Pone v. Town of Hope Mills

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:18-CV-558-FL

JOHN D. PONE, JR., )

)

Plaintiff, )

)

v. )

) ORDER

TOWN OF HOPE MILLS and MELISSA )

ADAMS, in her individual and personal )

capacity, )

)

Defendants. )

This matter is before the court on defendants’ motion to dismiss for failure to state a claim

(DE 23), defendants’ motion to strike second amended complaint (DE 30), and plaintiff’s motion

to file second amended complaint (DE 36). The motions have been briefed fully, and the issues

raised are ripe for ruling. For the following reasons, defendants’ motions are granted and

plaintiff’s motion is denied.

STATEMENT OF THE CASE

Plaintiff commenced this action on November 20, 2018, and filed the operative amended

complaint on April 17, 2019, asserting claims against defendants under 42 U.S.C. § 1983 for

violation of his rights under the First and Fourteenth Amendments to the United States Constitution

and under the North Carolina Constitution, arising from plaintiff’s suspension from his position as

a firefighter for defendant Town of Hope Mills (the “Town”), and termination by Town Manager,

defendant Melissa Adams (“Adams”).1 Plaintiff seeks reinstatement, back pay, compensatory

damages, costs, injunctive relief, and jury trial.

Defendants filed the instant motion to dismiss for failure to state a claim, pursuant to

Federal Rule of Civil Procedure 12(b)(6), on May 31, 2019, relying on plaintiff’s notice of

termination and a Town personnel policy. Plaintiff responded to the motion to dismiss, and filed

a second amended complaint on July 9, 2019. Defendants replied in support of their motion to

dismiss and filed the instant motion to strike the second amended complaint on July 23, 2019.

Plaintiff responded to the motion to strike on August 15, 2019, and filed the instant motion

for leave to file second amended complaint on August 16, 2019. Defendants replied in support of

their motion to strike and responded in opposition to plaintiff’s motion to amend on August 29,

2019.

STATEMENT OF FACTS

The facts alleged in the operative amended complaint may be summarized as follows.

Plaintiff was a firefighter for the town for approximately 13 years, from August 2004 to July 2017.

He held the positions of Certified Level Two Firefighter, Acting Lieutenant, and Acting Captain.

“In those positions, he commanded company firefighters and other safety care individuals;

identified hazardous materials and complied with organization, healthcare and legal standards in

handling, packaging and moving hazardous materials; provided direct patient care in emergency

situations, ensured the safety and comfort of patients while administering emergency stabilization

procedures and educated subordinates, peers and the community through training programs.”

(Am. Compl. ¶ 12).

1 In original complaint, plaintiff named as defendant former Town Manager, John Ellis, which individual is not

named in the operative amended complaint. Defendants moved to dismiss the original complaint on February 25,

2019, which motion was denied as moot due to plaintiff’s filing of the operative amended complaint.

In October 2015, plaintiff “sent an anonymous letter” to the Hope Mills Town Council

(“Town Council”) and two candidates running for office, which addressed “Plaintiff’s concerns

with regards to the leadership of Deputy Chief Steve Lopez (‘Chief Lopez’) as a Safety

Coordinator for Hope Mills and as a safety decision-maker for the Fire Department.” (Id. ¶ 13).

The letter, in part, stated:

a. There is ‘a lack of safety-toed boots to reduce cost, an ongoing issue with breaks

on the ladder truck, integrity concerns [with the] Self Contained Brakes Apparatus

being solved with electrical tape . . .’

b. ‘Most of the members of the fire department are members at the other Fire

Departments as volunteers or employees.’

c. ‘In [Plaintiff s] personal opinion, the town has failed [them] as career firefighters

by allowing [Chief Lopez] to continue with his reckless behavior.’

d. ‘[Chief Lopez] is putting firefighter’s career and lives in jeopardy by making

priorities in cleaning the fire department rather than training. By signing names to

training that were not present during the training evolution. Training is the most

important thing we do outside of an actual emergency.’

e. ‘. . . our newer member’s lack of training and the level of firefight training is

subpar.’

f. ‘. . . what has been the case for years is backlash for someone choosing to speak

out.’

g. Plaintiff has posed questions inquiring, ‘. . . where does the money come from to

fund the Search and Rescue Team?’

h. ‘Our community deserves better than this.’

i. ‘This fire department and the citizens of the Town of Hope Mills will suffer

because of this.’

(Id. (brackets and internal quotations in original)).

On January 1, 2016, “then Hope Mills Town Manager, John Ellis, placed Plaintiff on

administrative leave because he was ‘going around to other firefighters asking them to sign a letter

critical of Deputy Chief Lopez.’” (Id. ¶ 15). On January 5, 2016, “Fire Department officials

discovered that Plaintiff was responsible for sending the anonymous letter and discovered that

Plaintiff had sent that same letter to Lieutenant Jeff Cannady.” (Id. ¶ 19). “As a result of Plaintiff’s

distribution of the letter about Plaintiff’s safety concerns, Chief Charles Hodges sent a letter to the

then Hope Mills Town Manager, John Elis, recommending the termination of Plaintiff on the

grounds that the failed to follow directives to refrain from discussing the matters in the October

2015 letter, and that Plaintiff had displayed ‘deceitful behavior,’ and ‘gross insubordination.’” (Id.

¶ 20). “Plaintiff was placed on administrative leave.” (Id.).

Over one year later, on February 1, 2017, human resources administrator for the town

notified plaintiff that “he would be permitted to return to work a fire fighter, a lower-paying

position than he held when he left as the Acting Captain of C-Shift.” (Id. ¶ 21). Plaintiff was not

able to return to work as scheduled because in the interim he injured himself playing basketball.

Plaintiff sought and received leave under the Family Medical Leave Act from March 6, 2017

through May 30, 2017.

Plaintiff was unable to return to work at the conclusion of his medical leave because his

doctor had not released him. On June 21, 2017, plaintiff’s doctor released plaintiff from his care,

but not to return to work until August 1, 2017. “Plaintiff was advised that there was no light duty

work available for him at the Hope Mills Fire Department.” (Id. ¶ 25). Plaintiff’s additional

medical leave was approved.

On July 24, 2017, defendant Adams, then Town Manager, sent plaintiff a letter “advising

that he was being terminated because his ‘work’ at another fire station while he was on paid leave

was in violation of Section 15 of the Town’s Personnel Policy,” which states as follows:

The work of the town will take precedence over other occupational interests of

employees. The town has no intention of attempting to regulate what an employee

does during his own time away from the job so long as off-duty activities do not

represent a conflict of interest, reflect discredit on the town or keep them from being

able to perform their wok for the town. All outside employment for salaries, wages,

or commission and all self-employment must be approved by the department head

and recommended to the town manager for his final approval. In no case may an

employee use town equipment or town property in connection with any outside

employment unless expressly authorized by the town manager. Violation of the

policy may be grounds for disciplinary action up to and including dismissal. Please

refer to the ‘use of town equipment policy’ located in the administrative policies

manual for specific procedural requirements.

(Id. ¶ 26).

“During Plaintiff’s administrative leave between January, 2016 and March, 2017, he

continued to volunteer as a Fire Fighter Captain at Grays Creek Fire Department without pay,

performing administrative duties.” (Id. ¶ 27). “[Y]ears earlier Plaintiff had received authorization

from the Chief of the Hope Mills Fire Department to volunteer at Grays Creek Fire Department.”

(Id. ¶ 28). Plaintiff was not on the payroll at Grays Creek Fire Department and had never received

a salary from them in the over 20 years that he had served as a volunteer firefighter for Grays

Creek Fire Department.

COURT’S DISCUSSION

A. Standard of Review

“To survive a motion to dismiss” under Rule 12(b)(6), “a 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations

omitted).

B. Analysis

1. First Amendment Claim

Plaintiff asserts that defendants violated plaintiff’s First Amendment rights when they

placed him on administrative leave and subsequently terminated him in retaliation for “his

involvement with the letter and petition he was circulating.” (Compl. ¶ 33).

A public employee must establish four elements to state a claim for deprivation of First

Amendment rights flowing from an adverse employment action. “First, to trigger First Amendment

protection, the speech at issue must relate to matters of public interest.” Hanton v. Gilbert, 36 F.3d

4, 6 (4th Cir.1994) (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Second, the “employee’s

interest in First Amendment expression must outweigh the employer’s interest in efficient

operation of the workplace.” Hanton, 36 F.3d at 6–7 (citing Pickering v. Bd. of Ed. of Twp. High

Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 568 (1968)). “Third, the employee must establish

. . . that he was deprived of a valuable government benefit or adversely affected in a manner that,

at the very least, would tend to chill his exercise of First Amendment rights.” Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 352 (4th Cir. 2000). “Finally, the employee ‘must

establish a causal relationship between the protected expression and the retaliation: that the

protected speech was a ‘substantial factor’ in the decision to take the allegedly retaliatory action.’”

Id. (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 248 (4th Cir.1999)).

Defendants assert plaintiff fails to state a claim against them on several grounds. The court

addresses each defendant in turn.

a. Defendant Adams

Plaintiff’s First Amendment claim against defendant Adams fails as a matter of law most

significantly on the third and fourth elements of the claim. As an initial matter, defendant Adams

had no alleged role in plaintiff’s suspension in January 2016. Thus, plaintiff has not alleged that

defendant Adams took any action, with respect to the suspension, that “adversely affected”

plaintiff’s employment benefits. Goldstein, 218 F.3d at 352. Indeed plaintiff does not assert in

response to motion to dismiss any basis for maintaining this portion of his claim against defendant

Adams.

Next, with respect to plaintiff’s termination, plaintiff has not alleged any facts plausibly

permitting an inference of “a causal relationship between the protected expression and the

retaliation: that the protected speech was a substantial factor in the decision to take the allegedly

retaliatory action.” Id. (quotations omitted). According to the amended complaint, plaintiff was

suspended in January 2016 for allegedly circulating a letter in October 2015, and for other

communications made in and up to January 2016. (See Am. Compl. ¶¶ 13, 15, 19-20). Plaintiff

was placed on administrative leave for over one year, was first allowed to return to work as a

firefighter, and then was twice granted medical leave in March and June 2017. (See id. ¶¶ 21-25).

Because nearly a year and a half passed from the initiation of plaintiff’s suspension to the

termination, with intervening employment actions and a change in identity of Town Manager, the

facts alleged do not permit an inference that defendant Adams, on behalf of defendant Town,

terminated plaintiff due to his exercise of First Amendment rights in and before January 2016. See

Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“A

lengthy time lapse between the employer becoming aware of the protected activity and the alleged

adverse employment action, as was the case here, negates any inference that a causal connection

exists between the two.”). In addition to the timing of the decision, and intervening

employment actions, there is nothing alleged about the reasons for the termination or the manner

in which the termination was communicated giving rise to a plausible inference of a causal

connection. Defendant Adams advised plaintiff “that he was being terminated because his ‘work’

at another fire station while he was on paid leave” was in violation of the Town’s personnel policy.

(Id. ¶ 26). Plaintiff’s termination, thus, related on its face to plaintiff being out on medical leave

for the Town, while engaging in “‘work’ at another fire station.” (Id.). Thus the context of the

termination does not give rise to a plausible inference of a causal link between plaintiff’s conduct

and the period prior to his administrative leave. See, e.g., Goldstein, 218 F.3d at 356 (finding no

inference of causal connection where suspending entity “articulated a basis for the suspension

separate and independent from protected speech”).

Plaintiff suggests that because he was previously authorized to do volunteer work at

another fire department, the alleged justification for the termination is incorrect. The alleged

reason for the termination, however, was not only engaging in volunteer work, but also doing so

while representing to be out on paid medical leave for the Town. (Id.; see also Def’s Resp. Ex.

1).2 Plaintiff also suggests that he actually had ability to do administrative volunteer work, but

could not return to duty for the Town. (See Am. Compl. ¶¶ 25, 27, 30). This is insufficient to

give rise to an inference defendant Adams did not honestly believe the reasons given for

termination, however, particularly given the intervening time and actions between the termination

and plaintiff’s speech in 2015 and January 2016. See, e.g., Goldstein, 218 F.3d at 357 (noting

2 Where plaintiff expressly references in his complaint the July 24, 2017, termination letter sent by defendant

Adams to plaintiff, and this letter is integral to plaintiff’s termination claim, (see Am. Compl. ¶ 26), and not disputed

as inauthentic, the court considers it also in ruling on the motion to dismiss. In the letter, defendant Adams states

“Your representations to the Town that you were unable to return to work, while at the same time performing work

for another Fire Department, is a serious violation of the Town’s trust.” (DE 24-1).

defendants “need not have been correct in their apprehension of the facts underlying the articulated

justifications” for a termination, so long as “held honestly and in good faith”).

In sum, plaintiff fails to allege essential elements of his First Amendment claim against

defendant Adams. Therefore, this claim fails as a matter of law and must be dismissed.3

b. Defendant Town

“[A] municipality is subject to Section 1983 liability only when its ‘policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the [plaintiff’s] injury.’” Santos v. Frederick Cnty. Bd. of Comm’rs, 725

F.3d 451, 469-70 (4th Cir. 2013) (quoting Monell v. Dept. of Social Services of the City of New

York, 436 U.S. 658, 694 (1978)); see Walker v. Prince George’s Cty., MD, 575 F.3d 426, 431 (4th

Cir. 2009) (“[A] municipality’s liability arises only where the constitutionally offensive actions of

employees are taken in furtherance of some municipal policy or custom.”) (internal quotations

omitted).

“An official policy often refers to ‘formal rules or understandings that are intended to, and

do, establish fixed plans of action to be followed under similar circumstances consistently and over

time.’” Semple v. City of Moundsville, 195 F.3d 708, 712-13 (4th Cir. 1999) (quoting Pembaur v.

Cincinnati, 475 U.S. 469, 480 (1986)). “While municipal policy is most easily found in municipal

ordinances, ‘it may also be found in formal or informal ad hoc ‘policy’ choices or decisions of

municipal officials authorized to make and implement municipal policy.’” Edwards v. City of

Goldsboro, 178 F.3d 231, 244-45 (4th Cir. 1999) (quoting Spell v. McDaniel, 824 F.2d 1380, 1385

(4th Cir. 1987)). In addition, municipal policy may include “practices so persistent and widespread

as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011)

3 Because dismissal is warranted on this basis, the court does not reach defendant’s argument that plaintiff’s

alleged speech did not concern a matter of public interest, or that defendant Adams is entitled to qualified immunity.

Nevertheless, “[p]roof of a single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident includes proof that it was caused by an

existing, unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). By contrast, “where

the policy relied upon is not itself unconstitutional, considerably more proof than the single

incident will be necessary in every case to establish both the requisite fault on the part of the

municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.”

Id. at 824.

Plaintiff’s First Amendment claim against the Town fails as a matter of law because

plaintiff has not alleged he was injured by an unconstitutional policy or custom of the Town. As

an initial matter, with respect to plaintiff’s termination, where plaintiff has not alleged a claim

against defendant Adams, plaintiff’s claim against the Town based upon conduct of Adams

necessarily must fail. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Knight Estate of

Graham v. City of Fayetteville, 234 F. Supp. 3d 669, 692 (E.D.N.C. 2017).

With respect to plaintiff’s administrative leave, plaintiff has not alleged such placement on

leave, being a single alleged unconstitutional activity applied to him, was caused by a municipal

policy that is “itself unconstitutional.” Tuttle, 471 U.S. at 824. Plaintiff alleges he was placed on

administrative leave starting on January 1, 2016, by then Town Manager, John Ellis, because

plaintiff was “going around to other firefighters asking them to sign a letter critical of Deputy

Chief Lopez.” (Am. Compl. ¶ 15). Plaintiff also alleges that he was continued on administrative

leave after Chief Charles Hodges recommended termination on the ground that plaintiff “failed to

follow directives to refrain from discussing the matters in the October 2015 letter,” and displayed

“deceitful behavior” and “gross insubordination.” (Id. ¶ 20). These allegations, however, do not

permit an inference of an existing unconstitutional policy of the Town.

Plaintiff alleges that the Town “delegated all personnel actions to the Town Manager,” and

that the “Town Manager made decisions regarding personnel on behalf of the Town.” (Id. ¶ 7).

Plaintiff also notes that North Carolina law requires a Town Manager to exercise its delegated

authority “in accordance with such general personnel policies or ordinances as the Council may

adopt.” (Id.). However, there is nothing, in itself, unconstitutional about either of these policies

or procedural practices.

Plaintiff does not point to any facts permitting an inference that the alleged act of

suspension against plaintiff was taken pursuant to an established Town policy or practice. He

argues in his brief in opposition to dismissal that “the acts complained of represent the official

policy of the City.” (Pl’s Mem. (DE 28) at 12). But this conclusory assertion is not supported by

citation to any alleged policies of the Town regarding suspension of a Town employee, such as

plaintiff, for exercise of speech on any matter, including a matter of alleged public interest.

In addition, and in the alternative, plaintiff has not alleged an underlying constitutional

violation with respect to plaintiff’s administrative leave. As noted previously, to establish a First

Amendment claim based upon an adverse employment action against a government employee, a

plaintiff must allege, inter alia, that the “employee’s interest in First Amendment expression . . .

outweigh[s] the employer’s interest in efficient operation of the workplace.” Hanton, 36 F.3d at

6–7.

Factors relevant to this inquiry include whether a public employee’s speech (1)

impaired the maintenance of discipline by supervisors; (2) impaired harmony

among coworkers; (3) damaged close personal relationships; (4) impeded the

performance of the public employee’s duties; (5) interfered with the operation of

the institution; (6) undermined the mission of the institution; (7) was communicated

to the public or to coworkers in private; (8) conflicted with the responsibilities of

the employee within the institution; and (9) abused the authority and public

accountability that the employee’s role entailed.

Grutzmacher v. Howard Cty., 851 F.3d 332, 345 (4th Cir. 2017) (quotations omitted).

Here, based upon the circumstances alleged regarding imposition of administrative leave,

a combination of factors compels a determination as a matter of law that the Town’s interest in

efficient operation of the workplace in deciding to place plaintiff on administrative leave

outweighed plaintiff’s interest in First Amendment expression.4 On the one hand, the court

recognizes that the subject matter of some of the allegations voiced by plaintiff, which plausibly

implicate safety and training procedures at the fire department, weighs in favor of the balance of

protecting plaintiff’s free speech rights. See Goldstein, 218 F.3d at 355. On the other hand,

however, plaintiff’s alleged expression contained direct and serious criticism of a superior, Chief

Lopez, (Am. Compl. ¶ 13), and Chief Charles Hodges also sent a letter to then Town Manager

alleging “deceitful behavior” and “gross insubordination” by plaintiff. (Id. ¶¶ 15, 20). These

factors favor the Town’s alleged decision to place plaintiff on administrative leave to address a

personnel conflict. See Grutzmacher, 851 F.3d at 345 (“Carping criticism and abrasive conduct

have no place in a small organization that depends upon common loyalty—harmony among

coworkers”) (quotations omitted).

It is also an important factor to the balancing of interests in this instance that the then Town

Manager did not terminate plaintiff as recommended by the fire chief, but rather imposed only

“administrative leave,” and plaintiff continued on such leave for over a year until he was invited

to return to work as a firefighter and then allowed to transition, at plaintiff’s request, to a further

extended period of medical leave. (Id. ¶¶ 21-25).

4 The court assumes, without deciding, for purposes of the instant analysis that plaintiff’s expression “relate[s]

to matters of public interest,” Hanton, 36 F.3d at 6, and thus the court does not reach defendants’ arguments regarding

this element of plaintiff’s claims pertaining to the imposition of administrative leave.

Moreover, at the time, plaintiff was serving in a managerial position, as “Acting Captain

of C-Shift,” (Id. ¶ 15), with official duties bearing on safety and training programs. (Id. ¶ 12). The

fact that plaintiff was himself in a managerial capacity, with official duties bearing on safety and

training, but also criticizing superiors on the same topics, further weighs heavily to the Town’s

interest in maintaining harmony within the fire department. See Grutzmacher, 851 F.3d at 346

(“[T]he expressive activities of a highly placed supervisory employee will be more disruptive to

the operation of the workplace than similar activity by a low level employee with little authority

or discretion.”) (quotations omitted). “[F]ire companies have a strong interest in the promotion of

camaraderie and efficiency as well as internal harmony and trust, and therefore we accord

substantial weight to a fire department’s interest in limiting dissension and discord.” Id. at 345

(quoting Goldstein, 218 F.3d at 355). Thus, a balance of the factors in the circumstances alleged

compels a determination as a matter of law that the Town’s interest in maintaining efficient

workplace functioning by placing plaintiff on administrative leave outweighed plaintiff’s First

Amendment free speech interest.

In sum, plaintiff fails to allege a constitutional deprivation caused by any Town policy. In

addition, and in the alternative, plaintiff’s First Amendment claim against the Town fails as a

matter of law. Therefore, plaintiff’s First Amendment claim against the Town must be dismissed.

2. Fourteenth Amendment Claim

Plaintiff asserts a violation of his Fourteenth Amendment procedural due process rights,

on the basis that he had “a property interest in his employment with the Town” and his termination

without opportunity to be heard in advance deprived him of his property interest. (Compl. ¶¶ 51-

52). Plaintiff, however, fails to allege any “statute,” “ordinance,” or an express or “implied

contract” that creates a property interest in employment for plaintiff. Bishop v. Wood, 426 U.S.

341, 344 (1976). “[N]othing else appearing, an employment contract in North Carolina is

terminable at the will of either party.” Tully v. City of Wilmington, 370 N.C. 527, 539 (2018). In

opposing dismissal, plaintiff points to no allegations to the contrary. Therefore, plaintiff’s claim

under the Fourteenth Amendment must be dismissed as a matter of law.

3. State Law Claims

Plaintiff asserts a claim under the North Carolina Constitution, Article I, Section 14, for

violation of plaintiff’s free speech rights. However, Article I of the North Carolina Constitution

provides a direct cause of action to enforce the rights contained therein only where there is an

“absence of an adequate state remedy.” Corum v. Univ. of N.C., 330 N.C. 761, 782 (1992). An

adequate state law remedy exists where there is a cause of action, at common law or created by

statute, that provides plaintiff with “the possibility of relief” for the same injury alleged in the

direct constitutional claim. Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334,

340 (2009).

Here, the opportunity to assert a common law claim for wrongful discharge in violation of

public policy is an adequate state remedy that precludes plaintiff’s direct cause of action under the

North Carolina Constitution. See, e.g., Garner v. Rentenbach Constructors, Inc., 350 N.C. 567,

568-72 (1999). Plaintiff does not contend otherwise in opposing dismissal. Therefore, plaintiff’s

claim under the North Carolina Constitution must be dismissed as a matter of law.

4. Motion to Strike

Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its pleading only

“once as a matter of course.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its

pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.

15(a)(2). Here, since plaintiff had already filed an amended complaint once on April 17, 2019,

plaintiff was not permitted to file his second amended complaint on July 9, 2019, without consent

of defendants or leave of court. Accordingly, where plaintiff obtained neither consent nor leave,

defendants’ motion to strike is granted, and the clerk is DIRECTED to strike the second amended

complaint (DE 27).

5. Motion to Amend

“The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a). “In

the absence of any apparent or declared reason – such as undue delay, bad faith or dilatory motive

on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of

amendment, etc. – the leave sought should, as the rules require, be freely given.” Foman v. Davis,

371 U.S. 178, 182 (1962) (quotations omitted). With respect to futility, the court may deny leave

to amend “if the proposed amended complaint fails to state a claim under the applicable rules and

accompanying standards.” Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).

Here, the proposed second amended complaint differs from the first amended complaint

only in minor edits and additions, including in paragraphs 7, 15, 20, 33, and 40. These edits do

not change the court’s analysis of any of plaintiff’s claims. Indeed, some of the edits clarify the

facts to provide further justification for dismissal on the grounds set forth herein.

For example, the proposed second amended complaint adds the following allegation:

“[w]hile Plaintiff was on administrative leave, an investigation was undertaken regarding the

matters alleged in Plaintiff’s letter. Upon information and belief, the Town Manager resigned in

lieu of being terminated.” (Prop. 2nd Am. Compl. ¶ 20). This allegation further confirms: 1) the

absence of involvement by defendant Adams in imposing plaintiff’s administrative leave, 2) the

absence of any unconstitutional Town policy causing plaintiff’s alleged injury, and 3) the utility

of placing plaintiff on administrative leave while the allegations in his letter could be investigated,

thus further supporting balancing of interests in favor of maintaining workplace efficiency.

Other proposed additions to the second amended complaint highlighted by plaintiff in

support of the instant motion are conclusory statements or recitations of elements of the claim.

(See, e.g., Prop. 2nd Am. Compl. § 7 (“All actions taken against Plaintiff were pursuant to these

policies and represent the official policy of the Town.”); § 33 (“Defendants caused Plaintiff's

termination because of his involvement with drafting and distribution of the letter he was

circulating.”); § 40 (“But for Plaintiff's speech and protected activity, he would not have been

placed on leave or terminated.”)).

Accordingly, plaintiffs motion for leave to file second amended complaint must be denied

on the basis that the proposed amendments are futile. In addition, where plaintiff twice has had

the opportunity to seek leave to amend the complaint already, and those amendments have not

cured the deficiencies in plaintiff's claims, plaintiff's action must be dismissed with prejudice.

CONCLUSION

Based on the foregoing, defendants’ motion to dismiss for failure to state a claim (DE 23)

is GRANTED, defendants’ motion to strike second amended complaint (DE 30) is GRANTED,

and plaintiffs motion to file second amended complaint (DE 36) is DENIED. The clerk is

DIRECTED to strike plaintiff's second amended complaint filed at DE 27. Plaintiffs action is

DISMISSED WITH PREJUDICE. The clerk is DIRECTED to close this case.

SO ORDERED, this the 8th day of January, 2020.

United States District Judge

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