Petition for Writ of Certiorari — Scott v. Norfolk Southern Corp.

Supreme Court, u.s.

PILED

981138 NOV 6 1998

Case No..:

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

MICHAEL A. SCOTT

Petitioner,

versus

NORFOLK SOUTHERN CORPORATION, et ai,

Respondents.

On Petition for a Wnit of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL A. SCOTT

4753 Longmont Road

Virginia Beach, Virginia

, 23456-5017

, (757) 495-0844

Petitioner Appearing Pro Se

i

QUESTIONS PRESENTED

(1) Whether the District Court erred in dismissing the

plaintiff's claims under the Civil Rights Act of 1866, 42 U.S.C. §

1981, against all defendants and in not allowing him to present

evidence to support such claims?

(2) Whether the District Court erred in refusing to

allow the plaintiff to claim under Title Vii of the Civil Rights Act of

1964, 42 U.S.C. § 2000e ef seg., that his job transfer, on-the-job

harassment and employment termination were due to his black race

and were acts of retaliation for having previously filed a charge of

discrimination with the Federal Equal Employment Opportunity

Commission and subsequent lawsuit based on that charge against

Norfolk Southern Corporation?

i

PARTIES TO THE PROCEEDING

In addition to Norfolk Southern Corporation, individual

defendants David R. Goode, Stephen C. Tobias, Donald W.

Mayberry, Jon L. Manetta, William E. Honeycutt, C. David Vittur,

Donald D. Graab, Artis L. Luttrell, Timothy A. Heilig, Lewis D. Hale,

Jerry R. Gray, Wayne F. Henley, Jeff E. Pair and Jerry W. Clemmer

were parties before the Court of Appeals.

BAS, ath ts -

il

TABLE OF CONTENTS

Questions Presented

Parties To The Proceeding

Table Of Contents

Table Of Citations

Opinions Below .

Statement Of Jurisdiction .

Statutory Provisions Involved

Statement Of The Case

A. Background Of The District Court's Dismissal Of

Petitioner's § 1981 Claim

B. Background Of The District Court's Refusal To

Allow The Petitioner To Claim That The

Harassment, Job Transfer And Discharge Were

Racially Motivated And Acts Of Retaliation Under

Title Vii of the Civil Rights Act of 1964

Reasons For Granting The Writ

I. The Petition Should Be Granted Because The

Opinion Below Conflicts With This Court's Prior

Rulings On Construing Pleadings of Litgants

10

iv

Proceeding Without The Aid Of Professional

Counsel

10

ll. The Petition Should Be Granted Because The

Opinion Below Conflicts With The Requirements Of

Federal Rule Of Civil Procedure 10(c) And The

Opinion Of Other Federal Courts Of Appeals

; ; ; ; : ; 12

Conclusion ; ; . ; , , 15

V

TABLE OF CITATIONS

Cases Cited:

Balistreri v. Pacifica Police Dept, 901 F.2d 696 (9" Cir.

1990)

, 11

Beacon Theatres, Inc. v. Westover, 79 S.Ct. 948, 359 U.S.

500, 3 L.Ed.2d 988 (1958)

: , . 12

Beaudett v. City of Hampton, 775 F.2d 1274 (4" Cir. 1985)

‘ R ; ; ; ; 14

Burrs v. State Department of Public Welfare of S. C., 491

F.2d 762 (4" Cir. 1974)

‘ ; ; 11

Canty v. City of Richmond, Va. Police Dept., 383 F.Supp.

1396(E.D.Va. 1974), affirmed, 526 F.2d 587 (4 Cir.

1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 802, 46

L.Ed.2d 654 (1976)

: , 11

Conley v. Gibson, 355 U.S. 41, 45-46 78 S.Ct. 99, 101-

102, 2 L.Ed.2d 80 (1957)

; ‘ ‘ 11

Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42

(2 Cir. 1991)

15

vi

Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50

L.Ed.2d 251 (1976)

Fachee v. Daoust Const. Co., 185 F.2d 23 (7" Cir. 1950)

Fayetteville Investors v. Commercial Builders, Inc., 936

F.2d 1462 (4 Cir. 1991)

Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30

L.Ed.2d 652 (1972)

Hall v. Bellmon, 935 F.2d 1106, 1112 (10 Cir. 1991)

Hamilton Foundry & Machine Co. v. Intemational Molders

& Foundry Workers, 193 F.2d 209 (6" Cir. 1951, cert.

denied, 72 S.Ct. 1060, 343 U.S. 966, 96 L.Ed. 1363

Hemandez v. Coughlin, 18 F 3d 133, 136 (2"4 Cir.), cert.

denied, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994)

Hoff Supply Co. v. Allen-Bradley Co., 768 F.Supp. 132,

134 (M.D.Pa. 1991)

Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85

L.Ed. 1392 (1941)

11

15

14

11

15

14

11

15

12

vii

Hughes v. Rowe, 101 S.Ct.173, 449 U.S. 5, 66 L-Ed.2d

163 (1980)

Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621

(9% Cir. 1988)

Kolbeck v. LIT Am., Inc., 923 F.Supp. 557, 560 (S.D.N.Y.

1996)

Neville v. American Republic Ins. Co., 912 F.2d 813, 814,

(5"" Cir. 1990)

Optical Alignment Sys. & Inspection Servs., Inc. v.

Alignment Servs., Inc., 909 F.Supp. 58 (D.N.H. 1995)

Park-In Theatres v. Paramount-Richards Theatres, DC,

185 F.2d 407 (3% Cir. 1950), cert. denied, 71 S.Ct

1017, 341 U.S. 1950, 95 L.Ed. 1373

Rice v. Olson, 324 U.S. 786, 791-92, 65 S.Ct. 989, 89

L.Ed. 1367 (1945) __

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,

1686, 40 L.Ed.2d 90 (1974)

11

14

15

15

15

15

12

11

vii

Schnell v. City of Chicago, 407 F.2d 1084 (7 Cir. 1969)

Simons v. Montgomery County Police Officers, 762 F.2d

30 (4" Cir. 1985)

Sinclair Refining Co. v. Stevens, 123 F.2d 186 (8 Cir.

1941), cert.denied, 62 S.Ct. 632, 315 U.S. 804, 86

L.Ed 1203

Solis-Ramirez on behalf of Solis v. U. S. Dept. of Justice,

758 F.2d 1426 (11% Cir. 1985)

Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d

429 (7' Cir. 1993)

Statutes Cited:

Civil Rights Act of 1866, 42 U.S.C. § 1981

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg.

28 U.S.C. § 1254(1)

Rules Cited:

Federal Rule of Civil Procedure 8(f), 28 U.S.C.

15

14

14

15

15

passim

passim

passim

ix

Federal Rule of Civil Procedure 10(c), 28 U.S.C.

Federal Rule of Civil Procedure 12(b)(6), 28 U.S.C.

Federal Rule of Civil Procedure 15, 28 U.S.C.

Federal Rule of Civil Procedure 56, 28 U.S.C.

Other Authority Cited:

Moore’s Federal Practice 3D, § 10.05[1]

passim

passim

passim

passim

13

TO THE HONORABLES, THE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES:

Petitioner Michael A. Scott (“Scott”), as pro se, respectfully

requests that a wnt of certiorari be issued to re‘iew the judgment of

the United States Court of Appeals for the Fourth Circuit in this

case.

OPINIONS BELOW

The unpublished opinion of the United States Court of

Appeals for the Fourth Circuit is provided in Appendix A. The

opinion and order of the district court regarding the petitioner's claim

under the Civil Rights Act of 1866, 42 U.S.C. § 1981 is provided in

Appendix C. The opinion and order of the district court denying the

petitioner to claim his job transfer, harassment and employment

termination as racially motivated and as acts of retaliation under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is

provided in Appendix D.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

Fourth Circuit (“Court of Appeals”) was entered on June 24, 1998

(App. A). The Court of Appeals denied a timely petition for

rehearing and suggestion for rehearing in banc on August 10, 1998

(App. B).

The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

ee

STATUTORY PROVISIONS INVOLVED

The Civil Rights Act of 1964, 42 U.S.C. § 2000e ef seq.,

provides, in pertinent part, the following:

It shall be an unlawful employment practice

for an employer to discriminate against any of his

employees . . . because he has opposed any ;

practice made an unlawful employment practice by |

this subchapter, or because he has mate a

charge, testified, assisted, or participated ‘n any

manner in an investigation, proceeding, o; hearing ,

under this subchapter. |

The Civil Rights Act of 1866, 42 U.S.C. § 1981 provides, in

pertinent part, the foliowing:

All persons within the jurisdiction of the

United States shall have the same right in every

State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by

white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

For purposes of this section, the term

“make and enforce contracts” includes the making,

performance, modification, and termination of

contracts, and the enjoyment of ail benefits,

privileges, terms, and conditions of the contractual

relationship.

Federal Rule of Civil Procedure, 28 U.S.C., Rule 8(f)

provides:

All pleadings shall be so construed as to do

substantial justice.

Federal Rule of Civil Procedure, 28 U.S.C., Rule 10(c)

provides, in pertinent part, the following:

A copy of any written instrument which is an exhibit

to a pleading is a part thereof for all purposes.

STATEMENT OF THE CASE

The fundamental question in this case is whether litigants

are entitled to have the exhibits appended to their pleadings and the

contents therein considered and construed by the district court in

deciding a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) and a motion for summary judgment under Federal Rule of

Civil Procedure 56. To fully appreciate the significance of the

issues presented by this case, it is essential to consider its

procedural background.

A. Background Of The District Court's Dismissal Of

Petitioner's § 1981 Claim.

On March 11, 1996, Scott filed a 32 count pro se complaint

against his former employer Norfolk Southern Corporation (“NS’),

and 14 individual executives, managers and supervisors of NS

(collectively referred to hereinafter as “Individual Defendants’).

Scott claimed that he had been harassed, transferred and

discharged because of his black race and as acts of retaliation

against him for having previously filed a charge of discrimination

against NS with the Federal Equal Employment Opportunity

Commission (“EEOC”) and a subsequent lawsuit in the United

States District Court for the Eastern District of Virginia against NS

based on that charge. The district court permitted Scott to amend

his complaint three times; a fourth motion to amend was denied on

June 6, 1996. NS and the Individual Defendants moved to dismiss

the third amended complaint under Federal Rule of Civil Procedure

12(b)(6) on May 7, 1996. In August 1996, the district court

dismissed twenty-four (24) of the thirty-two (32) counts alleged in

the third amended complaint against NS, including the § 1981 claim,

and dismissed all claims against the Individual Defendants. The

district court granted Scott leave to re-plead the eight (8) remaining

counts against NS which included his claim under Title VIl for

retaliation and racial discrimination. Thereafter, Scott filed a motion

for reconsideration with the district court asking it to reinstate his §

1981 claim. The district court denied that motion. Discovery was

Stayed in the case until after the district court ruled on the

defendants’ motion to dismiss, which occurred on August 5, 1996.

On August 16, 1996, Scott filed his fifth amended complaint

pursuant to the district court's order at the August 5, 1996 hearing,

which NS answered on September 3, 1996. The eight counts

included in the fifth amended complaint were: (1) Title Vil racial

discrimination and retaliation; (2) personal injury under the Federal

Employers’ Liability Act (“FELA”); (3) assault and battery; (4)

wrongful discharge under Virginia law; (5) intentional infliction of

emotional distress under the FELA; (6) negligent infliction of

emotional distress under the FELA; (7) intentional infliction of

emotional distress under Virginia law; and (8) negligent infliction of

emotional distress under Virginia law.

comptailt was Scott's pr on discrimination owe E) and

supporting affidavit (App. F) he filed with the EEOC against NS in

March 1996 which gave rise to the case at bar. In the EEOC

charge of discrimination, Scott alleged, in part, the following:

1. | was hired by the Respondent on August 16,

1985 as a Management Trainee. | filed a

i eaetenenneieeiniiaiiaaaiidinaiiasial

charge of discrimination with the EEOC during

January, 1995 against the Respondent and

afterwards | was harassed through increased

work load and close scrutiny. During the court

action involving my charges, | was told to resign

as part of settlement or be sent to some place |

did not like. After the court proceedings, | was

told of my job abolishment and mandatory

transfer on February 7, 1996 and to report to

work in Decatur, Illinois on February 16, 1996. |

was discharged from the position of Mechanical

Foreman on February 16, 1996.

3. | believe | was harassed, transferred, and

discharged because of my race, Black, and as

an act of retaliation because | filed a charge with

the EEOC, all in violation of Title VII of the Civil

Rights Act of 1964, as amended.

(App. E). In the EEOC affidavit, Scott alleged, in part, the following:

Last summer, W. F. Henley, a White

General Foreman, made threats of violence/bodily

harm and death against me because | filed the

charge. He was one of the persons | accused

concerning sexual harassment.

J. R. Gray, a White Assistant Master ___—

Mechanic; D. D. Graab, a White Master Mechanic;

J. W. Clemmer, a White General Foreman; and J.

E. Pair, a White Engineer harassed me by making

accusations that | was not participating with other

supervisors, not being a team player with other

White supervisors, and not regularly attending

Safety meetings.

6

J. W. Clemmer stated | was an

incompetent Black Engineer.

| was given more and bigger projects than

J. E. Pair, J. A. Scott, and J. W. Clemmer to be

completed in the same length of time. J. R. Gray

gave these assignments through J. E. Pair.

| was followed by private investigators

hired by the Respondent. | was able to obtain the

evidence to establish | was being followed. | was

discharged after | took a letter to J. R. Gray which

complained about being followed by the private

investigators.

(App. F). Scott's third amended complaint (]] 66, 68-70) clearly

established “April 1994”, “January 1995” and “Summer 1995” as the

dates from which the harassment, and ultimately the transfer and

discharge, he alleged in the third amended complaint began and

made numerous specific allegations of racial discrimination which

had occurred since those dates. Indeed, Scott made several

specific allegations of racial harassment, transfer and discharge

enumerated in his third amended complaint (fj 69-78, 90-93, 103-

106) which supported, echoed and further explicated the allegations

he made in his EEOC charge of discrimination and its supporting |

affidavit appended as exhibits to the third amended complaint. |

Scott alleged in ff] 69-78 of the third amended complaint that the

specific racially harassing conduct was made “in reaction to” and or

‘after’ he filed the January 1995 EEOC charge of discrimination

against NS. The instant case was filed in March 1996 and,

therefore, any of his allegations cognizable under § 1981 were

timely.

Significantly, the district court, in dismissing Scott's § 1981

claim against all defendants, stated, in part, the following:

|

[T]he statute of Limitation under 42 U.S.C.

§ 1981 is two years . . . Scott's EEOC charge and

subsequent Title Vil lawsuit alleged male-on-male

sexual harassment. Scott has not alleged that he

was the victim of racial discrimination within the two

year Statute of Limitation.

(App. C at 4). Scott filed his initial pro se complaint

in the underlying action on March 11, 1996.

Therefore, Scotts § 1981 claim should have

encompassed racially discriminatory conduct that

was alleged to have occurred since March 11,

1994. In apparent direct contrast in its decision

granting Scott leave to amend his Title Vil racial

discrimination and retaliation claim, the district

court stated, in part, the foliowing:

As to Scotts claims against Norfolk

Southern, Defendants contend that Scott's

allegations relate to events which occurred before

the 300 day deadline preceding the EEOC filing,

and are thus barred under 42 U.S.C. § 2000e-5(e).

Scott’s makes several allegations in the EEOC

charge and in his Complaint that are not dated

so the Court cannot determine in what time period

these events happened.

Id. at 3 (emphasis added). Interestingly, the district court apparently

considered the allegations Scott made in the EEOC charge in

deciding to grant him leave to amend his Title VII claim for racial

discrimination and retaliation, but apparently failed to do so in

dismissing Scott's § 1981 claim and in refusing to allow him to claim

that the harassment, job transfer and discharge were racially

motivated and acts of retaliation under Title VII.

B. Background Of The District Court’s Refusal To Allow

The Petitioner To Claim That The Harassment, Job

Transfer And Discharge Were Racially Motivated And

Acts Of Retaliation Under Title Vil Of The Civil Rights

Act Of 1964.

On December 16, 1996, NS filed motions to dismiss and for

summary judgment, filing in support of the motions Scott's

deposition, exhibits, and affidavits of Respondents Jerry R. Gray,

Jeff E. Pair, and Timothy A. Heilig, and NS Police Director, Steven

G. Hanes. Scott filed a brief in opposition, exhibits and his own

affidavit. Following the briefing, a hearing was held on January 28,

1997 during which the district court granted summary judgment for

NS on Scott's Title Vil equal compensation and promotion claims,

and on the intentional infliction of emotional distress counts under

both Virginia law and the FELA. The district court denied NS’s

motions with respect to the remaining claims.

Scott argued to the district court that he was contending his

job transfer, on-the-job harassment and employment termination

were due to his black race and were acts of retaliation for having

previously filed a charge of discrimination with the EEOC against

NS. However, the district court articulated that while Scott was then

apparently contending that his transfer, harassment and discharge

were both retaliatory and racially motivated, the specific theories

pleaded in the fifth amended complaint were racial discharge and

retaliatory transfer, and not retaliatory discharge or racial transfer

and, therefore, limited his claims to his fifth amended complaint

allegations. (Hearing, Tr. 1/28/97 at 37). In its opinion and order,

the district court stated:

In Scotts brief in opposition to the

defendant's motion for summary judgment, and at

the January 28, 1997 hearing, Scott also argued

that his termination was in retaliation for filing

charges with the EEOC and related lawsuits, and

EO

9

that his transfer was racially motivated. This Court

has granted Scott numerous opportunities to

amend his complaint. Nevertheless, Scott has

never made such allegations in any of his amended

complaints. Accordingly, the Court will not allow

him to advance these new theories at this late

Stage of the proceedings.

(App. D at 8, n. 2).

Subsequently, NS renewed its motion to dismiss the Title

Vil retaliatory transfer claim in Count | of the fifth amended

complaint at the February 14, 1997 motion in Limine hearing. The

district court granted the motion and dismissed the retaliatory

transfer claim at that time. A jury was selected on February 18,

1997 and tial was continued until March 24, 1997. Following the

jury deliberations on the seventh and eighth day of tral, the jury

returned a verdict in favor of NS with respect to Scott’s Title VII

racial harassment and racial discharge claims, the wrongful

discharge claim under Virginia law, and the assault and battery

claims. The jury returned a verdict against NS and in favor of Scott

on the FELA injury claim. During the tral, the district court did not

allow Scott to present any evidence of promotion denials and

disparate pay (both cognizable under the dismissed § 1981 claim)

because it had previously granted NS summary judgment on those

Title Vil claims. Transcripts of the district court's hearings on the

Respondents’ motion to dismiss the third amended complaint

(August 5, 1996), and NS’s motions to dismiss and for summary

judgment on the fifth amended complaint (January 28, 1997) are a

part of the record in this case.

Scott noted an appeal on April 10, 1997 against NS and the

Individual Defendants, which included an appeal of the district

court's dismissal of his Title VII retaliation claim (and its refusal to

allow Scott to claim both racial and retaliatory harassment, transfer

and discharge) against NS and dismissal of his § 1981 claim

10

against all Respondents. The Court of Appeals vacated and

remanded Scott's Title Vil retaliatory transfer claim against NS to

the district court, but affirmed, without opinion, the remainder of the

district court's rulings appealed by Scott (App. A).

Taken together, the import of the Court of Appeals and the

district court's ruling is clear. In refusing to consider and construe

Scotts EEOC charge of discrimination and its supporting affidavit

securely appended to and referenced in both the third and fifth

amended complaint, the opinions below imply that a litigant who

attaches to his complaint documents which contain specific

allegations that are fountainhead of his complaints has no right to

rely on those documents and their allegations as part of his

complaint to support his legal claims, and also ignores or trivializes

the important role of the Federal Rules of Civil Procedure, Rules 8(f)

and 10(c), in construing pleadings.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED BECAUSE THE

OPINION BELOW CONFLICTS WITH THIS COURT'S PRIOR

RULINGS ON CONSTRUING PLEADINGS OF LITIGANTS

PROCEEDING WITHOUT THE AID OF PROFESSIONAL

COUNSEL.

Scott's petition for wrt of certiorari should be granted

because the opinion below conflicts with this Courts important

settied precedents with regard to the standards under Federal Rule

of Civil Procedure 12(b)(6) courts should apply when construing the

complaint of a litigant who is proceeding without the aid of counsel.

In delineating the contours of these standards, this Court has

consistently held that it is settled law that allegations such as those

presented by Scott in his third and fifth amended complaint,

“however inartfully pleaded” are held “to less stringent standards

11

than formal pleadings drafted by lawyers . . .” Haines v. Kemer,

404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972);

Hughes v. Rowe, 101 S.Ct.173 (1980), 449 U.S. 5, 66 L-Ed.2d 163.

This Court reaffirmed the principles of Haines in Estelle v. Gamble,

429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976): “As

the Court unanimously held in Haines v. Kemer, 404 U.S. 519 [92

S.Ct. 594, 30 L.Ed.2d 652] (1972), a pro se complaint, ‘however

inartfully pleaded,’ must be held to ‘less stringent standards than

formal pleadings drafted by lawyers’ and can only be dismissed for

failure to state a claim if it appears ‘beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitle

him to relief’ Id., at 520, 521 [92 S.Ct., at 595-596] quoting Conley

v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 101-102, 2 L.Ed.2d 80)

(1957).” The issue is not whether Scott was likely to ultimately

prevail on his § 1981 claim, “but whether the claimant is entitled to

offer evidence to support the claims. Indeed it may appear on the

face of the pleading that a recovery is very remote and unlikely but

that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94

S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Court of Appeals and

other lower courts have appropriately applied with special care

these standards with regard to pro se complainants pleading civil

rights claims in that “district courts must be especially solicitous of

civil rights plaintiffs.” Canty v. City of Richmond, Va. Police Dept.,

383 F.Supp. 1396 (E.D.Va. 1974), affirmed, 526 F.2d 587 (4 Cir.

1975), cert. denied., 423 U.S. 1062, 96 S.Ct. 802, 46 L.Ed.2d 654

(1976); Burs v. State Department of Public Welfare of S. C., 491

F.2d 762 (4% Cir. 1974); Hemandez v. Coughlin, 18 F.3d 133, 136

(2"¢ Cir.), cert. denied, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994);

Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9% Cir. 1990).

Scott concedes that the district court did allow him to

amend his complaint four times. However, Scott takes exception to

the district court’s finding that there was no set of facts provable by

him in the third amended complaint for his § 1981 claim against all

defendants. Indeed, the district court allowed Scott to amend his

Title Vil claim against NS which also included allegations of racial

12

discrimination. Ironically, the time limitations for a Title Vil action

was 300 days as compared to 2 years for a § 1981 claim. See App.

C at 3, 4. It is now established doctrine that pleadings should not

be scrutinized with such technical nicety that a meritorious claim

should be defeated, and even if the claim is insufficient in

substance, it may be amended to achieve justice. Rice v. Olson,

324 U.S. 786, 791-92, 65 S.Ct. 989, 89 L.Ed. 1367 (1945); Holiday

v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392

(1941). Despite the number of times the district court allowed Scott

to amend his complaint, it should have given him the benefit of a

liberally construed complaint (with its attached exhibits) in the spirit

embodied in Federal Rules of Civil Procedure 8(f), 10(c) and 15.

Beacon Theatres, Inc. v. Westover, 79 S.Ct. 948, 359 U.S. 500, 3

L.Ed.2d 988 (1958).

Scott's petition should be granted so that this Court may

affirm the importance of its long standing holdings on construing

complaints for litigants invoking the federal judicial machinery

without professional counsel for resolution of their complaints, and

so that it may confirm for the first time the applicability of the

unambiguous language of Federal Rule of Civil Procedure 10(c) to

written documents attached to a pleading and how such documents

and their contents should be construed with the pleading.

THE PETITION SHOULD BE GRANTED BECAUSE THE

OPINION BELOW CONFLICTS WITH THE REQUIREMENTS OF

FEDERAL RULE OF CIVIL PROCEDURE 10(c) AND THE

OPINION OF OTHER FEDERAL COURTS OF APPEALS.

Scott's petition for wnt of certiorari should be granted

because the opinion below conflicts with the unambiguous

language of Federal Rule of Civil Procedure 10(c) and the opinion

of other federal courts of appeals that have construed pleadings

with exhibits attached under Rule 10(c).

13

As stated in section B above, the district court concluded

that Scott had “never” made allegations in any of his amended

complaints that the harassment, job transfer and discharge were

racially motivated and acts of retaliation for having previously filed

an EEOC charge. That conclusion was clearly erroneous. Scott

appended to his fifth amended complaint the EEOC charge of

discrimination and supporting affidavit he filed with the EEOC in

March 1996 as exhibits and made reference to them in the fifth

amended complaint (App. E & F). Both the EEOC charge of

discrimination and affidavit made a specific allegation that Scott was

harassed, transferred and discharged because of his black race

and as an act of retaliation for having previously filed an EEOC

charge against NS.

Federal Rule of Civil Procedure 10(c) provides, in pertinent

part, the following: “A copy of any {written instrument] which is an

exhibit to a pleading is a part thereof for all purposes.”

(emphasis added). Moreover, ‘“[tlhe contents of the written

instrument will be considered in determining the party’s claim

for relief or defense or for any motion for relief.” Moore’s Federal

Practice 3D, § 10.05[1] (emphasis added). The issue is not how

many times the district court allowed Scott to amend his complaint,

but rather how the district court actually construed the operative

complaint in deciding the defendant's dispositive motions. Scott's

EEOC charge of discrimination and affidavit securely attached as

exhibits to his third and fifth amended complaint and referred to in

the complaints were the inception from which his Title VIl and §

1981 claims grew and it was clear from a review of the third and fifth

amended complaint that those allegations alleged therein and in the

EEOC charge of discrimination and affidavit were the germane

issues before the district court and set the context of Scott's

complaints and concerns. Casting the circumstances of this case in

this light, the defendants had sufficient notice of Scott's complaints,

allegations and real concerns. “Where the context, as here, makes

Clear a litigant's essential grievance, the complainant's additional

invocation of general legal principles need not detour the district

14

court from resolving that which the litigant himself has shown to be

his real concern.” Beaudett v. City of Hampton, 775 F.2d 1274 (4"

Cir. 1985).

The district court's denial of Scott to claim the harassment,

job transfer and discharge as both racially motivated and retaliatory

flies-in-the-face of the liberal standards adopted by the courts in

construing pleadings, especially pro se pleadings in civil rights

litigation. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621

(9% Cir. 1988). Despite the number of times Scott was allowed to

amend his complaint, he consistently appended the EEOC charge

of discrimination and affidavit as exhibits to each amended

complaint because of the specific allegations contained in them.

The district court presumably recognized its responsibility to

construe the complaint exhibits under Rule 10(c) in deciding

dispositive motions, but failed to apply that standard to Scott's

exhibits securely attached to his third and fifth amended complaint

(App. C at 2).

In denying Scott to claim the harassment, job transfer and

discharge as both racially motivated and retaliatory conduct, the

district court either failed to apply or ignored the important

requirements in Federal Rule of Civil Procedure 10(c) that “any

[written instrument] which is an exhibit to a pleading is a part

thereof for all purposes.” Fed. R. Civ. P. 10(c) (emphasis added).

The district court's ruling, and the Court of Appeals affirming that

ruling, articulated above regarding Scott's Title Vil claim trivializes

the effect of Rule 10(c) and conflicts with the opinion and approach

of other courts of appeals, including the Fourth Circuit, to the

application of Fed. R. Civ. P. 10(c) to exhibits attached to pleadings.

See Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d

1462 (4" Cir. 1991) (exhibits to complaint considered in deciding

motion to dismiss); Simons v. Montgomery County Police Officers,

762 F.2d 30 (4" Cir. 1985); Sinclair Refining Co. v. Stevens, 123

F.2d 186 (8" Cir. 1941}, cert. denied, 62 S.Ct. 632, 315 U.S. 804, 86

L.Ed. 1203; Hamilton Foundry & Machine Co. v. Intemational

pees cee

Molders & Foundry Workers, 193 F.2d 209 (6 Cir. 1951), cert.

denied, 72 S.Ct. 1060, 343 U.S. 966, 96 L.Ed. 1363; Park-in

Theatres v. Paramount-Richards Theatres, DC, 185 F.2d 407 (3°

Cir. 1950), cert denied, 71 S.Ct. 1017, 341 US. 1950, 95

L.Ed.1373; Solis-Ramirez on Behalf of Solis v. U.S. Department of

Justice, 758 F.2d 1426 (11" Cir. 1985); Hall v. Bellmon, 935 F.2d

1106, 1112 (10" Cir. 1991) (written document deemed attached to

complaint and incorporated as exhibit therein considered in

subsequent motion to dismiss complaint); Cortec Industnes, Inc. v.

Sum Holding L.P., 949 F.2d 42, 47 (2-4 Cir. 1991) (we have held

that the complaint is deemed to include any written instrument

attached to it as an exhibit); Hoff Supply Co. v. Allen-Bradley Co.,

768 F.Supp. 132, 134 n.3 (M.D.Pa. 1991) (distributor agreements

incorporaied as exhibits to complaint considered in ruling on

sur “ary judgment motion); Optical Alignment Sys. & Inspection

Servs., Inc. v. Alignment Servs., Inc., 909 F.Supp. 58, 60 (D.N.H.

1995) (in ruling on motion to dismiss, court can consider documents

attached to complaint or expressly incorporated by reference);

Kolbeck v. LIT Am., Inc., 923 F.Supp. 557, 560 (S.D.N.Y. 1996)

(citing Moore’s, court considered exhibits mentioned in and

attached to pleadings in deciding motion to dismiss); Venture

Assoc. Com. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7% Cir.

1993); Neville v. American Republic Ins. Co., 912 F.2d 813, 814,

n.1 (5 Cir. 1990); Fachee v. Daoust Const. Co., 185 F.2d 23 (7

Cir. 1950); Schnell v. City of Chicago, 407 F.2d 1084 (7" Cir.

1969).

CONCLUSION

This case presents a question of exceptional importance --

whether a litigant is entitled to have the written exhibits and their

contents appended to a pleading construed as part of the pleading

in opposing a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and

a motion for summary judgment under Fed. R. Civ. P. 56. If the

opinion below is allowed to stand, the Court of Appeals and district

courts approach to construing Scotts third and fifth amended

16

complaints will have thwarted the liberal approach of the Federal

Rules of Civil Procedure to pleading and, therefore, held Scott's pro

se complaints to standards not envisioned by this Court. By

granting Scott's petition for certiorari, however, this Court can

correct the Fourth Circuit's decision, which defies this Court's long

standing holdings that a claimant proceeding without the aid of

counsel should have his pleadings held to “less stringent standards”

than those “drafted by lawyers”; can correct the erroneous fact-

finding of the district court regarding Scott's § 1981 claim against all

defendants; and can correct the Court of Appeals and district

court's erroneous application of Fed. R. Civ. P. 10(c) to the manner

in which they construed Scott's third and fifth amended complaints.

Accordingly, the petitioner, Michael A. Scott, respectfully

requests that his petition for wrt of certiorari be granted.

on pay

Meh ae Py,

Michael A. Scott

Petitioner, pro se

Michael A. Scott

4753 Longmont Road

Virginia Beach, Virginia

23456-5017

(757) 495-0844