                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA


    JEMAL A. CHEATHAM,
               Plaintiff,
          v.
                                                                     Civil Action No. 18-03026 (CKK)

    CHAD WOLF, et al.,
               Defendants.



                                        MEMORANDUM OPINION

         Plaintiff, appearing pro se and in forma pauperis (“IFP”), is a resident of Ruther Glenn,

Virginia. He sues the Department of Homeland Security (“DHS”) and the Acting Secretary of

DHS. 1 See Complaint (“Compl.”), ECF No. 1 at caption. The Complaint is far from a model in

clarity, but it appears that Plaintiff is suing DHS, more specifically, DHS subsidiary agency,

Federal Emergency Management Agency (“FEMA”), for alleged violations of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. See Compl. at 1–2; Pl.’s Opp. at 2–

3, 12–16. Before the Court is Defendants’ Motion to Dismiss, ECF No. 11, and Memorandum in

Support (“Def’s Mem.”), ECF No. 11-1. The Court shall deny Defendants’ Motion to Dismiss

WITHOUT PREJUDICE and shall allow Plaintiff leave to amend the Complaint.

                                            I.       BACKGROUND

         Plaintiff filed this matter on December 3, 2018. Summonses were issued on February 6,

2019, and the United States Attorney for the District of Columbia was served, see Fed. R. Civ. P.




1
  Plaintiff first sued then-Acting DHS Secretary, Kirstjen M. Nielsen, see Compl. at caption, and then later substituted
then-Acting DHS Secretary, Kevin K. McAleenan, see Opposition to Motion to Dismiss (“Pl.’s Opp.”), ECF No. 13,
at caption, 1 n.1. The current Acting Secretary of the DHS is Chad Wolf, and he is automatically substituted as
Defendant in his official capacity for his predecessor pursuant to Fed. R. Civ. P. 25(d).

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12(a)(2), on March 20, 2019. See Return of Service Affidavit, ECF No. 6. Plaintiff moved for

default, see Affidavit for Default, ECF No. 7, and the Clerk of Court entered default against

Defendants on April 18, 2019. See Clerk’s Entry of Default, ECF No. 8. However the entry of

default was vacated on May 7, 2019, because the deadline to file an answer had not yet elapsed,

see May 5, 2019 Min. Ord. Additionally, DHS had not yet been served. See Fed. R. Civ. P. 4(i)(1),

(2).

        In the interim, on May 20, 2019, Defendants filed the pending Motion to Dismiss. Plaintiff

filed an Opposition on May 28, 2019, to which Defendants filed a Reply (“Def.’s Rep.”), ECF No.

14, on June 10, 2019. On July 19, 2019, the Acting DHS Director was served with process. See

Return of Service Affidavit, ECF No. 15. The Clerk of the Court reissued summonses, see ECF

No. 16, for the Department of Homeland Security on August 13, 2019. DHS was then served on

September 20, 2019. See Return of Service Affidavit, ECF No. 17.

                             II.     LEGAL STANDARDS & DISCUSSION

        Defendants move to dismiss pursuant to Federal Rules 4(m), 12(b)(1), and 12(b)(6). See

Def.’s Mem. at 2–4. In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a

court must “treat a complaint's factual allegations as true . . . and must grant a plaintiff ‘the benefit

of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011). Where a plaintiff is proceeding pro se, the Court must consider all of plaintiff's

filings in toto when assessing a motion to dismiss. See Richardson v. United States, 193 F.3d 545,

548 (D.C. Cir. 1999).




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               Service of Process

       First, Defendants move to dismiss based on Plaintiff’s purported failure to comply with

Fed. R. Civ. P. 4(m). Def.’s Mem. at 2. A party may move under Federal Rule of Civil Procedure

12(b)(5) to dismiss a complaint for insufficiency of service of process. “Upon such a motion, the

plaintiff carries the burden of establishing that [she] has properly effected service” as is required

under Rule 4. See Koerner v. United States, 246 F.R.D. 45, 46 (D.D.C. 2007) (internal quotations

and citation omitted). “[U]nless the procedural requirements for effective service of process are

satisfied, a court lacks authority to exercise personal jurisdiction over the defendant.” Candido v.

Dist. of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007). Rule 4(m) requires that service of

summons and the complaint be made upon the defendant “within 90 days after the complaint is

filed[.]” Fed. R. Civ. P. 4(m). However, courts “must extend the time for an appropriate period”

if the plaintiff shows good cause for failure to effect timely service. See id.”

       Defendants argue that Plaintiff failed to serve DHS within 90 days in accordance with

Federal Rule of Civil Procedure and that he has failed to proffer any reason constituting good cause

for the delay. Def.’s Mem. at 2; Def.’s Rep. at 1–3. Plaintiff states that he was unsure of how to

perfect service on the agency. Pl.’s Opp. at 1.

       The Court finds good cause for the delay. Because Plaintiff is proceeding IFP, the Court

officers are responsible for effecting service of process based on information that he provides. See

28 U.S.C. § 1915(d). While Plaintiff still maintains the burden of establishing the validity of

service and must demonstrate that the procedure satisfied the requirements of Rule 4, see Light v.

Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987), the actual service of process is to be performed by the

United States Marshals Service, see 28 U.S.C. § 1915(d). Generally, pro se plaintiffs who depend

on Court officers for executing service should not be penalized for a Court officer's failure to effect



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service of process. Ray v. Experian, Inc., No. 08–0114 (RCL), 2009 WL 1255114 at *1 (D.D.C.

Apr. 28, 2009); see Mondy v. Sec'y of the Army, 845 F.2d 1051, 1060 (D.C. Cir. 1988)

(MacKinnon, J. concurring) (finding that service mistakes were not committed by pro se plaintiff

and that he was “entitled and required to rely on the Marshal to serve the defendant or the United

States Attorney within the statutory time period.”); Thomas v. Fed. Aviation Admin., No. 05–2391,

2007 WL 219988, at *4 (D.D.C. Jan. 25, 2007) (finding “good cause” for the delay in service of

process on named defendants where, due to Clerk's Office error and “[t]hrough no fault of

Plaintiff's,” the summonses and complaints were not timely served).

       For all of these reasons, and because all Defendants have since been served, and Defendants

have not offered any argument to suggest that they were prejudiced by this delay, the Court

declines to dismiss this matter pursuant to Fed. Rs. Civ. P. 4(m) and 12(b)(5).

                Subject Matter Jurisdiction

       Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan

v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited

jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363

F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an

examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia, 339 F. 3d 970, 971 (D.C. Cir. 2003)

(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)).




                                                 4
Further, a court is required to dismiss an action “at any time” if it determines that the subject matter

jurisdiction is wanting. See Fed. R. Civ. P. 12(h)(3).

        When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents

outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735

n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (holding same); see also Artis

v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (“A court may consider material outside

of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject-

matter jurisdiction.).” By considering documents outside the pleadings when reviewing a motion

to dismiss pursuant to Rule 12(b)(1), the court does not convert the motion into one for summary

judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be converted into

a motion for summary judgment” when documents extraneous to the pleadings are considered by

a court. Haase, 835 F.2d at 905.

        Defendants state correctly that the United States and its agencies are entitled to sovereign

immunity, except to the extent that they expressly consent to suit. See Def.’s Mem. at 3–4; United

States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted). Additionally, a lawsuit against a

government official in his or her official capacity “generally represent[s] only another way of

pleading an action against an entity of which an officer is an agent,” such that “an official capacity

suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v.

Graham, 473 U.S. 159, 165-66 (1985) (internal citations omitted); see also Clark v. Library of

Congress, 750 F.2d 89, 103, 104, n.31 (D.C. Cir. 1984) (holding that express waiver is required,

regardless of whether such actions are brought against a government agency directly or against the

officials in their official capacity). A waiver of sovereign immunity “must be unequivocally

expressed in statutory text, and [it cannot] be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996)



                                                   5
(citations omitted). Plaintiff has not established that DHS or its officers have expressly consented

to damages suit.

       Therefore, to the extent that Plaintiff intends to raise any constitutional tort claims, see

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), his demand for money damages against DHS and its

officials (named in their official capacity) for any alleged constitutional violation(s) must fail. See,

e.g., Roman v. Nat'l Reconnaissance Office, 952 F. Supp. 2d 159, 163–64 (D.D.C. 2013).

However, Plaintiff seems to clarify, through his Opposition, that he is not alleging any

constitutional tort claims; he solely discusses allegations of gender/sex discrimination and

retaliation pursuant to Title VII. See Pl.’s Opp. at 2–3, 12–16. For this reason, Defendants’

sovereign immunity argument is now moot.

       The Court agrees with Defendants that Plaintiff has incorrectly sued DHS itself in bringing

his claims for discrimination. Def.’s Mem. at 4 n.4; Def.’s Rep. at 3. Title VII is the exclusive

remedy available to a federal employee seeking redress of employment discrimination, Brown v.

General Services Administration, 425 U.S. 820, 835 (1976); Kizas v. Webster, 707 F.2d 524, 542

(D.C. Cir. 1983), cert. denied, 464 U.S. 1042 (1984), and the head of the agency is the only proper

defendant in a Title VII action, 42 U.S.C. § 2000e–16(c) (1982); Davis v. Califano, 613 F.2d 957,

958 n.1 (D.C. Cir. 1980). Nonetheless, this appears to be an innocuous error and is easily cured

“simply by naming” the current Acting DHS Secretary as the only party defendant, Jarrell v. U.S.

Postal Service, 753 F.2d 1088, 1091 (D.C. Cir. 1985), and this particular type of amendment “shall

be freely given when justice so requires,” id. (remanding matter to trial court and allowing pro se

plaintiff to amend his complaint to substitute the Postmaster General for the Postal Service as party

defendant) (citing Fed. R. Civ. P. 15(a)). Therefore, the Court does not find dismissal for want of

subject matter jurisdiction appropriate at this time.



                                                   6
       Failure to State a Claim

       In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In

Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,

the tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Id. at 678. “Second, only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id. at 679.

       A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels

and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting

Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. Additionally, when a plaintiff is proceeding IFP,

the court is mandated to dismiss a complaint which fails to state a claim upon which relief can be

granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii); see also Baker v. Director, U.S. Parole Com’n, 916

F.2d 725, 727 (D.C. Cir. 1990) (holding that a sua sponte dismissal is appropriate for failure to

state a claim pursuant to Fed. R Civ. P. 12(b)(6)).

        In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated

by reference in the complaint and matters about which the Court may take judicial notice.”




                                                  7
Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997)).

        Defendants argue that Plaintiff’s Complaint is insufficient pursuant to Fed. R. Civ. P. 8(a).

Def.’s Mem. at 3. They further contend that the vagaries of the Complaint are compounded by the

fact that Plaintiff “raised numerous allegations at the administrative level, some of which were

accepted by the agency and some which were not[,]” id. at 1 n.2, but plaintiff fails to specify

“whether he intends to pursue all of the claims that were investigated and resolved against him

without a hearing at the administrative level[,]” id. at 1. Due to ambiguous nature of the

Complaint, Defendants attest that they are “left unable to identify the nature of his claims[,] . . .

whether Plaintiff has timely exhausted the administrative remedies that are a prerequisite to

bringing a federal action, and whether Plaintiff can present factual allegations that would support

a claim for relief.” Id. at 1–2.

        The Court agrees that Plaintiff’s Complaint falls short. Pro se litigants must comply with

the Federal Rules of Civil Procedure. Jarrell, 656 F. Supp. at 239. Rule 8(a) of the Federal Rules

of Civil Procedure requires complaints to contain “(1) a short and plain statement of the grounds

for the court’s jurisdiction [and] (2) a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see Iqbal, 556 U.S. at 678-79; Ciralsky v. CIA,

355 F.3d 661, 668-71 (D.C. Cir. 2004). The Rule 8 standard ensures that defendants receive fair

notice of the claim being asserted so that they can prepare a responsive answer and an adequate

defense and determine whether the doctrine of res judicata applies. Brown v. Califano, 75 F.R.D.

497, 498 (D.D.C. 1977).

        The Complaint, as pled, merely states that Plaintiff “is seeking to file a civil action . . . in

this Court[,]” but fails to identify any legal authority upon which he intends to rely. The complaint



                                                   8
affords some measure of factual information, however, that information is scattered with very little

context or detail, and ranges from indefinite references to Plaintiff’s Equal Employment

Opportunity Commission (“EEOC”) administrative pursuits, see Compl. ¶ 1, to alleged sexual

harassment he suffered, see id., to other unspecified alleged “inconsistencies and mistruths” on the

part of DHS and the EEOC, see id. at 2. He hints at allegations of employment discrimination, see

Compl. at 1–2, but he then fails to specify any intended cause of action. The Complaint is also

devoid of facts, identities, locations, or other information essential to maintaining claims before

the Court. It is also lacking the substance that would provide adequate notice to Defendants in

preparing to defend this case.

       Plaintiff, however, provides certain clarity by way of his Opposition. In contrast to the

Complaint, the Opposition presents a generous amount of facts and aptly specifies his intention to

bring claims for gender/sex discrimination and retaliation pursuant to Title VII. See Pl.’s Opp. at

2–9, 12–16, 18, 20–1, 25, 28, 30–2. He alleges that he suffered gender/sex discrimination and

harassment during the time he worked for FEMA. See id. at 2–5, 12–15, 17–21. As a result, he

filed complaints with the EEO, and then allegedly suffered retaliation due to this activity. See id.

at 3, 5, 15–16, 21–5, 31. He alleges that he was unfairly removed from his position and then

intentionally prevented from obtaining other employment. See id. at 2–3. He also alleges that the

was unfairly accused of theft after his termination. See id. at 3. These additional and vastly

improved allegations in the Opposition assist the Court and Defendants in discerning Plaintiff’s

intended claims.

       In order to survive a motion to dismiss, a plaintiff generally may not amend his complaint

nor assert new claims by way of a brief in opposition. Kingman Park Civic Assoc. v. Gray, 27 F.

Supp. 3d 142, 162 n.10 (D.D.C. 2014); Perkins v. Vance-Cooks, 886 F. Supp. 2d 22, 29 n.5 (D.D.C.



                                                 9
2012); Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.3 (D.D.C. 2010); College Sports

Council v. Gov’t Accountability Office, 421 F. Supp. 2d 59, 71 n.16 (D.D.C. 2006).

Notwithstanding, courts have, at times, accepted a pro se litigant’s motion to dismiss opposition

as a de facto amended complaint. See Richardson, 193 F.3d at 549.

       Here, however, while the Court finds Plaintiff’s Opposition illuminating regarding his

intended claims, it still finds that a formal amended complaint is required. Where Plaintiff’s

Complaint is wanting for information and detail, the Opposition is, by contrast, lengthy and

digressive, and Plaintiff must find a happy medium. For instance, the Opposition references a

“Claim 1” and “Claims 1-5[,]” Pl.’s Opp. at 25, 27, but those references to claims are unclear, and

the intended causes of action and facts are confusingly amalgamated. Also, at times Plaintiff

focuses heavily on summary judgment standards, arguments, and issues, see id. at 10–12, 29–32,

34–9, but no party has moved for summary judgment and thus, it is not before the Court. “A

confused and rambling narrative of charges and conclusions . . . does not comply with the

requirements of Rule 8.” Cheeks v. Fort Myer Constr. Corp., 71 F. Supp. 3d 163, 169 (D.D.C.

2014) (citation and internal quotation marks omitted).

       Pursuant to Federal Rules of Civil Procedure 15(a)(2), “[t]he court should freely give leave

when justice so requires.” Fed. R. Civ.P. 15(a)(2); see also Graves v. United States, 961 F. Supp.

314, 317 (D.D.C. 1997) (noting that the decision whether to allow leave to amend is within the

court's discretion); Davis v. Liberty Mut. Ins. Co., 871 F. 2d 1134, 1136-37 (D.C. Cir. 1989)

(stating that “[i]t is common ground that Rule 15 embodies a generally favorable policy toward

amendments.”). Absent “undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, futility of amendment, etc.,” a court



                                                10
should allow amendment of a complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425-26

(D.C. Cir. 1996) (internal quotation marks and citations omitted).

       Here, reviewing all of Plaintiff’s filings and holding them to a less stringent standard than

those drafted by a lawyer, see Richardson, 193 F.3d at 548, the Court finds that he should be

provided an opportunity to amend his Complaint. See Gonzalez v. Holder, 763 F. Supp. 2d 145,

149 n.1 (D.D.C. 2011) (proposing that plaintiff, proceeding pro se and IFP, who raised new claims

in his opposition to motion to dismiss, should consider filing an amended complaint) (citing Carter

v. Dep't of the Navy, No. 05–cv–0775 (RBW), 2006 WL 2471520 at *4 (D.D.C. Aug. 24, 2006)

(dismissing without prejudice new claims raised in plaintiff's opposition to defendant's motion to

dismiss with leave to amend the complaint), aff'd, 258 Fed. Appx. 342 (D.C. Cir. 2007) (per

curiam).

       For these reasons, Plaintiff shall file an amended complaint “to assert with greater clarity”

his Title VII discrimination and retaliation claims, which materialized more fully during motions

briefing. Carter, 2006 WL 2471520 at *6 (limiting the claims in the impending amended to

complaint to those newly raised in opposition to motion to dismiss) (citing Wyatt v. Syrian Arab

Republic, 362 F. Supp. 2d 103, 117 (D.D.C. 2005) (allowing plaintiffs to specifically and limitedly

amend their complaint based on allegations in their opposition, but not allowing any other

modifications of the complaint).

                                     IV.    CONCLUSION

       For all of these reasons, the Court denies Defendants’ Motion to Dismiss WITHOUT

PREJUDICE and shall allow Plaintiff to file, by April 6, 2020, an amended complaint in

compliance with the Federal Rules of Civil Procedure and District of Columbia Local Civil Rules.

In this regard and where applicable, he must specify by number, the EEOC decisions related to his



                                                11
intended claims. He must also name the proper defendant, see 42 U.S.C. § 2000e–16(c), namely,

the current Acting DHS Secretary, and remove all improper defendants. A separate Order with

additional detail accompanies this Memorandum Opinion.




                                                  ________/s/__________________
                                                  COLLEEN KOLLAR-KOTELLY
Date: March 4, 2020                                  United States District Judge




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