United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
William Ray Baker, appearing pro se, filed this
action against the individual defendants. (Docket 1).
Plaintiff alleges some of these defendants have an
affiliation with Rapid City Regional Hospital. Id.
According to plaintiff, his lawsuit revolves around charges
he filed with the Equal Employment Opportunity Commission
(“EEOC”), and the grounds for his case include:
Title VII of the Civil Rights Act (“Title VII”);
the Americans with Disabilities Act (“ADA”); the
Genetic Information Nondiscrimination Act
(“GINA”); the Age Discrimination in Employment
Act (“ADEA”); and the Family and Medical Leave
Act (“FMLA”). Id.
support of his claims, plaintiff asserts the following facts
in his complaint and its attachments. He filed a charge of
discrimination with the EEOC on February 19, 2016.
Id. at p. 4. He received a “right to
sue” letter from the EEOC on February 19, 2016. (Docket
1-1). On March 26, 2017, he filed a charge with the EEOC
based on FMLA and ADA violations. (Docket 1-3). He received
another “right to sue” letter from the EEOC on
April 10, 2017. (Docket 1-2). Instead of tying particular
defendants with certain claims, plaintiff generally refers to
“defendants” and “co-defendants.”
(Docket 1 at p. 4). The complaint asserts it will be
supplemented later by an affidavit from plaintiff with the
title “The OSHA Story.” Id. The
complaint also includes general references to violations of
the ADA and other laws not specified. Id.
defendants who have been served filed motions to dismiss the
complaint. (Dockets 14 & 16). The court grants their
motions and dismisses the remaining defendants who have not
been served as the court ordered. (Docket 20).
Jennifer Van Anne and Comet Haraldson argue for dismissal
under Rules 12(b)(5) and 12(b)(6) of the Federal Rules of
Civil Procedure. (Docket 14). Defendants Maureen Henson,
Janel Brown, Trisina Weekley and Judith Warnke (collectively,
“Regional defendants”) assert plaintiff's
complaint should be dismissed based on Rules 12(b)(1) and
12(b)(6). (Docket 16). As explained below, the court grants
the motions to dismiss based on Rule 12(b)(6). Consequently,
the court does not address defendants' other bases for
submitted several filings in response to defendants'
motions, and they contain numerous factual assertions beyond
those alleged in his complaint. (Dockets 21, 21-1, 21-2 &
24). The additional facts in plaintiff's responses are
not properly before the court and the court will not consider
them in ruling on defendants' motions. See Fischer v.
Minneapolis Pub. Sch., 792 F.3d 985, 990 n.4 (8th Cir.
2015) (“But Fischer failed to include these claims in
his complaint, failed to file an amended complaint by the
deadline, and did not later petition to court to amend his
complaint. Accordingly, these claims were not properly before
the district court.”) (internal citations omitted);
Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868
F.2d 992, 995 (8th Cir. 1989) (“[I]t is axiomatic that
a complaint may not be amended by the briefs in opposition to
a motion to dismiss.”); Midland Farms, LLC v. U.S.
Dep't of Agric., 35 F.Supp.3d 1056, 1066 (D.S.D.
2014) (“Midland may not amend its Complaint through an
argument raised in a brief in opposition to a motion to
dismiss.”) (collecting cases).
Rule 12(b)(6), a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Two “working principles” underlie Rule
12(b)(6) analysis. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). First, courts are not required to accept as
true legal conclusions “couched as . . . factual
allegation[s]” in the complaint. See id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (quoting Twombly, 550
U.S. at 555) (internal quotation marks omitted). The court
does, however, “take the plaintiff's factual
allegations as true.” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). Second, the
plausibility standard is a “context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 678 (citation omitted). The complaint is analyzed
“as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.”
Braden, 588 F.3d at 594.
applying these principles, the court must construe
plaintiff's pro se complaint liberally. See
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This
means “that if the essence of an allegation is
discernible, even though it is not pleaded with legal nicety,
then the district court should construe the complaint in a
way that permits the layperson's claim to be considered
within the proper legal framework.” Jackson v.
Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal
quotation marks omitted). The complaint “still must
allege sufficient facts to support the claims
advanced.” Stone, 364 F.3d at 914.
Claims against Jacklyn Winters and Mary Bell
on the record to date, plaintiff has not completed service on
Winters and Bell. The court noted this in an earlier order,
where the court indicated plaintiff had until October 28,
2017, to complete service on Winters and Bell. (Docket 20 at
pp. 1-2). The order provided plaintiff with “clear
notice of his responsibility to serve all defendants”
under Rule 4 of the Federal Rules of Civil Procedure and
stated failure to do so may result in dismissal without
prejudice. Id. Because plaintiff failed to
adequately serve Winters and Bell or show good cause for the
failure, the court dismisses plaintiff's claims against
those defendants without prejudice. See Fed.R.Civ.P.
Title VII, ADA and ADEA
pursues Title VII, ADA and ADEA claims against individual