United States District Court, D. South Carolina, Columbia Division
Clarence B. Jenkins, Jr., Plaintiff,
S.C. Department of Employment Workforce; S.C. Budget and Control Board; Office of South Carolina Governor, Defendants.
J. GOSSETT. UNITED STATES MAGISTRATE JUDGE.
plaintiff, Clarence B. Jenkins, Jr., a self-represented
litigant, filed this employment action against the
above-captioned defendants. This matter is before the court
pursuant to 28 U.S.C. § 636(c) and Local Civil Rule
73.02(B)(1) (D.S.C.) for final adjudication with the consent
of the parties. Pending before the court is the motion of
Defendant South Carolina Department of Employment Workforce
(“SCDEW”) to dismiss the Complaint. (ECF No. 31.)
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), the court advised Jenkins of the summary judgment and
dismissal procedures and the possible consequences if he
failed to respond adequately to the defendant's motion.
(ECF No. 33.) Jenkins filed a response in opposition. (ECF
No. 44.) Having reviewed the parties' submissions and the
applicable law, the court concludes that Jenkins's Title
VII claim against SCDEW must be dismissed under Rule 12(b)(6)
because it was not timely filed.
indicates that between 2011 and 2018, he sought employment
with SCDEW but he consistently was rejected when he applied
for jobs. (Am. Compl., ECF No. 11 at 5.) Plaintiff alleges
SCDEW incorrectly barred him from applying for further
positions because it “falsely applied the
classification of nepotism to my master profile.”
(Id.) Plaintiff further alleges, quoted verbatim,
“ ‘Barred from applying' and ‘does not
meet minimum qualification' applied by SCDEW and
willingly known by” the South Carolina Budget and
Control Board and the Office of the South Carolina
Governor. (Id. at 6.) By previous order, the court
construed Jenkins's Complaint as attempting to assert a
claim pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e,
et seq., for failure to hire, retaliation, and
“deprivation.” (Order at 1, ECF No. 17 at 1; Am.
Compl., ECF No. 11 at 3-4; see also Order, ECF No.
motion, the defendant seeks dismissal of Jenkins's claims
based on Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Dismissal under Federal Rule of Civil Procedure
12(b)(1) examines whether the complaint fails to state facts
upon which jurisdiction can be founded. It is the
plaintiff's burden to prove jurisdiction, and the court
is to “regard the pleadings' allegations as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for
summary judgment.” Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) examines the legal sufficiency of the facts alleged
on the face of the plaintiff's complaint. Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To
survive a Rule 12(b)(6) motion, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “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 Twombly, 550 U.S. at 570). A
claim is facially plausible when the factual content allows
the court to reasonably infer that the defendant is liable
for the misconduct alleged. Id. When considering a
motion to dismiss, the court must accept as true all of the
factual allegations contained in the complaint. Erickson
v. Pardus, 551 U.S. 89, 94 (2007). The court “may
also consider documents attached to the complaint,
see Fed.R.Civ.P. 10(c), as well as those attached to
the motion to dismiss, so long as they are integral to the
complaint and authentic.” Philips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)
(citing Blankenship v. Manchin, 471 F.3d 523, 526
n.1 (4th Cir. 2006)).
while the federal court is charged with liberally construing
a complaint filed by a pro se litigant to allow the
development of a potentially meritorious case, see,
e.g., Erickson, 551 U.S. 89, the
requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege
facts which set forth a federal claim, nor can the court
assume the existence of a genuine issue of material fact
where none exists. Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
the parties consented to proceeding before a magistrate judge
for final adjudication of all matters, the assigned
magistrate judge issued a Report and Recommendation
determining that any claims asserted against Defendants South
Carolina Budget and Control Board and Office of South
Carolina Governor should be summarily dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). The Report and
the plaintiff's objections thereto were still pending
before the assigned district judge for consideration when he
referred it to the assigned magistrate judge as a consent
case under § 636(c). For the reasons contained in the
Report, the plaintiff's claims against those defendants
are hereby summarily dismissed. Plaintiff's objections
are without merit and do not warrant a different result.
Timeliness of Remaining Claim (Title VII Against
charge is filed with the Equal Employment Opportunity
Commission (“EEOC”), the EEOC must “notify
the person aggrieved and within ninety days after
the giving of such notice a civil action may be brought
against the respondent.” 42 U.S.C. § 2000e-5(f)(1)
(Title VII) (emphasis added). The record reflects that
Jenkins received his right-to-sue letter from the EEOC on
December 12, 2014 and filed his Complaint on July 9,
2018-over three years later. (Am. Compl., ECF No. ...