Opinion

Shirley

Court
District Court, S.D. Illinois
Filed
Mar 7, 2026
Cited by
0 cases
Authority
More cited than 39.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KYLE W. SHIRLEY, )

)

Plaintiff, )

)

vs. ) Case No. 3:24-cv-2503-DWD

)

GADYACES SERRALTA, in his official )

capacity as Acting Director of the United )

States Marshals Service, )

Defendant.

MEMORANDUM & ORDER

DUGAN, District Judge:

On November 18, 2024, Plaintiff Kyle Shirley filed this action requesting judicial

review of the administrative proceedings that affirmed his removal from his position as

a Deputy United States Marshall (“DUSM”) with the United States Marshall Service

(“USMS”). Now before the Court is Defendant Gadyaces Serralta’s, Acting Director,

United States Marshall Service (“Defendant”), Motion for Summary Judgment and

Motion to Dismiss for Failure to State a Claim. For the reasons detailed below, the

Motions are GRANTED.

BACKGROUND

The administrative record provides the following undisputed facts. In September

of 2012, Plaintiff suffered a back injury while arresting a fugitive in the line of duty as a

DUSM. (Doc. 20-1, pg. 148). From the time of his injury to July of 2013, Plaintiff was placed

on light duty status. (Id., pg. 149). Plaintiff’s status was then changed to leave without

pay while on workers’ compensation leave. (Id., pgs. 277-79).

Plaintiff received treatment for his back injury from Dr. David Kennedy (“Dr.

Kennedy”), a neurosurgeon. Dr. Kennedy began to treat Plaintiff in June 2013 and gave a

history of injury not inconsistent with the reports of injury found elsewhere in the record.

According to Dr. Kennedy, Plaintiff’s initial radiographic studies revealed evidence of a

disc herniation at L5-S1 and a pre-surgical MRI demonstrated a synovial cyst at L4-5. The

latter condition Dr. Kennedy did not believe required surgery. A L5-S1 microdiscectomy

was conduct which provided some initial relief. However, Plaintiff’s began to experience

severe right leg pain which Dr. Kennedy attributed to spinal stenosis at L4-5 due a

enlarged synovial cyst. A L-4-S1 fusion was then conducted in December 2014. But, his

pain was not relieved by that operation and, in fact, grew progressively more severe.

New radiographic studies demonstrated that the lateral interbody fusion at L4-5 had not

fused, requiring a third surgery. (Doc. 20-2, pg. 35)

In February of 2015, Defendant proposed Plaintiff’s removal from his position of

DUSM due to a medical inability to perform the functions of the job, but it was ultimately

held in abeyance due to his anticipated return to work. (Id., pg. 127). Plaintiff was cleared

to return to full duty in August of 2015 but was then placed on limited status the

following month for medical reasons. (Id., pgs. 193-200). He was again cleared to return

to work without restrictions in December 2015. (Id., pgs. 201-02).

Defendant received a Physicians Evaluation Report and note from Dr. Kennedy

stating that Plaintiff had suffered a severe decrease of range of motion in his lumbar and

should not work from March 1, 2016, to April 5, 2016. (Id., pgs. 248-50). Dr. Kennedy

authored another Physicians Evaluation Report on June 1, 2016, indicating that Plaintiff

underwent a fourth back surgery. (Id., pgs. 246-47). Defendant’s Reviewing Medical

Officer, Dr. Tufail Shaikh (“Dr. Shaikh”), reviewed the March Physicians Evaluation

Report and recommended an independent medical evaluation and that Plaintiff be

restricted from aggressive enforcement activities. (Id., pg. 204). Dr. Thomas Albus (“Dr.

Albus”) conducted that independent medical review of Plaintiff’s records and issued a

report dated June 9, 2016, finding it unlikely that Plaintiff would ever return to

unrestricted work activities as a DUSM. (Id., pgs. 224-26). Dr. Shaikh reviewed the report

from Dr. Albus and concluded that Plaintiff should be determined as “Not Medically

Qualified” for the position of DUSM because chronic and permanent medical conditions

would prevent him from performing the full duties of the position. (Id., pg. 205).

On July 18, 2016, Defendant issued a Fitness-for-Duty Determination letter to

Plaintiff finding him medically disqualified, which Plaintiff appealed. (Id., pgs. 220-22).

Included in Plaintiff’s appeal was another note from Dr. Kennedy indicating that it was

highly likely that Plaintiff would return to work that December. (Id., pg. 236). Another of

Defendant’s Reviewing Medical Officers, Dr. Frederic Glass (“Dr. Glass”), then reviewed

the previous reports from Dr. Albus, Dr. Shaikh and Dr. Kennedy and recommended that

Plaintiff should again be determined as Not Medically Qualified. (Id., pgs. 206-07).

Defendant again issued Plaintiff a Fitness-for-Duty Determination letter on

November 17, 2016, finding that he was Not Medically Qualified for the DUSM position

due to his condition. (Id., pgs. 208-10). It provided Plaintiff with options related to his

medical disqualification, including the ability to request accommodations and

reassignment to a vacant administrative position. (Id.). Plaintiff did not respond to the

letter in the 14 days he was given to do so and instead requested that Defendant rescind

its Fitness-for-Duty Determination. (Id., pgs. 212-14). Plaintiff attached another Physician

Evaluation Report from Dr. Kennedy to his request. Dr. Kennedy’s report, dated

December 6, 2016, indicated that Plaintiff would be restricted from law enforcement

activities and it was unknown when Plaintiff would reach his maximum medical

improvement. (Id., pgs. 217-18).

Defendant proceeded with the removal process, proposing Plaintiff’s removal

from his position as a DUSM on March 8, 2017. (Id., pgs. 185-89). In Plaintiff’s oral reply,

his representative acknowledged that Plaintiff was not medically fit for duty but asked

that the removal be held in abeyance while Plaintiff underwent another surgery. (Id., pgs.

171-74). On April 20, 2017, Defendant sustained Plaintiff’s removal.

By July 2017, Dr. Kennedy’s prognosis for the Plaintiff was bleak. He noted:

“Additional surgery is recommended and will be completed but I do not expect any

substantial change in his activity restriction based on the fact that he likely to have

residual pain and will have permanent restrictions as noted above.” (Doc. 20-2, pg. 35)

Those restrictions included:

crawling, raising his arm above his shoulders, walking or running on

slippery or uneven surfaces, jumping, kneeling, pushups, carrying more

than 45 pounds and any type of climbing. He is also not able to perform any

type of vigorous exercise or be involved any physical confrontation and

must change his positions from sitting to standing to lying down at his

discretion based on symptoms throughout the course of the day. Based on

these considerations, I believe that he would not be able to fulfill the duties

of a United States Marshall (sic).” (Id.)

Plaintiff later filed for disability retirement on August 1, 2017, stating in his

application that his medical providers believed that his condition is permanent and

prevents him from performing the full duties of a DUSM. (Doc. 20-2, pgs. 5-17). Plaintiff

underwent his fifth back surgery in September of 2017. (Doc. 20-3, pg. 6). By April 20,

2018 found the Plaintiff to have “made substantial improvement and demonstrated an

acceptable range of motion of the lumbar spine in all planes”, that his strength was in tact

in all muscle groups, and that he “believe[d] that it is safe for him to return to work

without restrictions.” (Doc. 20-2, pg. 58)

Plaintiff filed his initial appeal regarding his removal with the Merit Systems

Protection Board (“MSPB”) on August 1, 2018. (Doc. 20-1, pg. 2). Administrative Judge

(“AJ”) Nina Puglia conducted an administrative hearing on Plaintiff’s challenge to his

removal on November 6, 2018. (Doc. 20-2, pg. 233). In that hearing, the AJ heard the

testimonies of Defendant’s Reviewing Medical Officers, Dr. Shaikh and Dr. Glass, who

both concluded that Plaintiff’s condition was likely permanent and rendered him unable

to perform the duties of a DUSM. (Id., pgs. 240-41). Plaintiff’s treating physician, Dr.

Kennedy, disagreed, testifying that after Plaintiff’s latest surgery, he believed that

Plaintiff was capable of return to his position as a DUSM. (Id.).

The AJ issued the MSPB’s Initial Decision on February 1, 2019. (Id., pgs. 233-57). It

determined that a preponderance of the evidence demonstrated that Plaintiff had a

disabling musculoskeletal condition that is disqualifying, that recurrence of Plaintiff’s

back pain could not be ruled out, and that such a “recurrence would pose a reasonable

probability of substantial harm because his position involves a high degree of

responsibility towards the public. […] If he were unable to perform his duties especially

in an emergency, others may be seriously injured.” (Id., pgs. 240-41). The AJ relied on

testimony from Defendant’s Medial Review Officers, Dr. Glass and Dr. Shaikh.

Specifically, Dr. Shaikh testified that Plaintiff’s condition was likely permanent in nature

and would be unable to perform to duties of a DUSM. (Id., pgs. 240-42). He found it

possible, but not probable, that Plaintiff would recover from his condition. (Id., pg. 241).

Dr. Glass’s testimony also alluded to the fact of Plaintiff’s regular use of narcotics for pain

medication, as reflected in his medical records. (Id., pg. 243).

The AJ explained that Plaintiff’s treating physician failed to “provide a reasoned

explanation for his opinion” that Plaintiff’s injury and five subsequent surgeries did not

predispose him to a recurrence of his condition. (Id., pg. 243). The Initial Decision also

noted that Dr. Kennedy’s opinion was contradicted by other evidence, such as Plaintiff’s

own statements that his condition persisted in the oral reply to his removal and in his

application for disability retirement. (Id., pgs. 243-44). Plaintiff also claimed

discrimination and that Defendant failed to offer him another position compatible with

his physical limitations. (Id., pgs. 244-48). However, the AJ found that the record clearly

demonstrated that Plaintiff was offered an administrative position in the Fitness-for-Duty

Determinations and that Plaintiff “did not meet his burden of showing that disability

discrimination or retaliation for protected activity was a motivating factor in his

removal[.]” (Id.). Therefore, the AJ concluded that Plaintiff’s claims failed and his

removal promoted the efficiency of the service. (Id., pgs. 244, 248).

On March 3, 2019, Plaintiff filed his Petition for Review by the full MSPB Board

(“Board”). (Doc. 20-3, pgs. 2-9). On May 23, 2024, the Board denied Plaintiff’s Petition in

its Final Order. (Id., pg. 41). The Board affirmed the AJ’s Initial Decision but modified it

slightly. (Id.). It did so in part because the Board had since “clarified the standard for

analyzing an agency’s charge of inability to perform based on a current medical

condition.” (Id., pg. 45). The standard required Defendant to “establish that the

[Plaintiff’s] medical condition prevents him from being able to safely and efficiently

perform core duties of his position.” (Id.). The Board concluded that Defendant proved

that standard by a preponderance of the evidence. (Id., pg. 46). The Board highlighted

much of the same evidence the AJ cited in the Initial Decision: Dr. Kennedy’s failure to

“address the potential musculoskeletal impairment as a result of five surgeries,”

Plaintiff’s own concession, through counsel, that he was not medically fit for duty, and

that Plaintiff did not elect to request an accommodation in response to Defendant’s

Fitness-for-Duty Determinations in July and November of 2016. (Id., pgs. 46-48). It also

determined that Plaintiff failed to prove his discrimination claims because he “failed to

prove that he is a qualified individual with a disability.” (Id., pg. 49). The Board

concluded that Defendant’s removal of Plaintiff from his position as a DUSM was within

the tolerable limits of reasonableness. (Id., pg. 54).

Plaintiff then appealed the Board’s Final Order to the Equal Employment

Opportunity Commission’s Office of Federal Operations. (Doc. 3-3). It examined

Plaintiff’s discrimination claims and concurred with the Board’s conclusion that such

claims failed. (Id.). Plaintiff then filed the instant case on November 18, 2024. (Doc. 3).

LEGAL STANDARD

Under the Civil Service Reform Act of 1978, district courts may review appeals

from the MSPB alleging violations of the act along with claims of discrimination. Welcher-

Butler v. Brennan, 619 Fed.Appx. 550, 551-52 (7th Cir. 2015) (citing Kloeckner v. Solis, 568

U.S. 41, 55 (2012)).1 Plaintiff’s appeal in this case involves claims that his removal was

based, in part, on disability discrimination. As such, jurisdiction for review of the MSPB’s

Final Order lies with this Court.

Defendant moves for summary judgment to affirm the MSPB’s Final Order that

found Defendant’s removal of Plaintiff from his position as a DUSM to be within tolerable

limits of reasonableness. (Doc. 20). Defendant simultaneously moves for dismissal of

Plaintiff’s claims of discrimination for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). (Id.). Rule 56 provides that summary judgment shall be granted

where “the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56. Rule 8 provides that

a plaintiff state a “short and plain statement of the claim showing that the pleader is

entitled to relief.” FED. R. CIV. P. 8(a)(2).

“A court’s review of an MSPB decision is deferential, and the MSPB’s decision

must be affirmed unless it is ‘(1) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.’” Leonard

1 Appeals from MSPB decisions involving personnel actions without simultaneous claims of discrimination are

otherwise heard exclusively by the United States Court of Appeals for the Federal Circuit. Perry v. Merit Sys. Prot.

Bd., 582 U.S. 420, 425 (2017).

v. McDonough, No. 17 C 9259, 2024 WL 965192, *9 (N.D. Ill. Mar. 6, 2024) (citing 5 U.S.C.

§ 7703(c); Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 916 (7th Cir. 2018)). The arbitrary

and capricious standard is highly deferential; courts will not reverse the decision of the

MSPB when “the agency’s evidence is sufficient to be found by a reasonable factfinder to

meet the evidentiary burden applicable to the particular case.” Jacobs v. Dept. of Justice, 35

F.3d 1543, 1545 (Fed. Cir. 1994). “The question before us is not how the court would rule

upon a de novo appraisal of the facts of the case, but whether the administrative

determination is supported by substantial evidence in the record as a whole.” Hayes v.

Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). This Court’s review of the MSPB’s

decision affirming the removal of Plaintiff from his position is limited to the underlying

administrative record. Mizra v. Dep’t of Treasury, 875 F.Supp. 513, 521 (N.D. Ill. Feb. 9,

1995). Alternatively, when reviewing the MSPB’s decision regarding Plaintiff’s claims of

discrimination in violation of federal law, courts conduct de novo review. Perry, 582 U.S.

at 429 (citing 5 U.S.C. § 7703(c)).

ANALYSIS

An agency may take adverse action “against an employee only for such cause as

will promote the efficiency of the service.” 5 U.S.C. § 7513(a). To satisfy this requirement,

the agency must show by a preponderance of the evidence that the employee's medical

condition is likely to have an adverse impact on the agency's performance of its functions.

See Brown v. Dept. of Navy, 229 F.3d 1356, 1358 (Fed. Cir. 2000); Snyder v. Dept. of Navy, 854

F.3d 1366, 1374 (Fed. Cir. 2017). Plaintiff “bears the burden of establishing error in the

Board’s decision” when seeking judicial review. Harris v. Dept. of Veterans Affairs, 142 F.3d

1463, 1467 (Fed. Cir. 1998) (citing Cheeseman v. Office of Personnel Management, 791 F.3d

138, 140 (Fed. Cir. 1986).

Defendant here argues that substantial evidence in the administrative record

demonstrates that Plaintiff was unable to perform the full duties of a DUSM both at the

time of his removal and during the pendency of the MSPB proceedings. (Doc. 20, pgs. 27-

29). Defendant also asserts that the MSPB complied with the procedural requirements in

reviewing the agency’s removal of Plaintiff from his position. (Id., pgs. 29-30). Plaintiff

responds in opposition that genuine disputes of material fact exist regarding Plaintiff’s

fitness for duty and Defendant failed to engage in the interactive process by failing to

offer Plaintiff accommodation. (Doc. 23, pg. 3-4).

Plaintiff’s first point of argument fails because it misunderstands the applicable

standard of review. Plaintiff highlights that his own physician released him to full duty

in August of 2018. (Id., pg. 3). However, this is only one piece of evidence among many

included in the administrative record.2 That Plaintiff disagrees with how the AJ and the

Board weighed the evidence from both Plaintiff’s treating physician and Defendant’s

Medical Review Officers does not make for genuine dispute of material fact.3

2 Plaintiff also argues that summary judgment is premature because “the full administrative record has not been filed.”

(Doc. 23, pg. 4). However, Defendant filed the record as exhibits to the instant motion. (Docs. 20-1, 20-2, 20-3).

Plaintiff has not sought leave to supplement the record or point to specific exhibits absent from the record.

3 Plaintiff also cites Cleveland v. Policy Management Sys. Corp., 526 U.S. 795 (1999) to argue that it was inappropriate

for the MSPB to consider his application for disability retirement in making its determination. (Doc. 23, pg. 4). But

the Court in that case only provided that such evidence cannot create a “special negative presumption” that would

prevent pursuit of discrimination claim. Cleveland v. Policy Management Sys. Corp., 526 U.S. at 801-02. The MSPB

did not employ such a presumption in this case; it simply considered Plaintiff’s statements in his application as another

piece of evidence within the record that supported Defendant’s removal of Plaintiff from his position. Even without

it, the record provides substantial evidence to support the AJ and MSPB’s decisions.

The AJ’s Initial Decision and the Board’s Final Order were supported by

substantial evidence. In reviewing Plaintiff’s removal from his position, the AJ

determined that Defendant had met the requirements to show “a charge of physical

inability to perform: (1) the disabling condition itself is disqualifying; (2) its recurrence

cannot be ruled out; and (3) the duties of the position are such that a recurrence would

pose a reasonable probability of substantial harm.” (Doc. 20-2, pg. 240 (citing Brown v.

Dept. of the Interior, 121 M.S.P.R. 205, ¶ 8 (2014); Slater v. Dept. of Homeland Security, 108

M.S.P.R. 419 ¶¶ 7, 11 (2008); 5 C.F.R. § 339.206).

As detailed above, the AJ found that the testimony of Defendant’s Medical Review

Officers was more probative than that of Plaintiff’s treating physician, Dr. Kennedy. Dr.

Kennedy’s reports were also considered by Defendant’s Medical Review Officers when

giving their opinions as to Plaintiff’s ability to perform the duties of his position. Dr.

Kennedy’s notes did, indeed, include observations and opinions that Plaintiff would be

unable to return to duty. The AJ also found that Plaintiff conceded the point that he had

a disqualifying condition through statements of Plaintiff’s representative during his oral

reply to the proposal for his removal providing that “as we speak to you today, Deputy

Shirley is not medically fit for duty.” (Doc. 20-2, pg. 240; see also Doc. 20-1 pgs. 172, 174).

The AJ also found that the agency had met its burden of showing that a recurrence

of Plaintiff’s condition could not be ruled out. The AJ noted that Plaintiff “was injured in

2012 and has had five back surgeries since 2013,” and the extensive amount of time

Plaintiff had been out of work since the injury. (Doc. 20-2, pgs. 240-41). The AJ’s decision

relied in part on the testimony of Defendant’s Medical Review Officer, Dr. Shaikh. Dr.

Shaikh testified that Plaintiff’s “full recovery may be possible but was not likely.” (Id.).

Further, Dr. Shaikh testified the chances of someone returning to work successfully is

reduced after each successive back surgery. (Id.). Even Plaintiff’s own treating physician

could not rule out that Plaintiff’s back pain would not recur. (Doc. 20-2, pg. 241).

On the final prong of the analysis, the AJ found that duties of a DUSM are such

that a recurrence of Plaintiff’s condition would pose a reasonable probability of

substantial harm. The AJ noted that the duties of a DUSM “involves a high degree of

responsibility toward the public.” (Doc. 20-2, pg. 241). If Plaintiff were “unable to perform

his duties, especially in an emergency, others may be seriously injured.” (Id.). Based on

the foregoing, the AJ concluded, and the Board confirmed, that Defendant properly

removed Plaintiff for medical inability to perform the duties of his position. (Id.; Doc. 20-

3, pg. 46).

The AJ and Board further found that Plaintiff’s removal promoted the efficiency

of the service and did not exceed the “tolerable limits of reasonableness.” (Doc. 20-2, pg.

242 (citing Brown, 121 M.S.P.R. at ¶ 17); Doc. 20-3, pg. 50). To warrant reversal of

Defendant’s removal decision, Plaintiff had to present “new medical evidence that clearly

and unambiguously demonstrates” that he recovered from his condition and could

perform the duties of his position. (Id. (citing Sanders v. Dept. of Homeland Security, 122

M.S.P.R. 144 ¶ 9 (2015)). The AJ concluded that testimony and evidence from Plaintiff’s

treating physician failed to “clearly and unambiguously demonstrate” that Plaintiff

recovered from his condition and could return to duty as a DUSM. (Doc. 20-2, pg. 242-

43). The AJ cited previous reports from Dr. Kennedy that unsuccessfully returned

Plaintiff to work. Dr. Shaikh’s opinion that “it is difficult to return to even office work

after multiple spinal fusion procedures” and that such surgeries cause “changes to

normal anatomy and physiology of the body’s core.” (Id.). Further, Dr. Kennedy’s

testimony was rebutted by Plaintiff’s statement in his discrimination complaint against

Defendant that he would “always have an impairment due to his back injury and that he

is unlikely to fully recover.” (Id.). The AJ highlighted that Plaintiff still complained of

back pain even after receiving the latest report from his treating physician that he was

cleared to return to service. (Id.).

The AJ and the Board also highlighted substantial evidence that Defendant

engaged in an interactive process regarding offering Plaintiff the ability to request an

accommodation. (Doc. 20-2, pg. 244) Both of the Fitness-for-Duty Determination letters

the Defendant sent to Plaintiff provided Plaintiff with options in light of the finding that

he was medically unqualified. In particular, Defendant offered Plaintiff accommodations

and reassignment to an administrative position and Plaintiff failed to request either in

the time frame provided. (Id.). As a result of the above analysis, the AJ found, and the

Board affirmed, that Plaintiff’s removal promoted the efficiency of the service because

Plaintiff was removed for his inability to perform the duties of his position, he failed to

present new medical evidence that he had clearly and unambiguously recovered from

his condition, and he refused Defendant’s attempts to reassign him. (Id.).

That Plaintiff wishes that this evidence would have been weighed in his favor does

not make for a genuine dispute of material fact. The MSPB’s decision to affirm Plaintiff’s

removal was supported by substantial evidence. Plaintiff’s argument and belief that he

should have been reinstated to his position because his treating physician cleared him to

return does not create a dispute of material fact that would render summary judgment

inappropriate. It is simply Plaintiff wishing that the AJ and the Board had weighed the

evidence in his favor. This Court cannot reweigh that evidence under this deferential

standard of review.

As such, Plaintiff has failed to meet his burden to show that the MSPB’s decision

regarding his removal is arbitrary and capricious, an abuse of discretion, or otherwise not

in accordance with law; obtained without legally required procedures; or unsupported

by substantial evidence. In its review of the record, the Court cannot find the decisions of

the AJ or MSPB to be arbitrary and capricious. Indeed, there was more than ample

evidence in the record to support their findings, rulings and decisions. And there is no

evidence in the record that would suggest that the Plaintiff was afforded a process that

was deficient. Accordingly, Defendant’s Motion for Summary Judgment as to Plaintiff’s

challenge to his removal from his position as a DUSM is GRANTED.

Defendant’s Motion to Dismiss

In appealing his removal to the MSPB, Plaintiff also made claims of disability

discrimination. The MSPB found that Plaintiff “did not meet his burden of showing that

disability discrimination or retaliation for protected activity was a motivating factor in

his removal and his discrimination must fail.” (Doc. 20-2, pg. 248; Doc. 20-3, pgs. 49-50).

After the MSPB upheld his removal, Plaintiff appealed the MSPB’s Final Order to the

Equal Employment Opportunity Commission, Office of Federal Operations (“OFO”).

(Doc. 3-3). The OFO concurred with the MSPB’s finding of no discrimination playing a

role in Plaintiff’s removal from his position. (Id.). Because these discrimination claims

were included in Plaintiff’s appeal to the MSPB and he sought review by the OFO,

Plaintiff’s instant case is considered a “mixed-case,” and jurisdiction for judicial review

of the MSPB’s Final Order falls to the district courts. See Perry, 582 U.S. at 424-26; see also

29 C.F.R. § 1614.302(a) (defining “mixed case complaint” and “mixed case appeals”).

In its Motion to Dismiss Plaintiff’s discrimination claims, Defendant argues that

Plaintiff has failed to state a claim under federal pleading standards. (Doc. 20, pgs. 30-

31). Defendant asserts that Plaintiff’s Complaint lacks clarity as to whether Plaintiff is

asserting such a claim, and thus it fails to meet the notice pleading standard of federal

courts. In particular, the Complaint contains a header that states “THE ONLY CLAIM

RAISED IN THIS COMPLAINT IS THE CHALLENGE TO MY REMOVAL.” (Doc. 3, pg.

2). Plaintiff further states in his Complaint that he is not arguing “that [discrimination]

complaint in this [C]ourt[.]” (Doc. 3, pg. 4). Plaintiff also does not make any attempt to

oppose the Defendant’s Motion to Dismiss in his Response. (Doc. 23).

The United States Court of Appeals for the Seventh Circuit has stated that “a

district court may hold a claim forfeited if a plaintiff fails to respond to the substance of

the defendant’s motion to dismiss.” Boogaard v. Nat’l Hockey League, 891 F.3d 289, 295 (7th

Cir. 2018); see also Mourning v. Dept. of Defense, Case. No. 23-CV-03290-SPM, 2024 WL

2133810, *2 (S.D. Ill. May 13, 2024). Accordingly, Defendant’s Motion to Dismiss

Plaintiff’s claim for discrimination is GRANTED. To the extent Plaintiff’s Complaint

attempts to raise the claim, it is DISMISSED without prejudice.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment and

Motion to Dismiss for Failure to State a Claim (Doc. 20) is GRANTED. Defendant’s

Motion to Stay Discovery (Doc. 31) is DENIED AS MOOT. Defendant’s Motion for

Status Conference (Doc. 36) is DENIED AS MOOT. Plaintiff’s Motion for Leave to File

Electronically (Doc. 35) is GRANTED. Clerk is DIRECTED to also send a copy of the

Order by regular mail to the Plaintiff, Kyle W. Shirley.

SO ORDERED.

Dated: March 7, 2026

/s/ David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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