Kruise v. United States Department of the Army

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JAY KRUISE, :

Plaintiff : CIVIL ACTION NO. 3:21-0543

v. : (JUDGE MANNION)

UNITED STATES DEPARTMENT :

OF THE ARMY, et al.,

:

Defendants

MEMORANDUM

Presently before the court are two Reports and Recommendations

(“R&R’s”) from Judge Arbuckle dated September 8, 2022, and February 3,

2023. (Docs. 32 & 50, respectively). The September 2022 R&R, (Doc. 32),

recommends that the defendants’ motion to dismiss Plaintiff’s amended

complaint, (Doc. 18), be granted in part and denied in part, and that

Plaintiff’s January 16, 2022, motion to amend his complaint, (Doc. 25), be

denied. Plaintiff filed objections to the report, (Doc. 36), objecting to Judge

Arbuckle’s recommendation that the court dismiss his retaliation (Count III)

and due process (Count IV) claims. Defendants filed a brief in opposition

to Plaintiff’s objections, urging the court to adopt the recommendation of

dismissal for those two counts. (Doc. 41). Defendants also filed their own

objections to the report, (Doc. 40), objecting to Judge Arbuckle’s

recommendation that the court allow Plaintiff’s hostile work environment

(Count II), disparate treatment (Count V), and failure to accommodate

(Count I) claims to proceed. Plaintiff filed a brief in opposition to

Defendants’ objections, urging the court to adopt the recommendation that

those claims proceed.

On January 27, 2023, this court issued an order holding the

September 2022 R&R in abeyance and remanding this matter back to

Judge Arbuckle for a decision regarding Plaintiff’s August 28, 2022, motion

to amend, (Doc. 30), which Plaintiff filed 11 days before the September

2022 R&R. Seeing no response from the defendants, Judge Arbuckle

deemed Plaintiff’s August 28 motion to amend unopposed and granted the

same. (Doc. 48). In accordance with Judge Arbuckle’s order, the Clerk of

Court docketed Plaintiff’s second amended complaint. (Doc. 49). The

second amended complaint is virtually identical to the amended complaint,

except that it adds a new claim under the Privacy Act (Count VI).

Next, Judge Arbuckle issued his February 2023 R&R, which

recommended the defendants’ motion to dismiss, (Doc. 18), be granted in

part and denied in part for the same reasons set forth in his September

2022 R&R. In the lone departure from his September 2022 R&R, Judge

Arbuckle also recommended that Plaintiff’s January 16 motion to amend be

dismissed as moot given “the subsequent developments in this case”—i.e.,

Judge Arbuckle’s granting of Plaintiffs August 28 motion to amend.1 The

court finds no error in Judge Arbuckle’s recommendation that Plaintiffs

January 16 motion to amend, (Doc. 25), be dismissed as moot since Judge

Arbuckle granted Plaintiff’s August 28 motion to amend, and the court will

ADOPT that recommendation.

Defendants object to the February 2023 R&R in part because “[Judge

Arbuckle] should have allowed the Army to object to the filing of a Third

Amended Complaint”—i.e., Plaintiff’s August 28 motion to amend, (Doc.

30). Defendants’ objection is in reference to Judge Arbuckle’s non-

dispositive order granting Plaintiff’s August 28 motion to amend. (Doc. 48).

Review of that order is outside the scope of this court’s review of the

1 Both Plaintiff and the defendants filed objections to the February

2023 R&R, (Docs. 51 & 52, respectively), and Plaintiff responded to the

defendants’ objections, (Doc. 55). Plaintiff’s objections are mostly repeats

of his objections to the September 2022 R&R, except he attempts to add

an additional objection to Judge Arbuckle’s recommendation that his

disparate treatment claim (Count V) be dismissed in part. Plaintiff did not

object to this finding in the September 2022 R&R; thus, he waived this

objection since the February 2023 R&R contains the same findings on this

count as the September 2022 R&R. Regardless, Plaintiff’s objection does

not demonstrate error on the part of Judge Arbuckle’s recommendation with

respect to Count V, and the court will adopt the sound reasoning of Judge

Arbuckle with respect to that claim.

February 2023 R&R, which only dealt with documents 18 (motion to

dismiss) and 25 (January 16 motion to amend). The proper procedure for

appealing a non-dispositive order from a magistrate judge can be found in

Local Rule 72.2, “Appeals from Non-Dispositive Orders of Magistrate

Judges.” Defendants’ concerns may be nonetheless alleviated by Judge

Arbuckle following remand of this case for further case management if he

determines that, in the interests of justice, Defendants should be given an

opportunity to file a motion to dismiss Plaintiff’s Privacy Act claim—the lone

claim added to Plaintiff’s second amended complaint which Defendants’

previously-filed motion to dismiss did not and could not have addressed.2

Based on the court’s review of the record, the court will ADOPT IN

ITS ENTIRETY Judge Arbuckle’s February 2023 R&R, and NOT ADOPT

as moot the September 2022 R&R. The court will GRANT in part and

DENY in part Defendants’ motion to dismiss, (Doc. 18), as explained

below, and DISMISS as moot Plaintiff’s motion to amend, (Doc. 25), as

explained above. Accordingly, convoluted procedural history aside, the

procedure going forward rests on a neater foundation: Counts I through V

2 The court, respectfully, believes it would be in the interests of justice

to permit the defendants to file a motion to dismiss Plaintiff’s Privacy Act

claim within a reasonable time to be determined by Judge Arbuckle.

of Plaintiff’s second amended complaint are dismissed in part, and

Defendants may be given an opportunity on referral back to Judge Arbuckle

to move to dismiss Count VI (Privacy Act) if they wish.

I. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district

judge, and the court may rely on the recommendations of the magistrate

judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496,

499 (M.D. Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676

(1980)). For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, "satisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D. Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining that judges should give some review to every report and

recommendation)). In any case, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); Local Rule 72.31. “[A] Report and Recommendation does not

have force of law unless and until the district court enters an order

accepting or [not accepting] it.” Garceran v. Morris County Prosecutors

Office, No. 14–2135 (CCC-MF), 2015 WL 858106, at *1 (D.N.J. Feb. 27,

2015) (citing United Steelworkers of Am. v. N.J. Zinc Co., Inc., 828 F.2d

1001, 1005 (3d Cir. 1987)).

Finally, since Judge Arbuckle states the appropriate standards for

motions to dismiss and for Plaintiff’s employment discrimination claims, the

court will not fully repeat them herein, (see Docs. 32 & 50), except to

reiterate that in deciding motions to dismiss the court must “accept all

factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Black v.

Montgomery Cnty., 835 F.3d 358, 364 (3d Cir. 2016) (internal citation

omitted). And federal courts should be particularly liberal in construing pro

se pleadings such as Plaintiff’s amended complaint here. See Erickson v.

Pardus 551 U.S. 89, 94 (2007).

II. DISCUSSION

At the outset, the court finds Judge Arbuckle did not err in applying

Defendants’ arguments made in their motion to dismiss Plaintiff’s amended

complaint to Plaintiff’s virtually identical (except for the additional Privacy

Act claim) second amended complaint. The court is within its discretion to

consider a motion to dismiss as being addressed to a subsequently

amended pleading, especially when the amended pleading is substantially

similar to the original pleading, (see Doc. 50 at 10 n.21); the court finds the

District Court for the District of Oregon’s 1947 decision to the contrary

unpersuasive, (see Doc. 52, Defendants’ Objections) (citing United States

v. Shofner Iron & Steel Works, 71 F.Supp. 161, 162 (D. Or. 1947)).

Finally, and most importantly, we turn to the substance of Defendants’

motion to dismiss. In his report,3 Judge Arbuckle organized the issues

presented by Defendants’ motion to dismiss accordingly: (1) whether

Counts II and V of Plaintiff’s amended complaint should be dismissed

because of Plaintiff’s failure to exhaust administrative remedies; (2)

whether Count IV and Plaintiff’s punitive damages claim should be

3 References to Judge Arbuckle’s “report” in the Discussion section

of this Memorandum refer to the September 2022 R&R which contains the

substantive reasons for which the February 2023 R&R recommends

granting Defendants’ motion to dismiss in part.

dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure; (3) whether Count I should be dismissed as insufficiently plead;

and (4) whether Count III should likewise be dismissed as insufficiently

plead. The court will address Judge Arbuckle’s findings for each issue and

objections thereto in turn.4

A. Counts II & V: Failure to Exhaust Administrative Remedies

To start, Judge Arbuckle’s report addressed Defendants’ argument

that Plaintiff’s hostile work environment claim (Count II) should be

dismissed because Plaintiff did not initiate pre-complaint proceedings with

the EEO within the required 45-day period and thus failed to exhaust

administrative remedies. 29 C.F.R. §1614.105. Judge Arbuckle rejected

this argument, explaining:

Plaintiff does not allege when he initiated informal pre-complaint

proceedings with the EEO counselor, or whether he complained

about a hostile work environment when he did so. He alleges that

he filed an EEO complaint, which I infer occurred after

appropriate pre-complaint proceedings with the EEO counselor.

He also alleges that the “MSPB accepted the claim of Hostile

Work Environment for adjudication.” (Doc. 15, ¶ 55). Accepting

these allegations as true, and drawing all reasonable inferences

in Plaintiff’s favor, I find that Plaintiff has alleged enough facts in

his amended complaint to plausibly allege exhaustion.

4 To be clear, the court has reviewed and considered the entirety of

the parties’ objections to both the September 2022 R&R and the February

2023 R&R.

Accordingly, I find that Plaintiff’s hostile work environment claim

should proceed at this stage.

(Doc. 32 at 26–27) (emphasis in original). Defendant Christine Wormuth, in

her official capacity as the Secretary of the Army, objects to this finding,

arguing that the evidence does not support Judge Arbuckle’s inference that

Plaintiff’s initial pre-complaint contact with the EEO occurred before Plaintiff

filed an EEO complaint and could therefore have been timely. Defendant

points to Plaintiff’s own statements in support of her objection, namely,

Plaintiff’s allegation that his last day of work was November 29, 2019;

Plaintiff’s statement in his Opposition to the motion to dismiss that he filed

his claim with the EEO office on February 19, 2019; and “the self-

authenticating EEO documents” which show Plaintiff did not make initial

contact with the EEO until April 2, 2019. (Doc. 40 at 6–7).

The evidence cited by Defendant Wormuth does not demonstrate

Judge Arbuckle clearly erred in drawing a reasonable inference in favor of

Plaintiff that Plaintiff made initial contact with EEO in a timely fashion as

required to exhaust administrative remedies. Even if the court were to

consider the official EEO complaint at the motion to dismiss stage, the fact

that the complaint suggests Plaintiff made initial contact with the EEO on

April 2, 2019, is not dispositive.5 For example, as Judge Arbuckle

explained, 29 C.F.R. §1614.105—the regulation requiring pre-complaint

initiation with an EEO counselor within 45 days—further provides for an

extension of the 45-day window under some circumstances:

The agency or the Commissioner shall extend the 45-day time

limit in paragraph (a)(1) of this section when the individual shows

that he or she was not notified of the time limits and was not

otherwise aware of them, that he or she did not know and

reasonably should not have been known that the discriminatory

matter or personnel action occurred, that despite due diligence

he or she was prevented by circumstances beyond his control

from contacting the counselor within the time limits, or for other

reasons considered sufficient by the agency or the Commission.

(See Doc. 32 at 25). Moreover, as Judge Arbuckle highlighted, Plaintiff

alleges, and Defendants concede, that the MSPB accepted Plaintiff’s

hostile work environment claims for adjudication in the face of the Army’s

argument that the claims had not been timely exhausted and were waived.

5 Defendant Wormuth claims Judge Arbuckle erred in refusing to

consider Plaintiff’s official EEO complaint at the motion to dismiss stage.

(See Doc. 40 at 7–8). It is true “a court may consider an undisputedly

authentic document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff’s claims are based on that document.” Pension

Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d1192, 1196 (3d

Cir. 1993) (emphasis added). But Judge Arbuckle was well within his

discretion in declining to consider the EEO complaint and other documents

extraneous to the pleadings, and the court finds no error. Even considering

the EEO complaint, however, Judge Arbuckle’s findings regarding Counts

II and V should and will be adopted.

Thus, it was reasonable for Judge Arbuckle at this stage to draw an

inference in Plaintiff’s favor that he timely initiated pre-complaint

proceedings with the EEO and thereby exhausted administrative remedies.

Whether there is competent record evidence to support a finding of

exhaustion is a question more appropriately handled in a motion for

summary judgment.

Next, Judge Arbuckle addressed Defendants’ argument that the court

should dismiss Count V because (1) Plaintiff did not raise specific

allegations of racial discrimination during the initial counseling phase of the

EEO process and (2) Plaintiff did not contact an EEO counselor within the

45-day window. Judge Arbuckle found that Plaintiff’s allegations in Count

V regarding disparate treatment arising from Plaintiff’s termination should

be permitted to proceed at this time, reasoning:

Plaintiff alleges in his Amended Complaint that Plaintiff filed EEO

complaints underlying this action on April 2, 2019. (Doc. 15, ¶ 3).

He does not allege when he contacted the EEO counselor for

informal pre-complaint proceedings or what he complained of.

The issue of whether Plaintiff’s disparate impact claim relating to

his termination was adequately presented in those proceedings

is a factual issue that may be more appropriately resolved at the

summary judgment stage.

(Doc. 32 at 31). Defendant Wormuth objects to this finding, arguing that

Plaintiff “did not include his termination in Count V,” and “even if [Plaintiff]

did allege improper termination in Count V,” it should be dismissed for the

same reasons Defendant argues Plaintiff’s Rehabilitation Act termination

claim fails. The court will overrule Defendant’s objections because, while

the paragraphs under Count V of the amended complaint do not specifically

mention Plaintiff’s termination, the amended complaint incorporates the

preceding one hundred paragraphs which do mention termination. (See

Doc. 15, ¶103). Moreover, as explained below, Judge Arbuckle correctly

found that Plaintiff’s Rehabilitation Act termination claim should proceed at

this stage.

B. Count IV: Lack of Jurisdiction for Plaintiff’s Bivens Claim

Judge Arbuckle’s report turned next to Plaintiff’s due process claim in

Count IV of his amended complaint. In Count IV, Plaintiff asserts a Fifth

Amendment due process claim against a federal agency (Department of

the Army), the United States, and a federal official in her official capacity

(Christine Wormuth). Judge Arbuckle found that the court lacks jurisdiction

over this claim, explaining:

Although Congress established a damages remedy under 42

U.S.C. §1983 against state officials for violations of the federal

constitution, it did not create an analogous statute for damages

against federal officials. In Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, however, the Supreme Court

“recognized for the first time an implied private action for

damages against federal officers alleged to have violated a

citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 66 (2001). “[A]ctions brought directly under the

Constitution against federal officials have become known as

‘Bivens actions.’” Vanderklok v. United States, 868 F.3d 189, 198

(3d Cir. 2017). Count IV of the first amended complaint is

construed as a Bivens claim.

(Doc. 32 at 35–36). Construing Count IV as a Bivens claim, Judge Arbuckle

proceeded to find the claim barred by sovereign immunity:

“[S]overeign immunity constitutes a jurisdictional bar to claims

against the United States and its agencies, unless Congress has

specifically waived such immunity.” Landis v. Wilson, 1:19-CV-

1301, 2021 WL 4502234 at *6 (M.D. Pa. Sept. 30, 2021) (citing

FDIC v. Meyer, 510 U.S. 471, 475 (1994)). It is well established

that Congress has not waived this immunity for Bivens claims

asserted against the United States or its agencies (i.e., the

Army). See e.g. Wilson v. Pallman, No. 09-787, 2009 WL

2448577 at *4 (E.D. Pa. Aug 7, 2009) (holding that a plaintiff

could not bring a Bivens claim against the United States because

it has not waived its sovereign immunity to lawsuits making

constitutional claims in the employment context); Drabick v.

Sebelius, No. 1:10-CV-1841, 2012 WL 2411658 at *4 (M.D. Pa.

June 26, 2012) (dismissing §1983 and Bivens type claim against

the Army based on sovereign immunity). Because Congress has

not waived sovereign immunity, this Court does not have

jurisdiction over Plaintiff’s Bivens claims. Accordingly, Plaintiff’s

Bivens claims against the United States and the Army should be

dismissed.

As to Defendant Wormuth, Plaintiff has sued the secretary of the

army in her official capacity. “An action against government

officials in their official capacity constitutes an action against the

United States.” Lewal v. Ali, 289 F.App’x 515, 516 (3d Cir. 2008).

Thus, the claim against Defendant Wormuth is also barred by

sovereign immunity and should be dismissed because this Court

lacks jurisdiction.

(Doc. 32 at 36–37). Plaintiff objects to this finding, arguing Judge Arbuckle

incorrectly construed his due process claim as a Bivens claim. Plaintiff says

his claim is a procedural due process claim, and he goes on to list the

various alleged due process violations committed by the defendants. But

Judge Arbuckle correctly (even charitably) construed Plaintiff’s due process

claim as a Bivens claim, since Bivens is the vehicle by which an individual

may bring a cause of action for damages for certain constitutional violations

by federal agents. See Vanderklok v. United States, 868 F.3d 189, 198 (3d

Cir. 2017) (“The Supreme Court first implied a private right of action for

damages for a deprivation of constitutional rights by federal officers in

Bivens[.]”). Thus, construing Plaintiff’s due process claim in Count IV as a

Bivens claim is the only avenue by which the claim could survive a motion

to dismiss; however, as Judge Arbuckle correctly found, Plaintiff’s claim

fails because he has not alleged a proper Bivens defendant. The

defendants that Plaintiff names are covered by sovereign immunity. See

Landis 2021 WL 4502234 at *6 (citing Meyer, 510 U.S. at 475). Therefore,

the court will overrule Plaintiff’s objection.

C. Count I: Plaintiff’s Claim for Failure to Accommodate

Judge Arbuckle’s report turned next to Plaintiff’s claim in Count I

under the Rehabilitation Act of failure to accommodate. The report

recommends the court allow Plaintiff’s claim in Count I to proceed, rejecting

Defendants’ argument that Plaintiff has not plead sufficient facts to survive

a motion to dismiss. In recommending the court deny dismissal of Count I,

Judge Arbuckle pointed to three sets of facts alleged in Plaintiff’s complaint:

First, Plaintiff alleges that he has a disability (depression), and

was perceived by his co-workers as suffering from some sort of

mental illness that made him hostile, uneasy, and unstable.

Second, Plaintiff alleges that he is qualified to perform his job

with or without reasonable accommodation. He also alleges facts

that show he requested, and was granted, a temporary

accommodation. Specifically, Plaintiff alleges that he was

assigned to a private cubicle for a period of time and was directed

to “provide satisfactory medical documentation ‘an explanation

of the medical basis for any conclusion that you will likely become

ill, or harm yourself or others by carrying out the duties of your

position of an IT Specialist (Customer Support), including your

ability to work around your co-workers.’” (Doc. 15, ¶ 16). Third,

Plaintiff alleges that he was terminated from his employment

several months after he was moved out of his private cubicle into

a community work setting where he had multiple conflicts with

co-workers. Accordingly, I find that Plaintiff has provided enough

factual information for his rehabilitation act claim to proceed at

this early stage of litigation.

(Doc. 32 at 46). Defendant Wormuth objects to this finding, arguing—as

she did before Judge Arbuckle—Plaintiff failed to plead sufficient facts to

state a plausible claim of discrimination. While Defendant Wormuth may

disagree with Judge Arbuckle’s finding, her objection does not demonstrate

that Judge Arbuckle erred in recommending Count I proceed. Defendant

Wormuth urges this court to “not adopt [the report’s] analysis, but rather

look to its own recent authority in Mastrella v. DeJoy, No. 1:20-CV-1037,

2021 WL 5396076, at *5 (M.D. Pa. Nov. 18, 2021), where it found that when

a plaintiff pleads no facts to substantiate his discrimination claim, the Court

will dismiss that claim.” (Doc. 40 at 9). However, Mastrella underscores the

adequacy of Plaintiff’s pleading at the motion to dismiss stage when his

complaint is contrasted with the complaint in Mastrella. “Mastrella plead[ed]

no facts to substantiate his discrimination claim. His amended complaint

offer[ed] only one passive and conclusory averment on the subject, viz.: ‘It

is believed that this failure to [increase Mastrella's salary] was motivated by

discrimination ... against [Mastrella] due to his ... disability.’” Id. Plaintiff’s

claim on the other hand contains much more than “only one passive and

conclusory averment,” as Judge Arbuckle’s report pointed out. Whether the

evidence demonstrates Plaintiff was terminated or discriminated against

because of his disability, or whether he was actually terminated for his

alleged misconduct, as Defendant Wormuth avers, is a factual question

more appropriately dealt with in a summary judgment motion. Judge

Arbuckle did not err in recommending Count I proceed based on the

specific factual allegations in Plaintiff’s complaint; the court will thus

overrule Defendant’s objection.

D. Count III: Plaintiff’s Insufficiently Pled Claim of Retaliation

Finally, Judge Arbuckle’s report turned to Plaintiff’s claim for

retaliation in Count III under Title VII and the Rehabilitation Act. Defendants

argued in their motion to dismiss that Plaintiff did not plead enough facts to

show a causal connection between his August 2018 EEO complaint and

March 20, 2019, removal from service as required to state a claim of

retaliation. Judge Arbuckle agreed, explaining first that the time between

the protected conduct and adverse employment action was not unusually

suggestive to demonstrate a causal link:

Based on the allegations in the amended complaint,

approximately three months passed between the date Plaintiff

filed the August 2018 EEO complaint and the date Plaintiff was

placed on leave. Approximately seven months passed between

the date Plaintiff filed his August 2018 EEO complaint and the

date he was removed from service. The three to seven month

period of time is not an unusually suggestive temporal proximity.

See e.g. Blakney v. City of Phila, No. 12- 6300, 2013 WL

2411409 at *4 (E.D. Pa. June 4, 2013) (collecting cases that

suggest a period of several months is not unusually suggestive

temporal proximity).

(Doc. 32 at 57). Judge Arbuckle continued, finding Plaintiff did not

otherwise link the adverse employment action with his protected conduct

to state a claim for retaliation:

“[I]n cases where temporal proximity is not ‘unusually suggestive’

of retaliatory motive, the Third Circuit has demanded further

evidence to substantiate a causal connection.” Id. at 4 (quoting

McCloud v. United Parcel Serv. Inc., 543 F.Supp.2d 391, 401-02

(E.D. Pa. 2008)). “Such other evidence may include, but is not

limited to, a ‘pattern of antagonism’ by the employer that could

link the adverse action with Plaintiff’s complaint.” Id. Plaintiff

argues that he has pleaded the “link” based on his allegation that

some of the individuals who investigated the August 2018 EEO

complaint were also involved in the investigation of the complaints

filed against Plaintiff that resulted in Plaintiff’s removal. It does not

appear that any of the individuals doing the investigating were

involved in the allegedly inappropriate re-promotion Plaintiff wrote

about in the August 2018 EEO complaint or in the November 2018

incident that resulted in Plaintiff’s removal from service.

Accordingly, I find that Plaintiff has failed to plead enough facts to

meet the third element of his retaliation claim in Count III.

Therefore, Count III of the amended complaint should be

dismissed.

(Doc. 32 at 57–58).

Plaintiff objects to this finding, arguing he did plead sufficient facts to

state a claim for retaliation in Count III. In his objections, Plaintiff largely

repeats his allegations made in his amended complaint and his arguments

made in his opposition to Defendants’ motion to dismiss. Judge Arbuckle

considered these allegations and arguments, and the court finds no error

in Judge Arbuckle’s analysis and conclusion with regard to Count III.

Plaintiff has not sufficiently pled facts of a causal link between the adverse

employment action and his protected activities to state a plausible

retaliation claim. Therefore, the court will overrule Plaintiff’s objection and

adopt Judge Arbuckle’s recommendation of dismissal of Count III.

III. CONCLUSION

The court has reviewed the February 2023 R&R of Judge Arbuckle

recommending the court grant in part and deny in part Defendants’ motion

to dismiss, and recommending the court dismiss as moot Plaintiff’s motion

to amend. Because the court agrees with the sound reasoning that led

Judge Arbuckle to the conclusion in his report and finds no clear error in

the record, the court will ADOPT the report in its entirety. The court will

GRANT Defendants’ motion to dismiss Plaintiff’s claims for retaliation, due

process, discrimination related to incidents that occurred in 2014 and 2015,

and punitive damages. (Doc. 18). Those claims will be DISMISSED with

prejudice in light of the Plaintiff’s repeated, unsuccessful attempts at curing

the stated defects. The court will DENY Defendants’ motion to dismiss

Plaintiff’s remaining claims. The court will DISMISS AS MOOT Plaintiff’s

motion to amend. (Doc. 25). An appropriate order will issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATED: March 28, 2023

21-543-01