 1990). Nevertheless, "[e]very party—pro se or otherwise—must comply with the Federal Rules of Civil Procedure." Tagirova v. Elizabeth City State University, No. 2:16-CV-70-D, 2017 WL 4019516, at *4 (E.D.N.C. Sept. 11, 2017) (citing Iqbal, 556 U.S. at 678-79, and Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam)).

"Generally, when evaluating a motion to dismiss for failure to state a claim upon which relief can be granted, a court may not consider documents outside the complaint that are not expressly incorporated therein." Tagirova, 2017 WL 4019516, at *4. If, however, attached documents are integral to the complaint, explicitly relied on, and authentic, they may be considered. Id. Moreover, courts have held that it is appropriate to consider factual allegations contained in a plaintiff's response in opposition to a motion to dismiss where the allegations are consistent with those set forth in the complaint. See, e.g., Rush v. Am. Home Mortgage, Inc., No. WMN-07-CV-0854, 2009 WL 4728971, at *3 (D. Md. Dec. 3, 2009); Donahue v. U.S. Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) (discussing "[t]he court's duty to adopt a generous attitude when evaluating a pro se complaint" on a motion to dismiss), abrogated on other grounds by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)).

Here, Plaintiff has not moved to amend her complaint pursuant to Rule 15. However, her response in opposition to Defendant's motion to dismiss contains additional factual allegations that respond to Defendant's general argument (Def.'s Mem. Supp. Mot. Dismiss [DE #20] at 11-16) that the complaint lacks sufficient specificity to put him on notice of Plaintiff's allegations. These allegations are consistent with the allegations contained in her original complaint. Furthermore, Plaintiff's response was filed within the time allowed for amending her complaint as a matter of course. See Fed. R. Civ. P. 15(a)(2) (allowing a plaintiff to amend her complaint once as a matter of course within twenty-one days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier). Defendant filed and served its answer to Plaintiff's complaint on January 16, 2018, and its motion to dismiss and supporting memorandum on January 17 and 30, 2018, respectively. Plaintiff's response was filed on February 1, 2018, within twenty-one days of each of Defendant's filings. Thus, Plaintiff had an absolute right to amend her complaint, even if such amendment would be futile. See Baker v. Naco-Lake Royale Resorts, No. 5:09-CV-518-FL, 2010 WL 2837005, at *1 (E.D.N.C. July 19, 2010) (construing former version of Rule 15(a)).

Given Plaintiff's status as a pro se litigant and the court's duty to adopt a generous attitude in evaluating her pleadings, the court construes Plaintiff's response in opposition to Defendant's motion to dismiss as a supplement to her complaint and the two filings, together, as her amended complaint. Because Defendant's motion to dismiss is directed at Plaintiff's original pleading, it is rendered moot and must, therefore, be dismissed. See Young v. City of Mt. Ranier, 238 F.3d 567, 573 (4th Cir. 2001) ("[A]n amended pleading supersedes the original pleading, rendering the original pleading of no effect."); Lucas v. Brake, No. 5:12-CV-735-FL, 2013 WL 3197073, at *1, 4 (E.D.N.C. June 21, 2013) (motion to dismiss original complaint rendered moot upon amendment of complaint).

As Defendant's motion is moot, the court expresses no opinion as to the merits of Defendant's arguments in support of its motion to dismiss. --------

Still outstanding is Defendant's motion to strike Plaintiff's opposition to Defendant's motion to dismiss as an improper response or, in the alternative, to seal the response. Because Plaintiff's response has been construed as a supplement to her complaint, Defendant's motion to strike is denied.

In support of his motion to seal, Defendant argues that attachments to Plaintiff's response contain personnel information made confidential by N.C. Gen. Stat. § 153A-98 and information the public disclosure of which is prohibited by N.C. Gen. Stat. § 132-1.7. (Def.'s Mem. Supp. Mot. Strike [DE #25] at 3.) Defendant contends that "it is impossible to know whether [Plaintiff] has left compromised information unredacted." (Id.)

Having reviewed the documents in question, the court discerns no apparent disclosure of employee personnel records that would violate N.C. Gen. Stat. § 153A-98, aside from Plaintiff's own employee personnel records. At first blush, these documents appear to disclose, at most, the names of other persons employed by Defendant; their 2013 duty assignments; and their hire, promotion, or retirement dates. (See Ex. 9 [DE #23-6].) It is also not clear from Defendant's briefing that this information is part of the other employees' personnel files such that N.C. Gen. Stat. § 153A-98(c) would apply.

As to N.C. Gen. Stat. § 132-1.7, which governs public disclosure of sensitive public security information, Defendant offers no reason why Plaintiff's inclusion of her own work schedule and other employees' generic duty assignments and work schedules from 2013 comprises "specific security information or detailed plans, patterns, or practices associated with prison operations." N.C. Gen. Stat. § 132-1.7 (a1). Subsection (b1) of this statute does prohibit disclosure of government-issued mobile telephone numbers issued to sworn law enforcement officers. In attaching emails between herself and her supervisors and Human Resources representatives, Plaintiff did not redact the email "signature" from all of these employees, thereby including mobile telephone numbers for certain employees. Defendant's argument as to these mobile telephone numbers has merit. However, Defendant's general claim that it is impossible to know whether Plaintiff's attachments contain non-public information is not creditable; Defendant is in the best position to review the attachments and identify with particularity any sensitive information.

Furthermore, Defendant's concerns must be balanced against the public's right of access to the documents. See Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir. 1988.) To determine whether records should be sealed, this court must follow the procedure established in In re Knight Publ'g Co., 743 F.2d 231 (4th Cir. 1984). First, the court must provide public notice of the request to seal and allow interested parties a reasonable opportunity to object. Id. at 235-36. Notice is sufficient where a motion is docketed reasonably in advance of its disposition. Id. at 235. Second, the court considers less drastic alternatives, such as redaction of any sensitive material. Id. at 235-36. Then, if the court determines that public access should be denied, the court must provide specific reasons and factual findings supporting the decision to seal. Id.

Here, Defendant seeks to seal the entirety of Plaintiff's response in opposition to Defendant's motion to dismiss but fails to identify with specificity which portions of that filing "risk[] the security and operations of the Sheriff, or . . . compromise[] confidential information of other employees." (Def.'s Mem. Supp. Mot. Strike at 3.) The motion to seal was filed on February 15, 2018, and it was accessible to the public on the court's computerized case management and case filing system until it was temporarily sealed on March 23, 2018. Thus, the public has been provided with notice and an opportunity to object to Defendant's motion. See Knight, 743 F.2d at 234 (noting that the Third Circuit found notice sufficient where a motion was docketed reasonably in advance of its disposition); see also Oliver v. Williams, No. 5:09-CT-3027-H, 2010 WL 2927456, at *1 (E.D.N.C. July 21, 2010).

As a general matter, "[t]he right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment." Virginia Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004) (citing Stone, 855 F.2d at 180). The common law right of access applies to all judicial records but "does not afford as much substantive protection to the interests of the press and the public as does the First Amendment." Id. (quoting Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (4th Cir. 1988)). To overcome the common law right of access, the party seeking to seal the documents bears the burden to show that "countervailing interests heavily outweigh the public interests in access." Id. (quoting Rushford, 846 F.2d at 253). In contrast, if the First Amendment right of access applies, the court can only seal the documents because of a compelling governmental interest, and the restriction must be narrowly tailored to serve that governmental interest. Id.

Plaintiff's response, construed by the court as a supplement to her pleading, is certainly a judicial record to which a presumption of public access applies. For the reasons described above, Defendant has not shown that countervailing interests heavily outweigh the public interest in access to these documents. See Rushford, 846 F.2d at 253 (stating standard for common law right of access). Furthermore, Defendant has not adequately demonstrated there are no alternatives to sealing Plaintiff's filing in its entirety, such as redaction of the purportedly confidential information. Thus, as the matter currently stands, Defendant has not met even the lower burden of overcoming the common law right of access to judicial records.

Nevertheless, the court is mindful of the unique circumstances posed by Plaintiff's pro se status and the court's decision to liberally construe her response as a supplement to her complaint. Therefore, the court orders that Plaintiff's response in opposition shall continue to be provisionally sealed, with Defendant given fourteen days to file a renewed motion to seal.


For the foregoing reasons, the court ORDERS as follows:

1. Plaintiff's response to Defendant's motion to dismiss is hereby construed as a supplement to her complaint;

2. The clerk is directed to file as an amended complaint Plaintiff's original complaint [DE #5], together with Plaintiff's Opposition to Defendant's Motion to Dismiss (including all attachments) [DE #23];

3. Defendant shall have fourteen (14) days from the date of this order to respond to the amended complaint;

4. Defendant's motion to strike, or alternatively to seal, Plaintiff's Opposition to Defendant's Motion to Dismiss [DE #24] is DENIED WITHOUT PREJUDICE to his right to renew the request to seal portions of Plaintiff's response in opposition (and amended complaint). Defendant shall have fourteen (14) days from the date of this order to file a renewed motion to seal augmenting his arguments with specificity; and

5. The clerk is directed to maintain Plaintiff's Opposition to Defendant's Motion to Dismiss (at both its original docket entry and its new docket entry as part of Plaintiff's amended complaint) under provisional seal until such time as (i) the court has ruled on any renewed motion to seal, or (ii) the time allowed for filing a renewed motion to seal has expired without Defendant having filed such a motion, in which event the clerk shall make the documents part of the public record without further order of the court.

IT IS FURTHER RECOMMENDED that Defendant's Motion to Dismiss [DE #17] be DISMISSED AS MOOT in light of the amendment of Plaintiff's complaint.

IT IS DIRECTED that a copy of this Order and Memorandum & Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 31, 2018, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Dec. 2017).

A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

This 16th day of August 2018.



United States Magistrate Judge