United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Judge
the Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 67) recommending
the Court grant in part, deny in part Defendants' motions
to dismiss. For the reasons set forth below, the Court adopts
R & R as the order of the Court and dismisses part of
Plaintiff s complaint.
a pro se individual, filed the instant action
asserting claims of discrimination against Defendants.
Plaintiff is a former employee of Defendant Magellan Health,
Inc. Plaintiff alleges she is an African-American female who
is over the age of forty. In her first and second causes of
action, she asserts Defendants discriminated against her on
the basis of race and sex, in violation of Title VII of the
Civil Rights Act of 1965, 42 U.S.C. § 2000e, et seq.
(Dkt. No. 1 at 14-15.) In her third cause of action,
Plaintiff alleges she was discriminated against due to her
age in violation of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 626, et seq. (Id. at 15.)
In her fourth cause of action, she alleges she was retaliated
against in violation U.S.C. § 1981 and Title VII.
(Id. at 15-16.) Multiple defendants filed motions to
dismiss Plaintiffs claims.
Magellan Health, Inc., Magellan Health Services, Inc. and
Magellan Healthcare, Inc. ("Magellan Defendants")
filed a partial motion to dismiss pursuant to Rule 12(b)(1)
and 12(b)(6). (Dkt. No. 30.) Defendant Barry Morgan Smith
filed a motion to dismiss pursuant to Rule 12(b)(6). (Dkt.
No. 39.) Defendants Richard Spencer and the United States
Marine Corps filed a motion to dismiss and/or in the
alternative motion for summary judgment. (Dkt. No. 46.)
Defendants Douglas Foita and Jennifer Friedrich filed a
motion to dismiss pursuant to Rule 12(b)(5). (Dkt. Nos. 54.)
Defendant Douglas Foita filed a separate motion to dismiss
pursuant to Rule 12(b)(5) and 12(b)(6) (Dkt. No. 57.)
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1). This Court must make
a de novo determination of those portions of the R
& R Plaintiff specifically objects. Fed.R.Civ.P.
72(b)(2). Where Plaintiff fails to file any specific
objections, "a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S.C Dept of Corr.,
No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C.
Mar. 12, 2015). See also Camby v. Davis, 718 F.2d
198, 200 (4th Cir.1983). Plaintiff filed objections in this
case and the R & R is reviewed de novo.
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). 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 viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep't
of Social Services, 901 F.2d 387 (4th Cir. 1990).
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses.... Our inquiry then
is limited to whether the allegations constitute 'a short
and plain statement of the claim showing that the pleader is
entitled to relief" Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation
marks and citation omitted). In a Rule 12(b)(6) motion, the
Court is obligated to "assume the truth of all facts
alleged in the complaint and the existence of any fact that
can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction challenges the jurisdiction of a court to
adjudicate the matter before it. Arbaugh v. Y & H
Corp.,546 U.S. 500, 514 (2006). A challenge to
subject-matter jurisdiction may contend either (1) that the
complaint fails to allege facts sufficient to establish
subject matter jurisdiction or (2) "that the
jurisdictional allegations of the complaint [are] not
true." Adams v. Bain,697 F.2d 1213, 1219 (4th
Cir. 1982). Where the sufficiency of the jurisdictional
allegations in the complaint is challenged facially,
"the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction."
Kerns v. United States,585 F.3d 187, 192 (2009).
If, however the defendant contends "that the
jurisdictional allegations of the complaint [are] not
true," the plaintiff bears the burden to prove facts
establishing jurisdiction and the district court may
"decide disputed issues of fact." Id. In
that case, ...