UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) JAMES A. WASHINGTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1502 (JR) ) PETE GEREN, ) Secretary of the Army, ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION
Plaintiff James A. Washington, proceeding pro se, sues his former employer, the
Secretary of the Army. Citing the Rehabilitation Act, 29 U.S.C. § 701 et seq., and TitleVII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the amended complaint alleges that the
defendant discriminated against the plaintiff because of his disability and retaliated against him
for a prior legal activity. The defendant Secretary has moved to dismiss some claims and for
summary judgment on other claims, the plaintiff has filed an opposition, and both parties have
submitted numerous exhibits. For the reasons set forth below, the Secretary’s motion will be
granted in part and denied in part.
Background
Mr. Washington had a job as a custodian in the Environment Services Division (“ESD”)
at the Walter Reed Army Medical Center from 1993 until he resigned on October 10, 2007.
Def.’s Stmt. of Material Facts not in Dispute (“Def.’s Facts”) ¶ 1. Mr. Washington alleges that at “all relevant times,” he was “disabled as a result of depression,”1 Am. Compl. (“Compl.”) ¶ 5,
and alleges discrimination on this account, id. ¶ 8 (“Defendant took each of these [complained
of] actions as a result of Washington[’s] . . . disability.”) He also alleges that the defendant
retaliated against him because of his prior complaints and lawsuit. Id. ¶ 6 (implicitly referring to
without citing his multiple EEO administrative complaints and his prior lawsuit, Washington v.
White, Civil Action No. 01-420 (RBW) (D.D.C.), filed Feb. 27, 2001), id. ¶ 8 (“Defendant took
each of these actions as a result of Washington[’s] past filing[] of grievances . . . .”). The
Secretary counters that his employment decisions regarding Mr. Washington were motivated by
Mr. Washington’s chronic absenteeism and failure to comply with the leave policy, and not by
his disability or his prior legal activity. See Mem. in Support of Def.’s Mot. to Dismiss in Part
and for Summ. J. (“Def.’s Mot.”) at 31-36.
Mr. Washington, like all ESD employees, was subject to a leave policy that required him
to provide medical documentation justifying any sick leave lasting more than three days. Def.’s
Facts ¶ 9; Def.’s Mot., Ex. 2, Decl. of Leon C. Thurston, Apr. 7, 2009 (“Thurston Decl.”) ¶ 4.
The factual record establishes that in May 2004, citing Mr. Washington’s negative sick leave
balance and repeated failure to comply with the standard leave policy, Mr. Washington’s
supervisor issued a leave restriction notice to him, requiring that he request leave for any planned
absence at least one day in advance in writing, and to call his supervisor within the first two
hours of the shift for any unplanned absence. Def.’s Mot. Ex. 5; Def.’s Facts ¶ 12. By agreement
dated June 28, 2004, and approved by the court, Mr. Washington and the defendant settled a
1 Documents submitted by the plaintiff show a psychiatric diagnosis of major depression and paranoid personality disorder. See Opp’n Exs. 20, 116.
2 prior Title VII lawsuit. See Washington v. White, Joint and Voluntary Stipulation of Settlement
and Dismissal (June 30, 2004).2 In November 2004, the leave restriction was extended because
Mr. Washington had used another 275 hours of sick leave and was only sporadically complying
with the leave restrictions imposed earlier. Def.’s Mot. Ex. 7; Def.’s Facts ¶ 12-13. These leave
restrictions were extended periodically through the remainder of Mr. Washington’s employment
due to his continued chronic absenteeism. See Opp’n Exs. 42, 43, 48 (notices extending leave
restrictions).
In January 2005, the plaintiff claimed he was injured on the job, a claim as to which his
supervisor expressed his doubts to management. Compl. ¶ 7B; see also Thurston Decl. ¶ 6 &
Encl. 4 (explaining the basis for expressing his doubts about a reported knee injury). Later that
month, the defendant was advised that due to his knee injury Mr. Washington should be assigned
to only light duty. Def.’s Mot. Ex. 10. In March 2005, in lieu of other light duty, he was
temporarily assigned to work outside as a doorman on the loading dock. Compl. ¶ 7C.
Thereafter, he was assigned to light duty answering telephones and conducting inventory.
Thurston Decl. ¶ 7. In the work year 2005, Mr. Washington was absent 872 hours, which is a
little more than 43% of the typical 2000 hour work year. Opp’n Ex. 48.
In January 2006, Mr. Washington’s supervisor directed other employees not to answer
questions about Mr. Washington’s EEO complaint. Compl. 7I. The supervisor, Leon Thurston,
has averred that he told other employees that “they shouldn’t talk to anyone about the case until
2 Mr. Washington’s attendance record and compliance with the Secretary’s leave policy were issues in the prior lawsuit, as well. See Washington v. White, Mem Op. at 8-9 (Oct. 22, 2002) (noting Washington’s alleged excessive and unscheduled absences from work, and that he did not maintain a regular work schedule from 1996 through 1998).
3 they checked with management first to see if the person was legitimately there.” Thurston Decl.
¶ 13 (further explaining that his intention “was to maintain some order at the worksite [sic], and
to make sure whoever came to talk to my employees was therefore an appropriate reason.”).
Mr. Washington was absent more than eleven days in January and February, and all but 5 days,
aggregated, in March. Def.’s Facts ¶ 9. Without providing medical documentation, he cited
workplace stress as the reason. Opp’n Ex. 124, 124-B. In early March 2006, Mr. Washington
believed a co-worker stole his lottery ticket, and made multiple verbal threats to that co-worker’s
physical safety. See Thurston Decl. ¶ 2 & Encl. 1 (“Memorandum to File” signed by Edna
Royster, Mar. 9, 2006). Mr. Washington was absent from work all of April. Def.’s Facts ¶10.
Nonetheless, in April 2006 he complained of a “large volume of work” because a worker on the
night shift had “not been performing his duties,” and complained that he had not been assigned to
work overtime on “weekends for months.” Opp’n Ex. 32; see also Compl. ¶ 7M; Opp’n at 27.
By mid-April, in the wake of his absenteeism and his verbal threats of bodily harm, his employer
arranged for a psychological fitness-for-duty examination to be conducted in June, and directed
Mr. Washington to attend. Def.’s Facts ¶ 6; Opp’n Ex. 122. In May, Mr. Washington reported to
work only one and one-half days. Def.’s Facts ¶ 10. In June, the month Mr. Washington was
due to return to regular duty after having been on “light duty” since sustaining his knee injury
some 18 months earlier, he reported for just one day of duty — the psychological examination.
Id. ¶ 10; Def.’s Mot., Ex. 4 (Report of Psychological Examination) at 8 (noting that
Mr. Washington reported that he was due to return to regular duty that month). The report of the
psychological examination, submitted on or about July 31, 2006, see Opp’n Ex. 109 (cover letter
for report), advised that despite his long-term treatment for his mental health problems, it was not
4 likely that Mr. Washington would be able to resume a productive role as an employee, see Def.’s
Facts ¶ 8, Def.’s Mot. Ex. 4 (Report of Psychological Examination). Mr. Washington did not
report to work at all in July 2006 or anytime thereafter. Def.’s Facts ¶ 10. In September 2006,
because he was still in violation of his leave restrictions, Mr. Washington’s absences were
designated as without leave (“AWOL”). Thurston Decl. ¶ 25. Mr. Washington was cleared by
his personal psychiatrist to return to work on December 26, 2006, see Opp’n Ex. 115, but he did
not report to work. Instead, he requested administrative leave with pay. See id. at 32 & Ex. 156-
B. His supervisors advised him that they did not have grounds to approve his request for paid
leave. Def.’s Facts ¶¶ 50, 51.
In January 2007, Mr. Washington made a request under the Freedom of Information Act
to his employer for his medical and other records. See Reply to Pl.’s Opp’n to Def.’s Mot.
(“Reply”), Decl. of Judy J. Bizzell, Sept. 18, 2009 (“Bizzell Decl.”) ¶¶ 5, 8. The defendant
provided multiple responses to his request, including releasing more than 600 pages of
documents. Id. ¶¶ 7, 9, 12, 14, 16. Mr. Washington continued in unpaid AWOL status until he
resigned by letter dated October 10, 2007. Def.’s Facts ¶ 10.
Mr. Washington posits that he was discriminated and retaliated against when the
defendant did not place him on administrative leave with pay rather than classify him as AWOL.
See Compl. ¶ 7T; Opp’n at 30 (“The plaintiff couldn’t work due to the examination for a
preexisting condition that the employer knew about for years.”); see also Def.’s Mot. Ex. 19. He
also suggests that he was not free to return to work after the psychological exam. Compl. ¶ 7S;
Opp’n at 32 (“The plaintiff requested administrative leave due [to] the fact [that] the plaintiff
couldn’t work because of the ordered exam.”) (punctuation altered). In addition, he identifies
5 several other instances that he offers as examples of the defendant’s alleged disability
discrimination and retaliation, including extending the leave restriction in November 2004,
Compl. ¶ 7A, treating some absences as AWOL and taking other attendance-related measures, id.
¶¶ 7D-7H, 7X, directing other employees to not answer questions about plaintiff’s EEO
complaint without confirming that the questioner was legitimately present, id. ¶ 7I, directing
plaintiff to report for the fitness for duty examination in summer 2006, id. ¶ 7L, assigning
plaintiff to work temporarily in inclement weather as a doorman for the loading dock, id. ¶ 7C,
failing to investigate an alleged theft by co-workers, id. ¶¶ 7J, 7N, expressing disbelief of an
unwitnessed workplace injury for which Mr. Washington filed a claim, id. ¶ 7B, low pay, id.
¶ 7V, allowing excessive workloads and providing no overtime assignments in the months
leading up to April 2006, id. ¶ 7M, not timely providing requested documents, id. ¶¶ 7O, 7P, 7U,
and violating the terms of their prior settlement agreement, id. ¶ 7R.
Analysis
On a motion to dismiss, a complaint or part of it may be dismissed if it fails to state a
claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). A pro se complaint is entitled
to liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, any time a court
determines that a claim filed by a plaintiff proceeding in forma pauperis fails to state a claim
upon which relief may be granted, the claim must be dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii).
In considering whether a complaint fails to state a claim upon which relief may be granted, a
court generally “must accept as true all of the factual allegations contained in the complaint,”
Erickson v. Pardus, 551 U.S. 89, 94 (2007), and “grant plaintiffs the benefit of all inferences that
can be derived reasonably from the facts alleged,” but need not accept either a plaintiff’s legal
6 conclusions, or inferences drawn by the plaintiff if those inferences are unsupported by facts
alleged in the complaint, Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). “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. . . . 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.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (internal quotation marks and citations omitted).3
A movant is entitled to summary judgment when he can show that on the entire record
before the court, “there is are no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the
governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary
judgment determination.” Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at
248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under
consideration, “the evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in [the non-movant’s] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The
3 The amended complaint contains a non-specific, wholly conclusory allegation that the defendant altered an EEO hearing transcript. This allegation, naked of any specific facts, fails to meet the Iqbal standard of facial plausibility and will be dismissed on the court’s authority under 28 U.S.C. § 1915(e)(2)(B)(ii). See Compl. ¶ 7Q (“In February of 2007, the agency illegally altered Equal Opportunity Employment [sic] Commission hearing transcript.”)
7 non-moving party's opposition, however, must consist of more than mere unsupported allegations
or denials and must be supported by affidavits, declarations or other competent evidence setting
forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e)(2);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party is “required to
provide evidence that would permit a reasonable jury to find” in his favor. Laningham v. U.S.
Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is “merely colorable” or “not
significantly probative,” summary judgment may be granted. Anderson v. Liberty Lobby, Inc.,
477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) (“[W]here the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, ‘there is no genuine
issue for trial.’”) (quoting Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). In short, to defeat summary judgment, a plaintiff must produce more than “a
scintilla of evidence to support his claims.” Freedman v. MCI Telecommunications Corp., 255
F.3d 840, 845 (D.C. Cir. 2001).
The disability discrimination and retaliation claims
A plaintiff is required first to exhaust his administrative remedies before filing suit under
either Title VII or the Rehabilitation Act. Bowden v. United States, 106 F.3d 443, 437 (D.C. Cir.
1997). Where, as here, the defendant has not waived the exhaustion requirement, this court may
consider only those matters already vetted in the administrative process or claims “like or
reasonably related to” those matters. Park v. Howard University, 70 1F.3d 904, 907 (D.C. Cir.
1995). In this case, several of the allegations in the amended complaint were not exhausted, are
not like or reasonably related to the allegations made in the administrative process, and are
therefore not properly before this court. See Def.’s Mot. at 23. Accordingly, to the extent those
8 allegations constitute claims of disability discrimination or retaliation for protected legal activity,
they will be dismissed for failure to state a claim upon which relief may be granted.4
In addition, to obtain relief under either Title VII or the Rehabilitation Act, a plaintiff
must show “(I) that the plaintiff suffered an adverse employment action (ii) because of the
plaintiff’s race, color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne,
550 F.3d 1191, 1196 (D.C. Cir. 2008) (emphasis added). An adverse employment action is one
that causes a “significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
changes in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). In this case, most
of the matters alleged in the amended complaint do not amount to adverse employment decisions.
Therefore, with the exception of the measures that deprived Mr. Washington directly or
indirectly of days of paid leave, the amended complaint does not identify any adverse
employment actions. Accordingly, to the extent that the remaining allegations in the amended
complaint were intended to state claims of disability discrimination or retaliation, they fail, and
the defendant is entitled to summary judgment on those claims.5
4 These claims include the allegations in the amended complaint at ¶¶ 7B (that his supervisor forwarded false information about plaintiff’s workplace injury), 7J (that his supervisor did not “address the fact” that co-workers had some of plaintiff’s personal property), 7K (that the defendant’s EEO office used the plaintiff’s disability to remove him and never intended to help him), 7M (the plaintiff was given excessive workloads and not given weekend over time for several months), 7N (the plaintiff’s supervisor did not investigate plaintiff’s allegation of workplace crimes), 7P (that the defendant did not promptly respond to a request for a hearing transcript), 7Q (that the defendant altered a hearing transcript), and 7U (that the defendant did not respond to requests under the Freedom of Information Act). 5 Specifically, the Rehabilitation Act and Title VII claims that fail for this reason are the following: Compl. ¶ 7C (that the plaintiff was required to work outside temporarily as a doorman on the loading dock to accommodate his request for light), ¶ 7I (that a supervisor
9 In an employment discrimination case brought under either Title VII or the Rehabilitation
Act, the burden-shifting algorithm of McDonnell Douglas may be applied. Barth v. Gelb, 2 F.3d
1180, 1185 (D.C. Cir. 1993) (approving the application of Title VII’s McDonnell Douglas
burden-shifting algorithm to the Rehabilitation Act). Furthermore, regardless of whether a
plaintiff has fulfilled his burden of making a prima facie case, a defendant employer may
successfully defend itself by establishing that his actions were based on a legitimate, non-
discriminatory reason. Brady v. Livingood, 520 F.3d 490, 493 (D.C. Cir. 2008) (stating that
inquiry into the prima facie case is almost always irrelevant if the defendant has offered a
legitimate non-discriminatory reason). In the end, under either Title VII or the Rehabilitation
Act, a plaintiff must prove that the defendant’s adverse employment action was taken “because
of the plaintiff’s race, color, religion, sex, national origin, age, or disability.” Baloch v.
Kempthorne, 550 F.3d at 1196. Similarly, a plaintiff alleging retaliation must prove that he
suffered an adverse employment action because of his prior protected legal activity. See
Broderick v. Donaldson, 338 F. Supp. 2d 30, 38 (D.D.C. 2004) (stating that the elements of a
Title VII retaliation claim are (1) engaging in a statutorily protected activity, (2) an adverse
employment action, and (3) a causal connection between the two). Thus, without deciding
whether any of the actions of which Mr. Washington complains were adverse, the only question
to be resolved at this juncture is “whether the plaintiff has produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
instructed other employees not to answer questions about the plaintiff’s EEO complaint until the supervisor had confirmed the auspices of the questioner, see Thurston Decl. ¶ 13), ¶ 7L (that plaintiff was ordered to undergo a fitness for duty examination), ¶ 7O (that defendant stated that the report of the fitness for duty examination belongs to the defendant) ¶ 7R (that the defendant violated one of the terms of the settlement agreement).
10 reason and that the employer intentionally discriminated against the employee on the basis of
[disability or engaging in protected activity].” Brady v. Livingood, 520 F.3d at 494.
The record in this case shows that Mr. Washington had frequent and prolonged absences
from work in violation of the employer’s standard leave policy and in violation of the leave
restrictions that were imposed on him from May 2004 forward as a result of his failure to abide
by the leave policy or to maintain a regular work schedule. There is no evidence in the record
that would support a reasonable jury finding that it was Mr. Washington’s depression rather than
his absenteeism that were the actual reason for charging some of his absences as AWOL, for
extending the leave restrictions imposed on him, or for refusing to place him on leave without
pay.6 The record does not show that Mr. Washington’s pay was any less than those of others of
6 The amended complaint does not expressly assert a claim for a hostile work environment or use any form of the phrase “hostile work environment.” It is clear that the plaintiff is aware of such a claim and that he had asserted such a claim elsewhere. See Def.’s Mot. at 1, 4. Therefore, unlike the defendant, id., the court declines to infer a claim for hostile work environment from the amended complaint. Had a claim hostile work environment claim been inferred, in all likelihood it would have failed for the reasons stated by the defendants. See id. at 41-46 (arguing that the incidents alleged do not rise to the level of adversity required by a hostile work environment claim).
The amended complaint also does not expressly assert a claim for refusal to reasonably accommodation the plaintiff’s depression, and does not use any form of the word “accommodate.” Accordingly, the court does not infer such a claim. Such a claim would fail in any case. Any inference of an accommodation claim from this record would require treating Mr. Washington’s absence as the reasonable accommodation. A plaintiff making an accommodation claim under the Rehabilitation Act must show that with the “reasonable accommodation, [he] can perform the essential functions of the position in question.” Barth v. Gelb, 2 F.3d at 1186. It is obvious that Mr. Washington could not both be absent and perform the essential functions of his custodial position; thus the claim would fail.
It should also be noted that the record directly contradicts Mr. Washington’s belated assertion that the “plaintiff’s department [] refused to allow him [to] have anger management treatment, which was recommended by medical professionals . . . .” Opp’n at 3 (citing exhibits 8, 9, 11 & 13). The record submitted by Mr. Washington shows that he was allowed to attend
11 similar tenure in the ESD, and therefore cannot serve as the basis for a disparate treatment claim.7
The supervisor who imposed the leave restrictions in May 2004 and extended them
thereafter and who designated certain absences as AWOL has attested that he did so because of
Mr. Washington’s absenteeism and not for any other reason. Thurston Decl. ¶ 5, 8, 10, 11, 12,
15, 18. He has also attested that the knew almost nothing about the prior suit or the terms of its
settlement, and has denied that it was a consideration in his decision at all. Thurston Decl. ¶ 24.
Mr. Washington has not offered any rebuttal evidence on that point. In the face of
Mr. Washington’s absenteeism, there is no basis on which a reasonable jury could find that
retaliation and not absenteeism was the actual reason for the measures taken.
Freedom of Information Act claim
Although the allegation that the defendant did not respond to requests for documents
cannot be treated as part of a discrimination claim because it was not exhausted in the
administrative EEO process, it may be treated as an independent claim under the Freedom of
Information Act, (“FOIA”) 5 U.S.C. § 552. The FOIA requires a plaintiff to exhaust his
administrative remedies before filing suit in federal court. While the FOIA exhaustion
anger management training sessions as recommended by Adventist Hospital and the defendant’s Employee Assistance Program staff, and provided by Adventist Hospital. See Opp’n Ex. 9 (letter from Washington Adventist Hospital recommending anger management training), id. Ex. 11 (EAP letter recommending anger management counseling ), id. Ex. 14 (certifying that Mr. Washington attended Adventist Hospital’s three-day anger management training program); compare id. Ex. 20 (psychiatrist open letter stating his belief that his patient, Mr. Washington, had not been able to attend the anger management sessions at Adventist Hospital). 7 The defendant’s statement that there was an attempt to upgrade the pay for all members of the team including Mr. Washington is unsubstantiated, as the pages referenced are not part of the record submitted to the court. See Def.’s Mot. at 16. Therefore, the statement is not credited as fact.
12 requirement is not jurisdictional, it serves as a jurisprudential bar designed to allow the agency to
review and, if warranted, to correct its mistakes, and to conserve the court’s resources. Hidalgo
v. FBI, 344 F3d 1256, 1258-59 (D.C. Cir. 2003). The Secretary has submitted a declaration from
the FOIA Officer at WRAMC attesting that in response to his multiple FOIA requests,
Mr. Washington received several hundred pages of responsive documents and did not lodge an
administrative appeal. See Bizzell Decl. ¶ 17. Therefore, Mr. Washington’s FOIA claim will be
dismissed because it fails to state a claim upon which relief may be granted because the plaintiff
did not exhaust his administrative remedies before him filing suit on the claim. Id.
Breach of contract claim
The amended complaint asserts a breach of the settlement contract entered into between
the Secretary and Mr. Washington in a prior case. As a discrimination claim, it was not
exhausted in the administrative EEO process, and therefore cannot be heard here now. However,
brought as an independent breach of contract claim, the matter need not be first raised or
exhausted in the administrative process. Therefore, the basis for the defendant’s argument that
the claim should be dismissed because it was abandoned in the EEO administrative complaint
process is ineffective to dispose of the allegation entirely. See Def.’s Mot. at 14; Reply at 15.
The amended complaint, however, contains only a conclusory allegation of a breach of
contract, devoid of any factual allegations, and does not meet the minimum requirements of Rule
8 of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules of Civil Procedure
requires that a complaint contain a short and plain statement of the grounds upon which the
court’s jurisdiction depends, a short and plain statement showing that the pleader is entitled to
relief, and a demand for judgment for the relief the pleader seeks to obtain. Fed. R. Civ. P. 8(a).
13 The purpose of the minimum standard of Rule 8 is to give fair notice to the defendants of the
claim being asserted, sufficient to prepare a responsive answer, to prepare an adequate defense
and to determine whether the doctrine of res judicata applies. Brown v. Califano, 75 F.R.D. 497,
498 (D.D.C. 1977). The plaintiff’s opposition contains some factual allegations, but the plaintiff
is not entitled as of right to further amend his complaint, and he has not sought leave to do so as
required by Federal Rule of Civil Procedure 15. Even pro se litigants must comply with the
Federal Rules of Civil Procedure. Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987).
Therefore, the plaintiff will be allowed to file, within 30 days of this order, a motion for leave to
further amend the complaint with a breach of contract claim, attaching the proposed breach of
contract claim as an exhibit. Failure to move for leave to amend and submit the proposed breach
of contract claim within the time allowed will result in the breach of contract claim being
dismissed pursuant to the court’s authority under 28 U.S.C. § 1915(e) for failure to state a claim
upon which relief may be granted.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON United States District Judge