UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JEMAL A. CHEATHAM, Plaintiff, v. Civil Action No. 18-03026 (CKK)
CHAD WOLF, et al., Defendants.
MEMORANDUM OPINION
Plaintiff, appearing pro se and in forma pauperis (“IFP”), is a resident of Ruther Glenn,
Virginia. He sues the Department of Homeland Security (“DHS”) and the Acting Secretary of
DHS. 1 See Complaint (“Compl.”), ECF No. 1 at caption. The Complaint is far from a model in
clarity, but it appears that Plaintiff is suing DHS, more specifically, DHS subsidiary agency,
Federal Emergency Management Agency (“FEMA”), for alleged violations of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. See Compl. at 1–2; Pl.’s Opp. at 2–
3, 12–16. Before the Court is Defendants’ Motion to Dismiss, ECF No. 11, and Memorandum in
Support (“Def’s Mem.”), ECF No. 11-1. The Court shall deny Defendants’ Motion to Dismiss
WITHOUT PREJUDICE and shall allow Plaintiff leave to amend the Complaint.
I. BACKGROUND
Plaintiff filed this matter on December 3, 2018. Summonses were issued on February 6,
2019, and the United States Attorney for the District of Columbia was served, see Fed. R. Civ. P.
1 Plaintiff first sued then-Acting DHS Secretary, Kirstjen M. Nielsen, see Compl. at caption, and then later substituted then-Acting DHS Secretary, Kevin K. McAleenan, see Opposition to Motion to Dismiss (“Pl.’s Opp.”), ECF No. 13, at caption, 1 n.1. The current Acting Secretary of the DHS is Chad Wolf, and he is automatically substituted as Defendant in his official capacity for his predecessor pursuant to Fed. R. Civ. P. 25(d).
1 12(a)(2), on March 20, 2019. See Return of Service Affidavit, ECF No. 6. Plaintiff moved for
default, see Affidavit for Default, ECF No. 7, and the Clerk of Court entered default against
Defendants on April 18, 2019. See Clerk’s Entry of Default, ECF No. 8. However the entry of
default was vacated on May 7, 2019, because the deadline to file an answer had not yet elapsed,
see May 5, 2019 Min. Ord. Additionally, DHS had not yet been served. See Fed. R. Civ. P. 4(i)(1),
(2).
In the interim, on May 20, 2019, Defendants filed the pending Motion to Dismiss. Plaintiff
filed an Opposition on May 28, 2019, to which Defendants filed a Reply (“Def.’s Rep.”), ECF No.
14, on June 10, 2019. On July 19, 2019, the Acting DHS Director was served with process. See
Return of Service Affidavit, ECF No. 15. The Clerk of the Court reissued summonses, see ECF
No. 16, for the Department of Homeland Security on August 13, 2019. DHS was then served on
September 20, 2019. See Return of Service Affidavit, ECF No. 17.
II. LEGAL STANDARDS & DISCUSSION
Defendants move to dismiss pursuant to Federal Rules 4(m), 12(b)(1), and 12(b)(6). See
Def.’s Mem. at 2–4. In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a
court must “treat a complaint's factual allegations as true . . . and must grant a plaintiff ‘the benefit
of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011). Where a plaintiff is proceeding pro se, the Court must consider all of plaintiff's
filings in toto when assessing a motion to dismiss. See Richardson v. United States, 193 F.3d 545,
548 (D.C. Cir. 1999).
2 Service of Process
First, Defendants move to dismiss based on Plaintiff’s purported failure to comply with
Fed. R. Civ. P. 4(m). Def.’s Mem. at 2. A party may move under Federal Rule of Civil Procedure
12(b)(5) to dismiss a complaint for insufficiency of service of process. “Upon such a motion, the
plaintiff carries the burden of establishing that [she] has properly effected service” as is required
under Rule 4. See Koerner v. United States, 246 F.R.D. 45, 46 (D.D.C. 2007) (internal quotations
and citation omitted). “[U]nless the procedural requirements for effective service of process are
satisfied, a court lacks authority to exercise personal jurisdiction over the defendant.” Candido v.
Dist. of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007). Rule 4(m) requires that service of
summons and the complaint be made upon the defendant “within 90 days after the complaint is
filed[.]” Fed. R. Civ. P. 4(m). However, courts “must extend the time for an appropriate period”
if the plaintiff shows good cause for failure to effect timely service. See id.”
Defendants argue that Plaintiff failed to serve DHS within 90 days in accordance with
Federal Rule of Civil Procedure and that he has failed to proffer any reason constituting good cause
for the delay. Def.’s Mem. at 2; Def.’s Rep. at 1–3. Plaintiff states that he was unsure of how to
perfect service on the agency. Pl.’s Opp. at 1.
The Court finds good cause for the delay. Because Plaintiff is proceeding IFP, the Court
officers are responsible for effecting service of process based on information that he provides. See
28 U.S.C. § 1915(d). While Plaintiff still maintains the burden of establishing the validity of
service and must demonstrate that the procedure satisfied the requirements of Rule 4, see Light v.
Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987), the actual service of process is to be performed by the
United States Marshals Service, see 28 U.S.C. § 1915(d). Generally, pro se plaintiffs who depend
on Court officers for executing service should not be penalized for a Court officer's failure to effect
3 service of process. Ray v. Experian, Inc., No. 08–0114 (RCL), 2009 WL 1255114 at *1 (D.D.C.
Apr. 28, 2009); see Mondy v. Sec'y of the Army, 845 F.2d 1051, 1060 (D.C. Cir. 1988)
(MacKinnon, J. concurring) (finding that service mistakes were not committed by pro se plaintiff
and that he was “entitled and required to rely on the Marshal to serve the defendant or the United
States Attorney within the statutory time period.”); Thomas v. Fed. Aviation Admin., No. 05–2391,
2007 WL 219988, at *4 (D.D.C. Jan. 25, 2007) (finding “good cause” for the delay in service of
process on named defendants where, due to Clerk's Office error and “[t]hrough no fault of
Plaintiff's,” the summonses and complaints were not timely served).
For all of these reasons, and because all Defendants have since been served, and Defendants
have not offered any argument to suggest that they were prejudiced by this delay, the Court
declines to dismiss this matter pursuant to Fed. Rs. Civ. P. 4(m) and 12(b)(5).
Subject Matter Jurisdiction
Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan
v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363
F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an
examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as
well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction
upon a federal court.’” Akinseye v. District of Columbia, 339 F. 3d 970, 971 (D.C. Cir. 2003)
(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)).
4 Further, a court is required to dismiss an action “at any time” if it determines that the subject matter
jurisdiction is wanting. See Fed. R. Civ. P. 12(h)(3).
When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents
outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735
n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (holding same); see also Artis
v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (“A court may consider material outside
of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject-
matter jurisdiction.).” By considering documents outside the pleadings when reviewing a motion
to dismiss pursuant to Rule 12(b)(1), the court does not convert the motion into one for summary
judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be converted into
a motion for summary judgment” when documents extraneous to the pleadings are considered by
a court. Haase, 835 F.2d at 905.
Defendants state correctly that the United States and its agencies are entitled to sovereign
immunity, except to the extent that they expressly consent to suit. See Def.’s Mem. at 3–4; United
States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted). Additionally, a lawsuit against a
government official in his or her official capacity “generally represent[s] only another way of
pleading an action against an entity of which an officer is an agent,” such that “an official capacity
suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985) (internal citations omitted); see also Clark v. Library of
Congress, 750 F.2d 89, 103, 104, n.31 (D.C. Cir. 1984) (holding that express waiver is required,
regardless of whether such actions are brought against a government agency directly or against the
officials in their official capacity). A waiver of sovereign immunity “must be unequivocally
expressed in statutory text, and [it cannot] be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996)
5 (citations omitted). Plaintiff has not established that DHS or its officers have expressly consented
to damages suit.
Therefore, to the extent that Plaintiff intends to raise any constitutional tort claims, see
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), his demand for money damages against DHS and its
officials (named in their official capacity) for any alleged constitutional violation(s) must fail. See,
e.g., Roman v. Nat'l Reconnaissance Office, 952 F. Supp. 2d 159, 163–64 (D.D.C. 2013).
However, Plaintiff seems to clarify, through his Opposition, that he is not alleging any
constitutional tort claims; he solely discusses allegations of gender/sex discrimination and
retaliation pursuant to Title VII. See Pl.’s Opp. at 2–3, 12–16. For this reason, Defendants’
sovereign immunity argument is now moot.
The Court agrees with Defendants that Plaintiff has incorrectly sued DHS itself in bringing
his claims for discrimination. Def.’s Mem. at 4 n.4; Def.’s Rep. at 3. Title VII is the exclusive
remedy available to a federal employee seeking redress of employment discrimination, Brown v.
General Services Administration, 425 U.S. 820, 835 (1976); Kizas v. Webster, 707 F.2d 524, 542
(D.C. Cir. 1983), cert. denied, 464 U.S. 1042 (1984), and the head of the agency is the only proper
defendant in a Title VII action, 42 U.S.C. § 2000e–16(c) (1982); Davis v. Califano, 613 F.2d 957,
958 n.1 (D.C. Cir. 1980). Nonetheless, this appears to be an innocuous error and is easily cured
“simply by naming” the current Acting DHS Secretary as the only party defendant, Jarrell v. U.S.
Postal Service, 753 F.2d 1088, 1091 (D.C. Cir. 1985), and this particular type of amendment “shall
be freely given when justice so requires,” id. (remanding matter to trial court and allowing pro se
plaintiff to amend his complaint to substitute the Postmaster General for the Postal Service as party
defendant) (citing Fed. R. Civ. P. 15(a)). Therefore, the Court does not find dismissal for want of
subject matter jurisdiction appropriate at this time.
6 Failure to State a Claim
In order to survive a Rule 12(b)(6) 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); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,
the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. at 678. “Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels
and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting
Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Additionally, when a plaintiff is proceeding IFP,
the court is mandated to dismiss a complaint which fails to state a claim upon which relief can be
granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii); see also Baker v. Director, U.S. Parole Com’n, 916
F.2d 725, 727 (D.C. Cir. 1990) (holding that a sua sponte dismissal is appropriate for failure to
state a claim pursuant to Fed. R Civ. P. 12(b)(6)).
In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily
consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated
by reference in the complaint and matters about which the Court may take judicial notice.”
7 Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997)).
Defendants argue that Plaintiff’s Complaint is insufficient pursuant to Fed. R. Civ. P. 8(a).
Def.’s Mem. at 3. They further contend that the vagaries of the Complaint are compounded by the
fact that Plaintiff “raised numerous allegations at the administrative level, some of which were
accepted by the agency and some which were not[,]” id. at 1 n.2, but plaintiff fails to specify
“whether he intends to pursue all of the claims that were investigated and resolved against him
without a hearing at the administrative level[,]” id. at 1. Due to ambiguous nature of the
Complaint, Defendants attest that they are “left unable to identify the nature of his claims[,] . . .
whether Plaintiff has timely exhausted the administrative remedies that are a prerequisite to
bringing a federal action, and whether Plaintiff can present factual allegations that would support
a claim for relief.” Id. at 1–2.
The Court agrees that Plaintiff’s Complaint falls short. Pro se litigants must comply with
the Federal Rules of Civil Procedure. Jarrell, 656 F. Supp. at 239. Rule 8(a) of the Federal Rules
of Civil Procedure requires complaints to contain “(1) a short and plain statement of the grounds
for the court’s jurisdiction [and] (2) a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see Iqbal, 556 U.S. at 678-79; Ciralsky v. CIA,
355 F.3d 661, 668-71 (D.C. Cir. 2004). The Rule 8 standard ensures that defendants receive fair
notice of the claim being asserted so that they can prepare a responsive answer and an adequate
defense and determine whether the doctrine of res judicata applies. Brown v. Califano, 75 F.R.D.
497, 498 (D.D.C. 1977).
The Complaint, as pled, merely states that Plaintiff “is seeking to file a civil action . . . in
this Court[,]” but fails to identify any legal authority upon which he intends to rely. The complaint
8 affords some measure of factual information, however, that information is scattered with very little
context or detail, and ranges from indefinite references to Plaintiff’s Equal Employment
Opportunity Commission (“EEOC”) administrative pursuits, see Compl. ¶ 1, to alleged sexual
harassment he suffered, see id., to other unspecified alleged “inconsistencies and mistruths” on the
part of DHS and the EEOC, see id. at 2. He hints at allegations of employment discrimination, see
Compl. at 1–2, but he then fails to specify any intended cause of action. The Complaint is also
devoid of facts, identities, locations, or other information essential to maintaining claims before
the Court. It is also lacking the substance that would provide adequate notice to Defendants in
preparing to defend this case.
Plaintiff, however, provides certain clarity by way of his Opposition. In contrast to the
Complaint, the Opposition presents a generous amount of facts and aptly specifies his intention to
bring claims for gender/sex discrimination and retaliation pursuant to Title VII. See Pl.’s Opp. at
2–9, 12–16, 18, 20–1, 25, 28, 30–2. He alleges that he suffered gender/sex discrimination and
harassment during the time he worked for FEMA. See id. at 2–5, 12–15, 17–21. As a result, he
filed complaints with the EEO, and then allegedly suffered retaliation due to this activity. See id.
at 3, 5, 15–16, 21–5, 31. He alleges that he was unfairly removed from his position and then
intentionally prevented from obtaining other employment. See id. at 2–3. He also alleges that the
was unfairly accused of theft after his termination. See id. at 3. These additional and vastly
improved allegations in the Opposition assist the Court and Defendants in discerning Plaintiff’s
intended claims.
In order to survive a motion to dismiss, a plaintiff generally may not amend his complaint
nor assert new claims by way of a brief in opposition. Kingman Park Civic Assoc. v. Gray, 27 F.
Supp. 3d 142, 162 n.10 (D.D.C. 2014); Perkins v. Vance-Cooks, 886 F. Supp. 2d 22, 29 n.5 (D.D.C.
9 2012); Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.3 (D.D.C. 2010); College Sports
Council v. Gov’t Accountability Office, 421 F. Supp. 2d 59, 71 n.16 (D.D.C. 2006).
Notwithstanding, courts have, at times, accepted a pro se litigant’s motion to dismiss opposition
as a de facto amended complaint. See Richardson, 193 F.3d at 549.
Here, however, while the Court finds Plaintiff’s Opposition illuminating regarding his
intended claims, it still finds that a formal amended complaint is required. Where Plaintiff’s
Complaint is wanting for information and detail, the Opposition is, by contrast, lengthy and
digressive, and Plaintiff must find a happy medium. For instance, the Opposition references a
“Claim 1” and “Claims 1-5[,]” Pl.’s Opp. at 25, 27, but those references to claims are unclear, and
the intended causes of action and facts are confusingly amalgamated. Also, at times Plaintiff
focuses heavily on summary judgment standards, arguments, and issues, see id. at 10–12, 29–32,
34–9, but no party has moved for summary judgment and thus, it is not before the Court. “A
confused and rambling narrative of charges and conclusions . . . does not comply with the
requirements of Rule 8.” Cheeks v. Fort Myer Constr. Corp., 71 F. Supp. 3d 163, 169 (D.D.C.
2014) (citation and internal quotation marks omitted).
Pursuant to Federal Rules of Civil Procedure 15(a)(2), “[t]he court should freely give leave
when justice so requires.” Fed. R. Civ.P. 15(a)(2); see also Graves v. United States, 961 F. Supp.
314, 317 (D.D.C. 1997) (noting that the decision whether to allow leave to amend is within the
court's discretion); Davis v. Liberty Mut. Ins. Co., 871 F. 2d 1134, 1136-37 (D.C. Cir. 1989)
(stating that “[i]t is common ground that Rule 15 embodies a generally favorable policy toward
amendments.”). Absent “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.,” a court
10 should allow amendment of a complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425-26
(D.C. Cir. 1996) (internal quotation marks and citations omitted).
Here, reviewing all of Plaintiff’s filings and holding them to a less stringent standard than
those drafted by a lawyer, see Richardson, 193 F.3d at 548, the Court finds that he should be
provided an opportunity to amend his Complaint. See Gonzalez v. Holder, 763 F. Supp. 2d 145,
149 n.1 (D.D.C. 2011) (proposing that plaintiff, proceeding pro se and IFP, who raised new claims
in his opposition to motion to dismiss, should consider filing an amended complaint) (citing Carter
v. Dep't of the Navy, No. 05–cv–0775 (RBW), 2006 WL 2471520 at *4 (D.D.C. Aug. 24, 2006)
(dismissing without prejudice new claims raised in plaintiff's opposition to defendant's motion to
dismiss with leave to amend the complaint), aff'd, 258 Fed. Appx. 342 (D.C. Cir. 2007) (per
curiam).
For these reasons, Plaintiff shall file an amended complaint “to assert with greater clarity”
his Title VII discrimination and retaliation claims, which materialized more fully during motions
briefing. Carter, 2006 WL 2471520 at *6 (limiting the claims in the impending amended to
complaint to those newly raised in opposition to motion to dismiss) (citing Wyatt v. Syrian Arab
Republic, 362 F. Supp. 2d 103, 117 (D.D.C. 2005) (allowing plaintiffs to specifically and limitedly
amend their complaint based on allegations in their opposition, but not allowing any other
modifications of the complaint).
IV. CONCLUSION
For all of these reasons, the Court denies Defendants’ Motion to Dismiss WITHOUT
PREJUDICE and shall allow Plaintiff to file, by April 6, 2020, an amended complaint in
compliance with the Federal Rules of Civil Procedure and District of Columbia Local Civil Rules.
In this regard and where applicable, he must specify by number, the EEOC decisions related to his
11 intended claims. He must also name the proper defendant, see 42 U.S.C. § 2000e–16(c), namely,
the current Acting DHS Secretary, and remove all improper defendants. A separate Order with
additional detail accompanies this Memorandum Opinion.
________/s/__________________ COLLEEN KOLLAR-KOTELLY Date: March 4, 2020 United States District Judge