United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Plaintiff Hesman Tall (“Mr. Tall” or “Plaintiff”) brings this pro se action against Defendants The Partnership Development Group, Inc. (“PDG”), PDG Rehabilitative Services,  RISE Program, and the Maryland State Department of Education, Division of Rehabilitation Services (“DORS”) (collectively, “Defendants”), alleging various violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and 28 C.F.R. § 35.130, negligence under Maryland law, and “discrimination in an self-employment based job program.” Plaintiff contends that Defendants acted in a negligent and discriminatory fashion by rejecting his application to participate in the RISE program.
Presently pending are Plaintiff’s Motion for Change of Venue (ECF No. 6); Defendant Maryland State Department of Education, Division of Rehabilitation Services’s Motion to Dismiss (ECF No. 8); and Defendant The Partnership Development Group, Inc.’s Motion to Dismiss (ECF No. 10). The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Plaintiff’s Motion for Change of Venue (ECF No. 6) is DENIED as MOOT; Defendant Maryland State Department of Education, Division of Rehabilitation Services’s Motion to Dismiss (ECF No. 8) is GRANTED WITH PREJUDICE; and Defendant The Partnership Development Group, Inc.’s Motion to Dismiss (ECF No. 10) is GRANTED WITH PREJUDICE. In sum, Plaintiff’s claims against DORS are barred by the sovereign immunity given to the states by the Eleventh Amendment, U.S. Const. amend XI. Moreover, this case is nearly identical to an earlier state action dismissed by the Circuit Court for Howard County, Maryland on October 15, 2015. This case is thus also barred by res judicata and DISMISSED WITH PREJUDICE as to all Defendants.
In a ruling on a motion to dismiss, this Court must accept the factual allegations in the plaintiff’s complaint as true and construe those facts in the light most favorable to the plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a pro se litigant’s complaint should not be dismissed unless it appears beyond doubt that the litigant can prove no set of facts in support of his claim that would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Yet, a plaintiff’s status as pro se does not absolve him of the duty to plead adequately. See Stone v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (citing Anderson v. Univ. of Md. Sch. Of Law, 130 F.R.D. 616, 617 (D. Md. 1989), aff’d, 900 F.2d 249, 1990 WL 41120 (4th Cir. 1990)).
This action arises from the Plaintiff’s application for an entrepreneurial grant through the Maryland State Department of Education, Division of Rehabilitation Services (“DORS”.) Plaintiff Hesman Tall is a disabled African-American man who allegedly receives certain Social Security Administration benefits. Compl. ¶¶ 1, 5, ECF No. 1. He is the owner of Anna Banana Beverages (“Anna Banana”). Id. ¶ 6.
In 2011, Mr. Tall applied for a grant under DORS’s Reach Independence through Self-Employment (“RISE”) program, which allegedly seeks to help “disabled applicants . . . create a business plan, create financial data and conduct real-life market research to prove that their business can generate enough revenue for applicants to become self-employed in a self-sustaining business . . . [.]” Id. ¶¶ 2-3. DORS employs Defendant PDG to provide applicants with technical support and “analyze [applicants’] business plans, projections and financial Proformas . . . and then recommend to fund or not to fund applicants.” Id. ¶¶ 2, 4. To accompany his application, Mr. Tall alleges that he submitted a business plan, financial proforma statements and projections, and conducted market research, market validation, and proof of concept at the “Howard Community College Market festival.” Id. ¶¶ 8, 11, 20, 21, 27-29, 33. His market research allegedly demonstrated that Anna Banana would generate annual revenues of $157, 700 with twelve beverages sold per hour. Id. ¶¶ 9, 20.
After submitting his application, Mr. Tall requested a hearing to present his company. Id. ¶ 12. He claims that his request was ignored for six months, but was finally granted on December 2, 2014. Id. ¶¶12, 13, 15. At the hearing, DORS and PDG allegedly “ignored” Plaintiff’s market research, business plan, cash flow projections, and other data. Id. ¶ 15. On December 30, 2014, Defendants rejected his application, stating that Mr. Tall did not have a viable location or operations plan. Id. ¶¶ 15, 24, 31. He claims that this decision “completely ignored the evidence” of the alleged viability of his company. Id. ¶ 17. Moreover, he alleges that PDG documents reveal that it “has consistently funded Caucasian-owned businesses at more than twice the rate of qualified African American owned businesses.” Id. ¶ 5.
Pursuant to Md. Code Regs. 13A.11.07, Mr. Tall filed a request for review by a Maryland administrative law judge of DORS’s rejection of his application on January 5, 2015. Def. DORS’s Mot. to Dismiss Ex. 2, 1, ECF No. 8-5 (Copy of Administrative Review Final Default Order). He asserted allegations identical to those alleged in the present action. Def. DORS’s Mot. to Dismiss Ex. 1, ECF No. 8-4 (Copy of Administrative Review Complaint). Mr. Tall failed to participate in a prehearing telephone conference with the Honorable William Somerville, an administrative law judge of the Maryland Office of Administrative Hearings, on February 18, 2015. Def. DORS’s Mot. to Dismiss Ex. 2, at 1-2. Although Judge Somerville made numerous attempts to contact him, he never received a response from Mr. Tall. Id. As such, Judge Somerville issued a Final Default Order dismissing Plaintiff’s complaint on February 24, 2015. Id. at 2.
On March 27, 2015, Plaintiff filed suit in the Circuit Court for Howard County, Maryland against the present Defendants, DORS and PDG. Def. DORS’s Mot. to Dismiss Ex. 3, ECF No. 8-6 (Copy of State Court Complaint). He asserted various violations of the Americans with Disabilities Act, negligence under Maryland law, race discrimination, and discrimination under Md. Code Ann., State Fin. & Proc. § 19-101. Id. The factual allegations of the state court complaint are nearly identical to those asserted in the present action. See generally Id. The Circuit Court for Howard County dismissed Mr. Tall’s complaint on August 19, 2015, but with leave to file an amended complaint. Def. DORS’s Mot. to Dismiss Ex. 4, ECF No. 8-7 (Copy of August 19, 2015 Order). Plaintiff filed an amended complaint adding certain alleged violations of Maryland law. See Def. DORS’s Mot. to Dismiss Ex. 5, ECF No. 8-8 (Copy of State Court Amended Complaint). After DORS and PDG each moved to dismiss, the Circuit Court for Howard County granted their motions and dismiss Plaintiff’s claims on October 15, 2015. Def. DORS’s Mot. to Dismiss Ex. 6, ECF No. 8-9 (Copy of October 15, 2015 Order). The following day, Mr. Tall noted an appeal to the Maryland Court of Special Appeals. Def. DORS’s Mot. to Dismiss Ex. 7, ECF No. 8-10 (Copy of Notice of Appeal). His appeal remains pending. See Tall v. Partnership Development Group, et al., No. 01787 (Sept. Term 2015).
Nevertheless, less than a month later, Mr. Tall filed the present action in this Court. He appears to assert four claims: Negligence (Count I); “Discrimination in an Self-Employment Based Job Program” (Count II); Discrimination under Titles I and V of the ADA (Count III); and “Negligence in Violation of 42 U.S.C. § 12112” (Count IV). Defendants have each moved for dismissal of the subject Complaint in its entirety.
STANDARDS OF REVIEW
I. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With respect to a facial challenge, a court will grant a ...