# Nguyen v. Civil Air Patrol(MAG+)

> District Court, M.D. Alabama · November 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10630418

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** November 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10630418

## How later opinions describe it (automated extraction)

- noting that, although a court must accept all factual allegations in a complaint as true at the motion to dismiss stage, it need not “accept as true a legal conclusion couched as a factual allegation”
- holding dozens of derogatory comments over an eleven-month period insufficiently severe and pervasive

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

TONY NGUYEN, )
)
Plaintiff, )
)
v. ) CASE NO. 2:20-CV-824-MHT-KFP
)
CIVIL AIR PATROL, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Pro se Plaintiff Tony Nguyen brings this action against the Civil Air Patrol, five
individually named defendants, and 10 fictitious defendants. Plaintiff brings numerous
claims, described this way in the caption of the Second Amended Complaint:
1/Violations on ADA Employments-Accomodations to Disabled Veteran.
2/Violations on Employments’s Retaliations.
3/Violations on Equal Employments-Equal Treatments Clause.
4/Violation to 42.USC 1983-Deprivation to Constitutional Rights.
5/Negligence in Failed to Train.
6/Intentional Infliction Emotion Distress.
[sic]

Doc. 22 at 1. In the body of the Second Amended Complaint, Nguyen also asserts
harassment in the nature of a hostile work environment. Id. at 7-8.
Although Nguyen names numerous defendants, only CAP has been served with the
Second Amended Complaint. CAP has moved, on a variety of grounds, to dismiss
Plaintiff’s Second Amended Complaint under Rule 12(b)(6). Doc. 24. For the reasons that
follow, the undersigned RECOMMENDS that CAP’s Motion to Dismiss be GRANTED
and this case be DISMISSED in its entirety.1

I. BACKGROUND
Nguyen initiated this action by filing an initial Complaint (Doc. 1) on October 13,
2020. On January 11, 2021, Nguyen filed an Amended Complaint (Doc. 3), which was
served only on CAP. CAP moved to dismiss the Amended Complaint for a variety of
reasons (Doc. 6), and Nguyen subsequently moved to again amend his pleading (Doc. 13).
The Court granted Nguyen leave to file a Second Amended Complaint. In its Order, the

Court identified many of the Amended Complaint’s pleading deficiencies, explaining that
it was a prohibited shotgun pleading and cautioning Nguyen that failure to cure the
deficiencies identified therein, as well as the deficiencies identified in CAP’s motion to
dismiss, would result in dismissal of the case. See Doc. 16. On May 18, 2021, Nguyen filed
his Second Amended Complaint. Doc. 22.

Although the Second Amended Complaint is largely incoherent, the following facts
can be extracted and must be accepted as true at this stage. Nguyen, who is Asian, is a
disabled veteran. Id. at 3. He identifies his national origin as Vietnamese. Id. at 11. “[H]e

1 Many of the bases for dismissal discussed herein are applicable to all the purported defendants, not just
CAP. Additionally, Nguyen has failed to effect service on any of the individually named defendants despite
the fact that this action has been pending for more than a year and the Second Amended Complaint was
filed more than five months ago. See Benkovitch v. Vill. of Key Biscayne, Fla., 778 F. App’x 711, 715 (11th
Cir. 2019) (noting that, when a plaintiff fails to serve process within 90 days after the complaint is filed, a
court may dismiss the case) (citing Fed. R. Civ. P. 4(m)). Finally, as to the fictitious defendants, “fictitious-
party pleading is generally not permitted in federal court” unless “the plaintiff’s description of the defendant
is so specific as to be at the very worst, surplusage.” Kabbaj v. John Does 1-10, 600 F. App’x 638, 641
(11th Cir. 2015) (quoting Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)). That is not the case
here; despite multiple opportunities to describe the fictitious defendants or more clearly identify the actions
allegedly taken by them, Nguyen has failed to do so. Accordingly, dismissal of the entire case is appropriate.
served in Civil Air Patrol -US Air Force as a part of his Military Duty ( under pending life
time contract with US AF and our Nation) and obligations to give back for the Country as

a Senior Officer in Legal , Information Technology and Aerospace [sic].” Id. at 4. In and
before November 2017, Nguyen complained about “the lack of ADA assistance to Disabled
Veterans includ[ing Nguyen].” Id. From November 2017 through January 2018,
individually named Defendants Alan Ferguson, Craig Newton, and Gregory Jurek would
tell Nguyen that he “[did not] qualify to apply for higher level of positions of CAP because
[he had a] Vietnamese accent, [was] over 40 years, had military disability and . . . requested

reasonable accommodation due to [his] disability.” Id. at 7. “Craig Newton would call
[Nguyen] ‘Vietnamese Fu**ing’ and would say [his] accent cannot show [his] educations
and [Nguyen] should not wear name tag on [his] CAP uniform.” Id. Nguyen alleges verbal
interactions like this “occurred on [a] weekly basis.” Id. Additionally, Nguyen alleges that
“Gregory Jurek would say [he] had [a] Vietnamese accent and I cannot understand, [and

Jurek] would translate for [Nguyen] and would say [Nguyen] don’t have any Medical
disability [and his] restrictions do not need to be accommodated [sic].” Id. at 7-8.
In or around June 2017 “and onward,” Nguyen requested reasonable
accommodations for a disability, but he was not accommodated. Id. at 8. Before November
2017, Nguyen applied to be a “Senior Inspector general (IG-05 rank) with CAP-USAF.”

Id. at 8. In November 2017, apparently during a meeting, Nguyen, who was wearing some
type of “medical support devices and other accommodations” was forced to remove the
accommodations to wear the CAP uniform when Alan Ferguson-Newton said, “There was
an ASIAN here ( only me ) do not know to wear CAP Uniform’ and he should not wear
his name tag because disqualified and cannot be PROMOTED TO 06 Level of CAP
leadership.” Id. at 11. Nguyen filed an EEOC charge and received a right to sue letter on

July 11, 2020 “and before.” Id. at 5. Additionally, Nguyen asserts that:
• “The USAF members can have credits from serving to CAP as a part of retirement
credit programs . . . . Nguyen . . . was working for [CAP] for his US Air Force
Retired Credits Programs as well he is serving in many Federal or Federal Military
Forces[.]” Id. at 4.

• Nguyen “WAS SUBJECTED TO change Status of Volunteering Employments On
or around January 10, 2018, Alan Ferguson, Supervisor alleged [he] was
disqualified for promotions to higher Senior Positions at CAP [sic].” Id. at 9.

On June 15, 2020, Nguyen alleges that something happened, although precisely
what is unclear:
I sent message and called them(CAP) to resinstate me as the promotion of
My Selected Positions as an 05 on CAP-USAF , they also ignore and prevent
me to join against My orginal position works at CAP/USAF from Racial and
Military Discrimination. They told me : “ You are disqualified from We
cannot believe with your VN accent and Disabilities, you can have a unique
HARVARD education like that .Your complaints to USDOJ -EEOC made
us embarrassed .Go ahead to sue us “ and hand it up. (My email to them:
06/15/2020: All: Please see again Tony Nguyen Application to have new
Position at CAP_USAF -AEM and Please reinstate him again to his selected
position in IT, AEM, IG team as an 05 of CAP-USAF as EEOC and USAF
advice. Please send the denial or approval before we can process Federal
Lawsuit against Civil Air Patrol on many kinds of Discriminations.) [sic].

Id. at 10-11. Finally, sometime between January 2018 and July 2020, “Alan Ferguson,
Supervisor” told Nguyen that he “was disqualified to be promoted [to a] higher Position[.]”
Id. at 10.
Critically, it is unclear from the Second Amended Complaint whether Nguyen was
a volunteer or employee of CAP or whether he had some other status with CAP. It is equally
unclear when the relationship, whatever it was, began and if or when it ceased.
II. LEGAL STANDARD
Under 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). While detailed factual allegations are not required, a plaintiff must present “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’” Id. “Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at
557).
To survive a motion to dismiss for failure to state a claim, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555 (noting that, although a
court must accept all factual allegations in a complaint as true at the motion to dismiss

stage, it need not “accept as true a legal conclusion couched as a factual allegation”)).
III. DISCUSSION
A. Plaintiff’s Second Amended Complaint Remains an Impermissible
Shotgun Pleading.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” In addition, Rule 10(b) requires a plaintiff to state his claims “in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” The
Eleventh Circuit has described shotgun pleadings as follows:
Though the groupings cannot be too finely drawn, we have identified four
rough types or categories of shotgun pleadings. The most common type—
by a long shot—is a complaint containing multiple counts where each
count adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last count to be a
combination of the entire complaint. The next most common type . . . is
a complaint that does not commit the mortal sin of re-alleging all
preceding counts but is guilty of the venial sin of being replete with
conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun pleading is one that
commits the sin of not separating into a different count each cause of action
or claim for relief. Fourth, and finally, there is the relatively rare sin of
asserting multiple claims against multiple defendants without specifying
which of the defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against. The unifying
characteristic of all types of shotgun pleadings is that they fail to one degree
or another, and in one way or another, to give the defendants adequate notice
of the claims against them and the grounds upon which each claim rests.

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015)
(emphasis added); accord Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021)
(“Shotgun pleadings are flatly forbidden by the spirit, if not the letter, of [the Federal Rules]
because they are calculated to confuse the enemy, and the court, so that theories for relief
not provided by law and which can prejudice an opponent’s case, especially before the
jury, can be masked.[] Besides violating the rules, shotgun pleadings also waste scarce
judicial resources, inexorably broaden the scope of discovery, wreak havoc on appellate

court dockets, and undermine the public’s respect for the courts. We have little tolerance
for them.”) (internal quotation marks and citations omitted).
Like his previous pleading, Nguyen’s Second Amended Complaint squarely meets
the first two criteria above. The pleading is also the fourth type of prohibited shotgun
pleading, as there are few factual allegations as to each Defendant’s conduct included in
the Second Amended Complaint. The majority of the allegations are, instead, incoherent

and conclusory statements that are copied and pasted multiple times throughout the
pleading. Many allegations string together disjointed statements, which makes discerning
the factual basis potentially imbedded therein a nearly impossible task. For instance,
Nguyen asserts:
On 01/2018 until 07/2020 ,As my ADA Assistance Complaints to
Leaderships levels of CAP-USAF on lack of ADA assistance to Disabled
Veterans included Tony Nguyen , Plaintiff Tony Nguyen received the letters
included verbally response from CAP Personnels that : You disqualified
because you complained us on lack of ADA assistance and othe matters to
USAF -IG , US DOJ and US Congress , let us change your status of
CAP_USAF Volunteer/Military Credited Employee with CAP-USAF and
you are forced to change to other status with CAP-USAF from you are also
disqualify in IT -other Components because over 40 years old and can not
promoted to Leadership level here(CAP_USAF) [sic].

Doc. 22 at 5, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 21, 23.2 It is unclear whether Nguyen
contends he was a compensated employee of CAP, was a volunteer, or had some other

2 Nguyen has copied and pasted this exact same allegation on at least 14 pages throughout his pleading. As
noted above, he does this with many of his allegations.
engagement with CAP.3 It appears Nguyen claims he was prohibited from being promoted
to some unidentified “Leadership level” position, but it is unclear whether he applied for

the promotion or otherwise sought the promotion, when he actually did so, and whether he
was qualified for the promotion sought. It is also unclear if he contends that someone
outside his protected class(es) was promoted or hired into the position at issue. He does
allege that sometime before November 2017, he “was applying to be Senior Inspector
general (IG-05 rank) with CAP-USAF and approved by CAP-USAF Supervisor Jones in
promotion become a Senior Inpector General Officer and Commander of Aerospace

Division of CAP-USAF with rank 05 (L.Colonel) after [he] completed Seninor Officers
Training Programs and Leadership Program at CAP_USAF [sic].” Doc. 22 at 4, 7, 8, 9, 10,
13, 14, 15, 16, 17, 18, 20, 22. However, whether the Senior Inspector position is the
specified “leadership” promotion Nguyen wanted is not clear.
During that same time period, Nguyen alleges he was informed that “they can not

trust Plaintiff study HARVARD and President of HARVARD Alumni of USAF with such
Vietnamese English accent.”4 Doc. 22 at 5, 8, 9, 10, 13, 14, 15, 16, 18, 19, 21, 23. And,
repeatedly, Nguyen asserts seemingly immaterial facts such as that he is “President of the
Harvard Alumni of US Air Force as an honor Harvard Alumnus” and that he has “Harvard
Post Doc-JD-LLM,M.Eng,M.Arch,MBA studied at Universities included HARVARD

with many honor scholarships from over 08 Degrees from Bachelors to Doctorate [sic].”

3 In his opposition to the Motion to Dismiss, Nguyen asserts that he “is employed partime with CAP_USAF
as a Pending Contract with US Air Force . Also , he volunteered to support CAP and USAF . . . [sic].” Doc.
26 at 5.

4 It is unclear to whom “they” refers or who, specifically, said this to Nguyen.
See, e.g., Doc. 22 at 3. As best it can be interpreted, Nguyen apparently alleges that some
unidentified person(s) at some point(s) in time claimed to be unable to trust his Harvard

education because of his “Vietnamese English accent.” These are just a few examples of
the difficulties presented in interpreting the factual basis for Nguyen’s claims—a problem
that plagues his entire pleading.
This lack of factual clarity precludes a finding of plausibility as to any claim. For
example, Nguyen’s pleading incorporates in each count all prior allegations, copies and
pastes into each count many prior allegations, and seemingly dumps in other text copied

from external sources. See McCall v. Bank of Am., N.A., No. 2:16-CV-184, 2016 WL
5402748, at *2 (M.D. Ala. Sept. 26, 2016) (“It is not enough to clearly incorporate all facts
pleaded in the . . . complaint . . . as Plaintiff has done; rather, the supporting facts must be
pleaded in the count asserting the cause of action.”) (citing Wagner v. First Horizon Pharm.
Corp., 464 F.3d 1273, 1280 (11th Cir. 2006)). The pleading is difficult to follow and

wrought with missing factual links that prevent the Second Amended Complaint from
giving any of the Defendants adequate notice of the claims against them and, in particular,
the grounds on which each of those claims rest. See Barmapov, 986 F.3d at 1324 (“The
‘self-evident’ purpose of [the Federal Rules] is ‘to require the pleader to present his claims
discretely and succinctly, so that[] his adversary can discern what he is claiming and frame

a responsive pleading.’[] These rules were also written for the benefit of the court, which
must be able to determine ‘which facts support which claims,’ ‘whether the plaintiff has
stated any claims upon which relief can be granted,’ and whether evidence introduced at
trial is relevant.”) (citations omitted).
Not even the leniency due a pro se litigant can salvage a failure to adequately plead,
especially here on the third attempt. See Jones v. Fla. Parole Comm’n, 787 F.3d 1105,

1107 (11th Cir. 2015) (“A pro se pleading is held to a less stringent standard than a pleading
drafted by an attorney; a pro se pleading is liberally construed.”). “While pro se pleadings
are held to less stringent standards than those drafted by attorneys, they still must suggest
some factual basis for a claim.” KPOKYC v. President, 858 F. App’x 289, 291 (11th Cir.
2021) (affirming dismissal of pro se pleading where the “‘complaint constituted a shotgun
pleading because it was ‘replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action.’”) (quoting Weiland, 792 F.3d at 1322); Bell
v. J.B. Hunt Transp., Inc., 427 F. App’x 705, 708 (11th Cir. 2011) (“[T]he obligation to
liberally construe a pro se pleading is not the equivalent of a duty to re-write it for the
plaintiff.”). The Second Amended Complaint is an exemplar shotgun complaint that
requires dismissal at this time.

The closest Nguyen comes to stating a claim is what appears to be his harassment
hostile work environment claim, but even it fails to assert sufficient factual clarity to move
the claim forward. McCray v. Auburn Univ. Montgomery, No. 2:11-CV-714-WHA, 2011
WL 6140993, at *2 (M.D. Ala. Dec. 8, 2011) (“[T]o plead a hostile work environment
claim the plaintiff is ‘required to allege that: (1) he belongs to a protected group; (2) he was

subjected to unwelcome harassment; (3) the harassment was based on his membership in
the protected group; (4) it was severe or pervasive enough to alter the terms and conditions
of employment and create a hostile or abusive working environment; and (5) the employer
is responsible for that environment under a theory of either vicarious or direct liability.’”)
(quoting Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010)). While a plaintiff
is not required to plead every fact of a prima facie case, he must, at a minimum, assert facts

demonstrating the material elements are plausible. See Evans v. Ga. Reg’l Hosp., 850 F.3d
1248, 1253 (11th Cir. 2017) (“A Title VII complaint need not allege facts sufficient to
make out a classic prima facie case, but must simply provide enough factual matter to
plausibly suggest intentional discrimination.”); see also Some v. Honda Mfg. of Ala., LLC,
No. 2:18-CV-2120-TMP, 2019 WL 1466240, at *5 (N.D. Ala. Apr. 3, 2019) (“Although
at the Rule 12 dismissal stage the plaintiff need not specifically plead every element of her

claim, the complaint must contain direct or inferential allegations respecting all the material
elements necessary to sustain a recovery.”) (citing Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
To establish a hostile work environment claim, a plaintiff must show that “the
workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (citations omitted). Nguyen’s conclusory allegations that he was discriminated
against, harassed, retaliated against, and not given due process and the like are mere legal
conclusions that the Court must ignore on a motion to dismiss. When those legal

conclusions are excluded, the remaining factual allegations fail to nudge the mostly
indecipherable claims forward. See Iqbal, 556 U.S. at 679.
Nguyen alleges that, from November 16, 2017 to January 2018, he faced some
variety of weekly verbal harassment “on the basis of age, ancestry (Vietnam), disability,
military and veteran status, national origin (Vietnam) and race (Asian).” Doc. 22 at 7.
However, the only examples he provides lack specificity. Nguyen alleges that, at some

unidentified time, he was told he did not qualify for “positions” because he has a
Vietnamese accent, is over 40 years old, has a military disability, and requested a
reasonable accommodation, and he further alleges he was called a “Vietnamese Fu**ing.”
Id.
Taken together, these statements are at best examples of sporadic insults. Albeit
cruel and not appropriate in the workplace (assuming Nguyen actually worked there), the

allegations are not sufficient to assert a plausible claim that the environment was permeated
with harassment—harassment that was severe or pervasive enough to state a claim. See,
e.g., Guthrie v. Waffle House, Inc., 460 F. App’x 803, 807 (11th Cir. 2012) (holding dozens
of derogatory comments over an eleven-month period insufficiently severe and pervasive);
Washington v. Util. Trailer Mfg. Co., No. 1:13-CV-610-WEF, 2014 WL 2831189, at *5

(M.D. Ala. June 23, 2014) (“The Court cannot evaluate the plausibility of Plaintiffs’ racial
harassment claim based on the [applicable] standards . . . until, as requested by this Court
repeatedly now, Plaintiffs give examples of when the statements are alleged to have been
made, or by whom, or to whom, or where and approximately how frequently and over what
time period.”) (internal quotations and citations omitted); see also Corbett v. Beseler, 635

F. App’x 809, 816 (11th Cir. 2015) (“Title VII is not a general civility code; ordinary
tribulations of the workplace . . . cannot form the basis of a claim for actionable harassment
or hostile work environment. Instead, conduct must be extreme to amount to a change in
terms and conditions of employment. Title VII is not a shield against harsh treatment in the
workplace; personal animosity is not the equivalent of discrimination.”) (internal
quotations and citations omitted).

Additionally, the Court notes that Nguyen appears to be quite familiar with the
judicial system, and several other courts have declared Nguyen a vexatious litigant. In one
of his incoherent narratives in opposition to the motion to dismiss, Nguyen asserts that he
is “on Medical Leave from Medical treatments caused from Attempted Murder , Abuse of
Process of a Criminal Gang was backed up by Iran and Vietnamese Communist
Governments. See Nguyen vs. Iran Islamic Republic et al -1:21-00267-Washington DC

US District Court) [sic].” Doc. 26 at 7 (emphasis in original). In this suit, styled Nguyen
v. Islamic Republic of Iran and filed in the District of Columbia in January 2021, Nguyen
brought suit against eleven named defendants and ten unknown defendants, alleging they
were a “big criminal gang” acting in collusion to threaten, harass, and attempt to murder
him, his parents, his family, “his God Parents,” and an unnamed disabled veteran referred

to only as John Doe. Case No. 1:21-CV-267-RCL (D.C.), Docs. 1, 6. The D.C. court sua
sponte dismissed the action without prejudice, calling the pleading “nonsensical” and
“utterly incoherent.” Id., Doc. 6.
Also, in January 2021, Plaintiff filed a seemingly identical complaint in the District
of Nevada against the same defendants. Case No. 2:21-CV-134-GMN-NJK, Doc. 1. The

Nevada court described Plaintiff’s allegations as “a delusional, sweeping conspiracy” that
were “frivolous and nonsensical.” Id., Doc. 118 at 8. The Nevada court further determined
that Nguyen had filed at least 42 prior—and often duplicative—cases, removals, and
appeals against the same defendants, all arising from similar frivolous claims, and noted
that two other courts had already deemed him a vexatious litigant and imposed prefiling
injunctions against him.5 Id. at 8-10. The court further recognized Nguyen’s “willingness

to circumvent” those prefiling injunctions by continuing to file similar cases under
pseudonyms and anonymously as “John Doe,” making the actual number of prior cases
filed by Nguyen difficult to discern. Id. at 10. Thus, the Nevada court also held Nguyen to
be a vexatious litigant and prohibited him from filing certain future lawsuits. Id. at 11.
Nguyen’s extensive, frivolous litigation history makes his failure to follow the
pleading rules, and this Court’s order giving him instructions about curing the deficiencies

of his last pleading, all the more troubling and intolerable. Therefore, the Second Amended
Complaint should be DISMISSED and no further leave to cure should be allowed.
B. Plaintiff’s Claims are Untimely: Claims under Title VII, the ADA, and the
ADEA Were Not Filed Within 90 Days.

While this lawsuit is subject to dismissal based solely upon the foregoing, the
undersigned makes a few additional points that further support dismissal of Nguyen’s
Second Amended Complaint. First, even if Nguyen plausibly asserted discrimination,
harassment, or retaliation claims under Title VII, the ADA, and the ADEA, those claims
should nevertheless be dismissed. These statutes provide that a plaintiff must bring a civil
action within 90 days after receiving a right to sue notice from the EEOC. See 42 U.S.C.
§ 2000e-5(f)(1) (setting 90-day deadline for Title VII cases); 42 U.S.C. § 12117(a)
(providing that the ADA incorporates the procedural provisions of Title VII, including

5 A vexatious litigant list prepared and maintained by the Judicial Council of California identifies “Anthony
Nguyen,” “aka Tony Nguyen,” as a vexatious litigant from whom the California courts have prohibited
future filings though October 1, 2021.
filing within 90 days after receiving a right to sue); 29 U.S.C. § 626(e) (setting 90-day
deadline for ADEA cases).6

Based on the Second Amended Complaint’s factual allegations, Nguyen received
his right to sue letter no later than July 11, 2020.7 Doc. 22 at 5. In fact, he alleges he
received it on that date “and before.” Id. As CAP points out in its motion, Nguyen filed
this lawsuit on October 13, 2020, more than 90 days after July 11, 2020. See Green v.
Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002) (affirming dismissal where
claimant failed to initiate suit until 97 days after the EEOC mailed right to sue notice);

Norris v. Fla. Dep’t of Health and Rehab. Servs., 730 F.2d 682, 682 (11th Cir. 1984)
(affirming dismissal of suit filed 91 days after receipt of right to sue notice).
“Once the defendant contests this issue, the plaintiff has the burden of establishing
that he met the ninety day filing requirement.” Green, 281 F.3d at 1234 (citing Jackson v.
Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982)). Nguyen, however, fails

to provide any argument or rebuttal to what must be deduced from the facts he has alleged:
these claims (assuming plausible claims are even asserted) are untimely because they were
filed more than 90 days after he received the EEOC’s right to sue letter. He also provides
no facts whatsoever to support equitable tolling of the 90-day requirement. See Baldwin

6 See also Strickland v. Wayne Farms–Southland Hatchery, 132 F. Supp. 2d 1331, 1332 (M.D. Ala. 2001);
Green v. Union Foundry Co., 281 F.3d 1229, 1233-4 (11th Cir. 2002) (citing Santini v. Cleveland Clinic
Fla., 232 F.3d 823, 825 (11th Cir. 2000)); Kerr v. McDonald’s Corp., 333 F. Supp. 2d 1352, 1358 (N.D.
Ga. 2004) (“[F]iling an action within 90 days of receipt of a notice of right to sue from the EEOC is a
condition precedent to bringing an action under [Title VII].”); 29 U.S.C. § 626(d)(1) (stating that no ADEA
civil action may be commenced unless an EEOC charge has been filed).

7 Plaintiff attached the Notice of Right to Sue with his initial complaint, which is dated July 10, 2020. See
Doc. 1 at 11.
Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements
established by Congress for gaining access to the federal courts are not to be disregarded

by courts out of a vague sympathy for particular litigants.”). Accordingly, these claims
should be DISMISSED.8
C. Plaintiff’s State Law Claims Should be Dismissed for Failure to State a
Claim.

1. Plaintiff’s Allegations Do Not Support an Outrage Claim
A claim for the tort of outrage under Alabama law requires a plaintiff to
“‘demonstrate that the defendant’s conduct (1) was intentional or reckless; (2) was extreme
and outrageous; and (3) caused emotional distress so severe that no reasonable person could
be expected to endure it.’” Washington v. Util. Trailer Mfg. Co., No. 1:13-CV-610-WKW,
2014 WL 7148864, at *3 (M.D. Ala. Dec. 15, 2014) (quoting Little v. Robinson, 72 So. 3d
1168, 1172 (Ala. 2011) (internal quotation marks omitted)); see also Little, 72 So. 3d at
1172 (discussing three limited types of conduct held actionable under the tort of outrage,
as set out in Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000)). “To be sure, in Alabama,
the tort of ‘outrage is a very limited cause of action that is available only in the most

egregious circumstances.’” Id. (quoting Thomas v. BSE Indus. Contractors, Inc., 624 So.
2d 1041, 1044 (Ala. 1993) (noting that the Alabama Supreme Court “has held in a large

8 CAP further argues that the EEOC Charge did not administratively exhaust all the claims asserted in this
lawsuit, and that may be true. Nguyen’s EEOC Charge is similarly difficult to follow. See Doc. 6, Ex. A.
Nevertheless, even assuming plausible claims are asserted here and that the charge encompassed the
allegations intended in this lawsuit as the basis for Nguyen’s claims for discrimination based on age,
disability, race, national origin, harassment, and retaliation, the lawsuit was not timely filed as explained
herein.
majority of the outrage cases reviewed that no jury question was presented” and citing 19
cases in support)). Indeed, “the Supreme Court of Alabama has taken special care to

accentuate the extreme nature of the tort of outrage.” McCreight v. AuburnBank, No. 2:19-
CV-865-ALB, 2020 WL 1061675, at *3 (M.D. Ala. Mar. 4, 2020) (citing Gibbs v. Aetna
Cas. & Sur. Co., 604 So. 2d 414, 415 (Ala. 1992) (holding that Cont’l Cas. Ins. Co. v.
McDonald, 567 So. 2d 1208, 1209 (Ala. 1990), a case in which a company cruelly and
intentionally withheld payment for pain treatment they knew they owed in an attempt to
press a nominal settlement, “has come to represent the minimum threshold that a defendant

must cross in order to commit outrageous conduct”)).
While the application is narrow, the Alabama Supreme Court has observed that the
limitation “is not to say . . . that the tort of outrage is viable in only the three circumstances
noted in Potts.” Little, 72 So. 3d at 1172–73 (observing that it recently affirmed a judgment
on a tort-of-outrage claim in a fourth situation). However, the grounds Nguyen has

asserted—consisting primarily of Nguyen’s mostly vague and largely garden-variety
allegations that he was subjected to some form of discrimination and/or harassment during
his volunteering and/or employment—are simply not the kind so egregious that might
nudge his outrage claim to the next stage of litigation. Compare Washington, 2014 WL
7148864, at *3 (denying motion to dismiss plaintiff’s “alleged facts, taken as true at this

juncture, that portray a workplace replete with racial discrimination, harassment, and
hostility,” where allegations included numerous racial slurs such as “black a—,”
“monkey,” “boy,” “dirty a—n–––––,” or “black a—mother–––––” and racially charged
graffiti inscribed on the walls, beams, and bathroom stalls, including the letters “KKK,”
drawings of a noose, the word “n–––––,” and references to the “Brotherhood”) with
McCreight, 2020 WL 1061675, at *3 (dismissing outrage claim where plaintiffs’

allegations were no “more than garden variety workplace discrimination” claims alleging
“patterns of discriminatory conduct in the work place” and noting that, while Plaintiff
McCreight was repeatedly told that the bank was only interested in hiring young people
and Plaintiff Wester was repeatedly called “slow,” their terminations, “while they may
have been dramatic, [did not] rise to the level of . . . truly shocking and outrageous
conduct”). Thus, Plaintiff’s purported outrage claim should be DISMISSED.

2. Because There is No Actionable Underlying Tort, Plaintiff Cannot Move
Forward on a Negligent Training Claim

Nguyen appears to assert a claim for negligent training. Setting aside the fatal
factual dearth supporting the claim, the claim cannot be supported by the alleged federal
causes of action. As this Court noted in Guy v. Alabama Power Co., No. 2:13CV8-MHT,
2013 WL 3929858, at *2 (M.D. Ala. July 29, 2013):
[The] wrongdoing must be based on state, and not federal, law. Otherwise,
the tort of negligent or wanton hiring, training, and supervision could be a
corridor through which federal laws prohibiting various types of conduct by
employees could be incorporated into state law as a privately redressable
requirement on employers to stop their employees from engaging in such
conduct.

Indeed, as the Guy court noted, “it appears that all Alabama federal courts that have
considered the issue have consistently interpreted state law as requiring that the [alleged]
wrongdoing be based on ‘a common-law, Alabama tort . . ., [and] not on a federal cause of
action.’” Id. at *3 (quoting Short v. Mando Am. Corp., 805 F. Supp. 2d 1246, 1277 (M.D.
Ala. 2011)).9 Thus, without an underlying state tort, of which there is none, Plaintiff’s
purported negligent training claim should be DISMISSED.

D. Plaintiff Fails to State a Viable Due Process or § 1983 Claim.

After copying and pasting numerous incoherent narrative statements throughout the
Second Amended Complaint, Nguyen asserts this for his due process claim:
On or before 06/15/2020, Civil Air Patrol or its Staff failed to have any
proper hearing , meetings explanations on Tony Nguyen ’s Changing
Employment or Denial of Promotions on his over qualified capacities with
accommodation .It is shown their misconducts from Discrimnations ,
Defamation /Retaliations and Violations to DUE PROCESS as one of
Constitutional Rights that Plaintiff NGUYEN must be entitled .Also,
Plaintiff was victimized by Defamatory/Retaliations as CAP made up many
fake reasons to mistreat Plaintiff as Federal Government ’s Proper
Complaints . When Nguyen complained to US Department of Justice , EEOC
, US Air Force , Congress members ,etc Civil Air Patrol made up or changed
many fake stories to harm NGUYEN ’s reputation .[] As a direct result of the
aforesaid unlawful retaliatory employment practices engaged in by the
Defendant in violation of the DUE PROCESS Clause [sic].

Doc. 22 at 19.
For his § 1983 claim, it appears Nguyen has simply copied and pasted a caselaw
summary, reasserted all the other paragraphs of the pleading along with additional
disjointed statements, and asserted, “Besides, CAP was acting with Tony Nguyen as a
Federal Government agency under color of his duty with USAF and also his USAF Credit

9 See also Williams v. Daiichi Sankyo, Inc., No. 2:11-CV-3629, 2012 WL 3627765, at *3 (N.D. Ala. Aug.
21, 2012) (“The plaintiff must allege underlying wrongful conduct that is an Alabama common law tort to
support a claim of wanton supervision.”); Evans v. Mobile Infirmary Med. Ctr., No. CIV.A.04-0364, 2005
WL 1840235, at *17 (S.D. Ala. Aug. 2, 2005) (“[T]he Alabama Supreme Court has held that a plaintiff is
required to prove an underlying common-law tort in order to prevail in a claim for negligent supervision,
training or retention.”)); Kurtts v. Chiropractic Strategies Grp., Inc., 481 F. App’x 462, 469 (11th Cir.
2012) (in cases without evidence that a tort was committed, “the Alabama Supreme Court has explained
that an employer may not be held directly liable on a theory of negligent supervision or training because no
[underlying] tort occurred.”).
Retired works , IT IS Considered CAP was depriving Civil Rights ( ADA Assistance and
DUE PROCESS clauses ) in his Employments of his CAP timing [sic].” Id. at 20.

Neither of these incomprehensible counts states a claim that can move forward in
litigation, and they should thus be DISMISSED.
IV. CONCLUSION10
Accordingly, for the reasons set forth above, the Magistrate Judge RECOMMENDS
that Defendant Civil Air Patrol’s Motion to Dismiss (Doc. 24) be GRANTED and this case
be DISMISSED.

It is further
ORDERED that on or before November 17, 2021, the parties may file objections
to the Recommendation. The parties must specifically identify the factual findings and
legal conclusions in the Recommendation to which objection is made. Frivolous,
conclusive, or general objections will not be considered by the Court. The parties are

advised that this Recommendation is not a final order and, therefore, is not appealable.
Failure to file written objections to the Magistrate Judge’s findings and recommendations
in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo determination by
the District Court of legal and factual issues covered in the Recommendation and waive
the right of the party to challenge on appeal the District Court’s order based on unobjected-

to factual and legal conclusions accepted or adopted by the District Court except on

10 In its motion, CAP raises additional grounds for dismissal, including arguing that volunteers like Nguyen
have no right of action under Title VII, the ADA, or the ADEA. These and other arguments CAP asserts as
grounds for dismissal are pretermitted based on the undersigned’s conclusion that the Second Amended
Complaint is otherwise due to be dismissed.
grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.
1982); 11th Cir. R. 3-1. See Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982); see

also Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc).
DONE this 3rd day of November, 2021.

/s/ Kelly Fitzgerald Pate
KELLY FITZGERALD PATE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10630418. Public record. Not legal advice.