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Lewis v. DBI Services

United States District Court, W.D. Texas, San Antonio Division

January 15, 2020

GREGORY MICHAEL LEWIS, Plaintiff,
v.
DBI SERVICES, HEADQUARTERS IN PENNSYLVANIA; WILL SCHULLER, DBI PROJECT MANAGER;; Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE

         To the Honorable United States District Judge David A. Ezra:

         This Report and Recommendation concerns Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) [#27]. All dispositive pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#28]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that the Motion [#27] be GRANTED.

         I. Background

         Plaintiff, proceeding pro se, originally filed his Civil Rights Complaint in the Southern District of Texas, along with a motion to proceed in forma pauperis (“IFP”) in this action. Plaintiff is currently incarcerated at the Nueces County Jail in Corpus Christi, Texas. His Original Complaint sued DBI Services, Will Schuler, and an unknown Defendant regarding his former employment with DBI Services in San Antonio, Texas. The Southern District transferred Plaintiff's Complaint to the Western District of Texas on June 12, 2019. This Court thereafter granted Plaintiff's motion to proceed IFP but ordered Plaintiff to file a more definite statement regarding his claims. Plaintiff filed his more definite statement as ordered, and the Court ordered service of Plaintiff's Complaint on Defendants, finding that he had asserted at least one non-frivolous claim.

         Defendants filed a motion to dismiss on October 4, 2019. Plaintiff failed to respond to the motion by the deadline imposed by this Court's Local Rules, and the District Court ordered Plaintiff to respond to the motion by November 12, 2019 or face dismissal for failure to prosecute. Rather than filing a response as ordered, Plaintiff filed an Amended Complaint [#26]. The Amended Complaint is Plaintiff's live pleading and names only DBI Services and Schuler. Defendants renewed their arguments for dismissal by filing the second motion to dismiss that is now before the Court.

         II. Legal Standard

         “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Although a complaint “does not need detailed factual allegations, ” the “allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations pleaded must show “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotation omitted). However, a Court need not credit conclusory allegations or allegations that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at 678). In short, a claim should not be dismissed unless the court determines that it is beyond doubt that the plaintiff cannot prove a plausible set of facts that support the claim and would justify relief. See Twombly, 550 U.S. at 570.

         Because Plaintiff is a pro se litigant, his pleadings are to be liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, pro se litigants, like all other parties, must follow the Federal Rules of Civil Procedure. See Chhim, 836 F.3d at 469 (“We hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, but pro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level.”).

         Defendant's Motion to Dismiss was filed on November 18, 2019, meaning Plaintiff's response to the motion was due on or before December 5, 2019. See Loc. R. CV-7(e) (responses to dispositive motions such as a motion to dismiss are due within fourteen days of motion's filing); Fed.R.Civ.P. 6(a), (d) (adding three days to response deadline for service by mail). To date, Plaintiff has not filed a response. Pursuant to Local Rule CV-7(e), if there is no response filed within the time period prescribed by the rules, the court may grant the motion as unopposed. Nevertheless, because this is a dispositive motion, the undersigned will evaluate its merits as well.

         III. Analysis

         Plaintiff's Amended Complaint alleges he was “deliberately singled out and discriminated against” due to Defendants' knowledge of his mental state and his medications. (Am. Compl. [#26] at 3-4.) Plaintiff contends these actions violate the Americans with Disabilities Act (“ADA”). Defendants seek dismissal of ...


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