RICHARD D. BENNETT, District Judge.
The present action consists of two consolidated cases.
Pending before this Court is Defendant Simpler's Motion to Dismiss (ECF No. 17). In the pending Motion to Dismiss, Simpler moves to dismiss Plaintiff Emmanuel Thompson's Complaint. Generally, the consolidation of cases "is permitted as a matter of convenience and economy in administration, [but] . . . does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Intown Properties Mgmt., Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168 (4th Cir. 2001) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933)). Yet, in the interests of judicial economy and convenience, a party need not file a dispositive motion in each action. Weststeyn Dairy 2 v. Eades Commodities Co., 280 F.Supp.2d 1044, 1074 (E.D. Cal. 2003). Accordingly, this Court will construe Simpler's Motion to Dismiss as addressed to both pro se Plaintiffs Thompson and McDonald.The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, Defendant Gary Simpler's Motion to Dismiss (ECF No. 17) is GRANTED. Plaintiff Emmanuel Thompson and Plaintiff Karl McDonald's respective claims against Defendant Simpler are accordingly DISMISSED and Simpler is dismissed from this consolidated action.
This Court accepts as true the facts alleged in Plaintiffs' complaints.
Plaintiffs allege that they suffered discrimination on the basis of their race while stationed, through their employment with GS4 American's Waken Hut Service ("Waken Hut") at Defendant NRC. At the time of the alleged discriminatory conduct,
In response to Simpler's alleged actions, Plaintiffs filed a written complaint of racial discrimination in January 2010.
Plaintiffs claim that Simpler continued to make racially-charged derogatory comments to them. Id. ¶ 13. Thompson and McDonald consequently filed another written complaint in April 2011 and met with Branch Chief Fenton to discuss their complaint. Id. Branch Chief Fenton then allegedly told the Plaintiffs that she would terminate Simpler. Id. Plaintiffs assert that "upper level management" at NRC, including Pretzello, blocked Simpler's termination. Id. Subsequently, Branch Chief Fenton was allegedly "removed, relocated, and/or terminated." Id. Thompson and McDonald also claim they suffered demotions and pay cuts. Id. On September 15, 2011, they were discharged for alleged "timesheet falsification." Id. ¶ 14. Plaintiffs contend that this justification was mere pretext for their wrongful termination. Id. ¶ 15.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction "where a claim fails to allege facts upon which the court may base jurisdiction." Davis, 367 F. Supp. 2d at 799. Where the challenge is factual, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
In a ruling on a motion to dismiss, this Court must accept the factual allegations in the plaintiff's complaint as true and construe those facts in the light most favorable to the plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a pro se litigant's complaint should not be dismissed unless it appears beyond doubt that the litigant can prove no set of facts in support of his claim that would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Yet, a plaintiff's status as pro se does not absolve him of the duty to plead adequately. See Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (citing Anderson v. Univ. of Md. Sch. Of Law, 130 F.R.D. 616, 617 (D. Md. 1989), aff'd, 900 F.2d 249, 1990 WL 41120 (4th Cir. 1990)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Supreme Court's recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "require that complaints in civil actions be alleged with greater specificity than previously was required." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
It appears that only Counts One and Five of Plaintiffs' Complaints are directed at Defendant Simpler.
Neither § 1981 nor § 1983 applies to individuals acting under color of federal law. Instead, § 1981 and § 1983 target individuals acting under color of state law only. See Middlebrooks v. Leavitt, 525 F.3d 341, 349 (4th Cir. 2008) (stating unequivocally that § 1981 does not "provide a remedy against federal officials"). This Court clearly applied this principle in Durham v. Rapp, 64 F.Supp.3d 740, 746 (D. Md. 2014), in which it distinguished federal officials acting under color of state law from federal officials acting under federal law and noted that unlike the former, the latter are not subject to suit under § 1983. See also Chin v. Wilhelm, 291 F.Supp.2d 400, 404 (D.Md.2003) (federal employee acting under color of federal law, rather than state law, not subject to suit under § 1983).
Here, Simpler, as a "Contracting Officer Technical Representative" for the NRC, was a federal employee acting under color of federal law when he allegedly discriminated against Thompson and McDonald. Plaintiffs have thus failed to state a claim for which relief may be granted under either § 1981 or § 1983.
Defendant Simpler further argues that even if Plaintiffs intended to assert a claim against him under Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388 (1981),
Although § 1983 does not specify a limitations period, this Court must look to Maryland law for the appropriate statute of limitations. Grattan v. Burnett, 710 F.2d 160, 162 (4th Cir. 1983); see also Arawole v. Gaye, Civ. A. No. PJM-02-167, 2002 WL 32356684, at *1 (D. Md. Feb. 5, 2005), aff'd 46 F. App'x 206 (explaining that courts apply the § 1983 limitations period to actions arising under Bivens). This Court, applying Maryland law, accordingly applies the three-year statute of limitations for civil actions, Md. Code Ann., Cts. & Jud. Proc. § 5-101. Arawole, 2002 WL 32356684, at *1. In contrast to the derivation of the statute of limitations from state law, the time of accrual of a civil rights action is a question of federal law. Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); Arawole, 2002 WL 32356684, at *1 ("Although the state statute of limitations applies, the time of accrual of the action is a federal question."). Federal law holds that the time of accrual is when the plaintiff knows or has reason to know of the injury which is the basis of the action. Cox, 529 F.2d at 50 (citing Young v. Clinchfield R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961)).
Accordingly, any Bivens-related claims by Plaintiffs are time-barred under Maryland's statute of limitations. At the latest, Plaintiffs' cause of action accrued on September 15, 2011—the date of their discharge—which constitutes Simpler's final alleged discriminatory act against Plaintiffs during their employment. See Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977) (concluding that the plaintiff's cause of action against her employer for discrimination accrued on or before the date she was given a termination notice and noting that under applicable federal law, the time of accrual is that point in time when the plaintiff knows or has reason to know of the injury which is the basis of the action). Under the applicable three-year statute of limitations, Plaintiffs were thus required to file any action by September 15, 2014. Yet, Thompson and McDonald filed their Complaints some eight months later, on May 6, 2015 and May 11, 2015, respectively. They, therefore, fail to state a claim for relief under Bivens.
Finally, to the extent that Plaintiffs assert claims against Simpler in his individual capacity pursuant to Title VII of the Civil Rights Act of 1964,
In sum, in their respective communications with this Court, neither Plaintiff provides any facts to rebut Simpler's arguments. This Court shall, therefore, grant Simpler's Motion to Dismiss, as Plaintiffs have failed to state a claim against Simpler for which relief may be granted under 42 U.S.C. §§ 1981, 1983, Bivens, or Title VII.
For the reasons stated above, Defendant Gary Simpler's Motion to Dismiss (Member Action ECF No. 17) is GRANTED. Plaintiff Emmanuel Thompson and Plaintiff Karl McDonald's respective claims against Defendant Simpler are accordingly DISMISSED and Simpler is dismissed from this consolidated action.
A separate Order follows.