United States District Court, N.D. West Virginia
ORDER REJECTING REPORT AND RECOMMENDATION [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE
FACTUAL AND PROCEDURAL BACKGROUND
April 20, 2017, the pro se plaintiff, Vanessa Frogge
(“Frogge”), filed a complaint in the Magistrate
Court of Monongalia County, West Virginia, against the
defendant, Craig Fox (“Fox”) (Dkt. No. 3-1 at 1).
In the complaint, Frogge sought $10, 000 in damages due to
Fox's alleged discrimination at the Mountain Line Transit
Authority. Id. Because the action involved more than
$2, 500, Fox removed the case to the Circuit Court of
Monongalia County, West Virginia (“Circuit
Court”), under W.Va. Code § 50-4-8. Id.
at 15-17. Although Fox moved to dismiss Frogge's
complaint for failure to state a claim, the Circuit Court
granted Frogge leave to amend and denied Fox's motion as
moot (Dkt. No. 3-4).
August 29, 2017, Frogge filed an amended complaint, alleging
that Fox, “doing business as the Mountain Line Transit
Authority, ” had discriminated against her in violation
of the Americans with Disabilities Act (“ADA”)
(Dkt. No. 1-1). According to Frogge, she requested a route
deviation from Mountain Line Transit Authority due to her
neck condition, but Fox denied the request for the stated
reason that Frogge's apartment complex does not have
“an acceptable place to turn a bus.” Id.
at 1-4. Frogge disagrees with this assessment and asserts
that Fox did not consider her disability when making the
decision to deny her request for a route deviation.
Id. at 4-6. She alleges that Fox discriminated
against her in violation of the ADA, and that Fox was acting
outside the scope of his employment. Id. at 6-7.
Frogge's ADA allegations, Fox promptly removed the case
to this Court on September 8, 2017, in reliance on federal
question jurisdiction under 28 U.S.C. § 1331 (Dkt. No.
1). Pursuant to 28 U.S.C. § 636 and the local rules, the
matter was referred to the Honorable Michael J. Aloi, United
States Magistrate Judge, for initial review (Dkt. No. 2). Fox
moved to dismiss Frogge's amended complaint on September
15, 2017 (Dkt. No. 4).
report and recommendation (“R&R”) entered on
February 27, 2018, Magistrate Judge Aloi recommended that the
Court grant Fox's motion (Dkt. No. 16). First, the
magistrate judge reasoned that Frogge cannot maintain a cause
of action under the ADA against Fox in his individual
capacity. Id. at 6. Second, he concluded that Frogge
failed to allege sufficient facts to state a plausible claim
for relief under the ADA. Id. at 6-8. The Court
received Frogge's timely objections on March 12, 2018
(Dkt. No. 18).
STANDARD OF REVIEW
Civ. P. 12(b)(6) allows a defendant to move for dismissal on
the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing a
complaint, the Court “must accept as true all of the
factual allegations contained in the complaint.”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). “[A] complaint must contain ‘enough
facts to state a claim to relief that is plausible on its
face.'” Id. at 188 n.7 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 547 (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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A motion to dismiss “does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992).
Court will review de novo any portions of the magistrate
judge's Report and Recommendation to which a specific
objection is made . . . and the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the [parties do] not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D.W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Moreover, the Court must
liberally construe pro se pleadings. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Loe v.
Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). Having
conducted a de novo review of the R&R and the
record, the Court concludes that, as a pro se
plaintiff, Frogge has alleged sufficient facts to state a
claim for discrimination under the ADA.
42 U.S.C. § 12132 provides that “no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity.” A “public entity” includes
“any department, agency, special purpose district, or
other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1)(B).
“[I]ndividuals sued in their individual capacity are
not public entities.” Carter v. Maryland, No.
JKB-12-1789, 2012 WL 6021370, at *5 (D. Md. Dec. 3, 2012).
But “a suit against a state official in his or her
official capacity . . . is no different from a suit against
the State itself.” Will v. Michigan Dep't of
State Police, 491 U.S. 58, 71 (1989).
concedes that Mountain Line Transit Authority is an
instrumentality of Monongalia County, West Virginia,
organized to provide public transportation (Dkt. No. 4-1 at
5). He contends nonetheless that, because he “is being
sued in his individual capacity, ” the amended
complaint fails to state a claim against a “public
entity” under the ADA (Dkt. No. 4-1 at 5-6). This
argument is not persuasive. The amended complaint plainly
alleges that Fox was “doing business as the Mountain
Line Transit Authority” (Dkt. No. 1-1 at 1). As it
must, the Court liberally construes this allegation as a
claim against Fox in his official capacity as the employee of
a public entity. Estelle, 429 U.S. at 106.