United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
Plaintiff Jerry Russell, a security officer at the Bellefontaine Habilitation Center ("Bellefontaine"), operated by the Missouri Department of Mental Health, brings this action against the following current and former employees at Bellefontaine: Rebecca Post, Marcy Hargis, Laura Wayer, Charles Edward Moody, and Barbara Dahlen. (Doc. No. 13.) Plaintiff's amended complaint asserts claims of retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), § 701 et seq., 42 U.S.C.A. § 2000e, et seq. and deprivation of various constitutional rights, presumably under 42 U.S.C. § 1983. Defendants Moody and Dahlen have never been served in this case. Defendants Post, Hargis, and Wayer waived service but have moved to dismiss certain of Plaintiff's claims against them. (Doc. No. 26.) For the reasons set forth below, Plaintiff's claims against Defendants Moody and Dahlen shall be dismissed without prejudice for failure to timely serve these Defendants; Plaintiff's retaliation claims against all parties shall be dismissed without prejudice for failure to name the proper party; and Plaintiff's § 1983 claims for deprivation of constitutional rights against Defendants Post, Hargis, and Wayer shall be dismissed with prejudice for failure to state a claim.
Plaintiff filed his original complaint on October 12, 2012, asserting employment discrimination and retaliation under Title VII, solely against Bellefontaine. (Doc. No. 1.) On March 1, 2013, the Court granted Bellefontaine's motion to consolidate this case with another case, No. 4:13CV0334 AGF, in which Plaintiff again sued Bellefontaine for discrimination and retaliation, but under the Missouri Human Rights Act, Mo. Rev. Stat § 213.010, et seq. (Doc. No. 9.) Bellefontaine moved to dismiss the consolidated claims for failure to state a claim upon which relief may be granted, and the Court granted Bellefontaine's motion in part. (Doc. No. 12.) The Court held that Bellefontaine, which is operated by and merely an extension of the state of Missouri, was not properly named in the suit, but granted Plaintiff leave to amend and name the proper party as defendant in this case. ( Id. at 4-5.) The Court also dismissed the discrimination claims in both cases for Plaintiff's failure to exhaust his administrative remedies. ( Id. at 6.)
However, the Court held that Plaintiff's allegations in his charges of discrimination with the Equal Employment Opportunity Commission (in this case) and the Missouri Commission on Human Rights (in case No. 4:13CV0334 AGF) that his supervisor, Hargis, "was aware of his disability (which Plaintiff nowhere identifies) and that she pulled [him] from [his] lunch, ' denied him reasonable accommodation regarding his lunch break, and required him to walk half a mile to unlock a door, '" while not cognizable under Title VII, could, if more factual detail was added, possibly state a claim under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C §§ 12101, et seq. (Doc. No. 12 at 3, 7; see also Doc. No. 1-1 at 2.) Therefore, the Court dismissed Plaintiff's discrimination claims, but granted Plaintiff leave to plead a sufficient factual basis to state a claim under the ADA for disability discrimination, including his alleged disability, his qualifications to perform the functions of his job with proper accommodations, and the accommodations he requested. (Doc. No. 12 at 7.)
Finally, the Court held that Plaintiff's allegations in case No. 4:13CV0334 AGF that he was retaliated against while engaged in the EEOC process, and that as a result of a "false statement" written by Post and Hargis, he was disciplined unfairly and lost salary, adequately alleged retaliation under federal and state law. (Doc. No. 12 at 2-3, 8.) The Court granted Plaintiff until July 1, 2013, to file an amended complaint naming the proper party as defendant and properly stating a claim for retaliation and for violation of the ADA. ( Id. at 10.)
On July 1, 2013, Plaintiff filed an amended complaint in this case. (Doc. No. 13.) Plaintiff names as Defendants Post, Hargis, Wayer, Moody, and Dahlen, all in their individual capacities. Neither the state of Missouri nor Bellefontaine is named in the suit. Defense counsel waived service of process on Post, Hargis, and Wayer, who are current employees at Bellefontaine. And on March 19, 2014, the Court ordered defense counsel to provide Plaintiff the last known address of Defendants Moody and Dahlen, former employees at Bellefontaine, so that Plaintiff could serve these Defendants. (Doc. No. 20.) Defense counsel asserts, and Plaintiff does not dispute, that defense counsel complied with the Court's order, and defense counsel has provided the Court with a copy of his March 21, 2014 letter to Plaintiff listing the last known addresses of Moody and Dahlen. ( See Doc. No. 30-1.) The record reflects that Plaintiff has never served these Defendants.
Plaintiff's amended complaint alleges retaliation under Title VII, and lists a variety of constitutional amendments,  which the Court construes as alleging a claim under 42 U.S.C. § 1983 for deprivation of constitutional rights. Plaintiff alleges that Post, superintendent at Bellefontaine, "wrote a false statement which resulted in [Plaintiff's] unfair discipline and lost wages, " told various employees not to "associate" with Plaintiff, and threatened Plaintiff with dismissal if she found out Plaintiff "retrieved a newsbrief from the internet, " which Plaintiff denied doing. (Doc. No. 13 at 3, 6.) Plaintiff alleges that Hargis, assistant superintendent at Bellefontaine, referred to Plaintiff as "the devil" in front of other staff; pulled Plaintiff from a lunch break to assist with moving furniture, which resulted in "low and high blood sugar levels requiring a higher dosage of medication;" told Plaintiff that he would always work first shift alone; and ordered Plaintiff to attend a class during which a training instructor, Steve Roberts,  "had a white female read aloud during class the definition of (nigger)." ( Id. at 3.) With respect to Wayer, Chief Financial Officer at Bellefontaine, Plaintiff alleges that "[a]s an aggrieved employee, " he was called to Wayer's office, and Wayer demoted him, causing him to lose $1, 500 annually. ( Id. at 4.) Plaintiff alleges that his "grievance" was resolved by the removal of Wayer as his supervisor, but he never regained his position or his lost wages. ( Id. )
On May 19, 2014, Defendants Post, Hargis, and Wayer filed a motion to dismiss Plaintiff's § 1983 claims against them. (Doc. No. 26.) These Defendants also seek to dismiss any claims against them under the ADA. However, notwithstanding the Court's order granting Plaintiff leave to plead an ADA claim, Plaintiff's amended complaint does not purport to assert any claim under the ADA, and Plaintiff's claims against Defendants Post, Hargis, and Wayer do not allege that Plaintiff is disabled or that he requested and was denied any reasonable accommodation. ( See Doc. No. 13 at 1, 3-6.) Because Plaintiff does not allege an ADA claim against Defendants Post, Hargis, or Wayer, the Court will only address these Defendants' motion to dismiss as it relates to Plaintiff's § 1983 claims. The motion to dismiss does not address Plaintiff's retaliation claims under Title VII. Plaintiff has not responded to the motion to dismiss, and the time to do so has expired.
On September 5, 2014, the Court ordered the Plaintiff to show cause why the claims against Defendants Moody and Dahlen should not be dismissed for failure to serve them within the 120-day time period prescribed in Federal Rule of Civil Procedure 4(m), and to show cause why the claims against Defendants Post, Hargis, and Wayer should not be dismissed for the reasons set forth in their motion to dismiss, to which Plaintiff had not responded. (Doc. No. 28.) Plaintiff responded to the show cause order on September 17, 2014. In his response, Plaintiff requests a waiver of service upon Defendants Moody and Dahlen, and purports to attach documents reflecting his attempts to serve these Defendants. (Doc. No. 29.) The documents Plaintiff attaches to his response to the show cause order are summons issued in a different case, Case No. 4:14-cv-0000894, before Judge Stephen N. Limbaugh Jr., and to different defendants, not Defendants Moody or Dahlen. ( See id. at 2-12.) Plaintiff's response to the show cause order does not address or respond to the motion to dismiss filed by Defendants Post, Hargis, and Wayer.
Failure to Serve Defendants Moody and Dahlen
Under Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court... must dismiss the action without prejudice against that defendant or order that service be made within a specified time." The Court does not have authority to waive service upon a defendant. And although the Court may extend the time for service, the plaintiff must first show good cause for the failure to serve. Kurka v. Iowa County, 628 F.3d 953, 957 (8th Cir. 2010).
Plaintiff has not put forth any evidence to demonstrate that he has ever attempted to serve Defendants Moody or Dahlen in this case or that he has good cause for extending the time to do so. Therefore, the Court will dismiss Plaintiff's claims against ...