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Olekanma v. Wolfe

United States District Court, D. Maryland

March 1, 2017

SAMUEL OLEKANMA
v.
JOHN S. WOLFE, Warden, Jessup Correctional Facility, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, United States District Judge

         Presently pending and ready for resolution in this workplace harassment action are: (1) a motion to dismiss filed by Defendants John S. Wolfe, Casey Campbell, Allen Gang, Glynis Watford, Genice Fowler, Agboha Augustine, Fekoya Foluso, Kevin Hight, Oduazu Ike, Joseph Swen, Imoemiye Olufemi, Shalawanda Suggs, Edward Burl, Uzoma Godspower, Tamisha Forbes, Charles Frank, Paul Ogordi, Emilike Sunday, Judith Hendric Jones, Ajose Ganiyat, Oloku Olatunbosun, Omolaja Francis, Ugo Ignes, Onanuga Endurance, M. Fields, Robinson Abner, Falope Mofoluwaso, and Okunade Adeniyi (together, the “State Defendants”) (ECF No. 52); (2) a motion to dismiss filed by Defendant Wexford Health Sources Incorporated (“Wexford”) (ECF No. 31); a motion to strike the surreply of Plaintiff Samuel Olekanma (“Plaintiff”), filed by Wexford (ECF No. 51); a motion to disqualify opposing counsel filed by Plaintiff (ECF No. 55); Plaintiff's application for injunctive relief (ECF No. 56); and Plaintiff's motion for default judgment (ECF No. 59). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the State Defendants' motion to dismiss will be denied as to Defendant Wolfe and granted as to all other State Defendants, Wexford's motion to dismiss will be granted, Wexford's motion to strike Plaintiff's surreply will be granted, and Plaintiff's motions will be denied.

         I. Background[1]

         At all relevant times, Plaintiff has been employed by the Maryland Department of Public Safety and Correctional Services (“MDPSCS”) as a corrections officer at the Jessup Correctional Institution (“JCI”). (ECF No. 30, at 6, 10). Plaintiff alleges that Electa Awanga, a female nurse employed by Wexford at JCI, repeatedly sexually harassed him beginning in November 2014. (ECF No. 4, at 2, 6).[2] According to Plaintiff, “[t]his sexual [h]arassment was brought to the attention of the supervisors and appointed authorities . . . but they failed to remove [P]laintiff from the abusive condition on time which resulted in further sexual harassment and abuse.” (Id. ¶ 1). Plaintiff alleges that he reported the harassment to his supervisors, Defendants Wolfe, Campbell, and Gang, but they “were [] absent or on vacation at the time of the complaint which is a violation of policy and procedure that resulted in . . . continued sexual harassment.” (Id. ¶ 2). Furthermore, he maintains that “[w]hen [he] took the matter to . . . [Maryland Equal Employment Opportunity Coordinator Glynis Watford, she] further harassed [P]laintiff by intimidating [him].” (Id. ¶ 4). After he complained about the sexual harassment, Plaintiff allegedly was moved away from his work area, and other JCI employees filed complaints against him. (Id. at 11-12). Plaintiff also asserts that Defendant Wexford employs Ms. Awanga and “failed to act or do anything about [his] complaint” of harassment. (Id. ¶ 5).

         Plaintiff, proceeding pro se, filed a complaint in this court against MDPSCS on April 6, 2015. (ECF No. 1). Shortly thereafter, the court found the complaint to be insufficient under federal pleading standards and granted him twenty-eight days to file an amended complaint. (ECF No. 3). On May 6, Plaintiff filed an amended complaint against Defendant Wexford and Defendants Wolfe, Campbell, Gang, and Watford, in their official capacities. (ECF No. 4).[3] Plaintiff's first amended complaint asserted claims under: 18 U.S.C. § 1346 (definition of a criminal “scheme or artifice to defraud”) (Count I); 18 U.S.C. § 242 (criminal deprivation of rights under color of law) (Count II); 31 C.F.R. § 0.208 (employee rules of conduct for the United States Department of the Treasury) (Count III);[4] 18 U.S.C. § 241 (criminal deprivation of rights by conspiracy) (Count IV); and 18 U.S.C. § 3 (criminal accessory after the fact) (Count V). Defendant Wexford and Defendants Wolfe, Campbell, Gang, and Watford filed motions to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (ECF Nos. 10; 21). The court granted those motions to dismiss because, as a private citizen, Plaintiff lacked standing to bring suit under the criminal statutes and Treasury regulations that he cited in the various counts of the complaint. (ECF No. 25, at 7-8). Although Plaintiff did not purport to bring his case under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the court liberally construed his pro se complaint to assert claims of sexual harassment and retaliation. (Id. at 8). The court dismissed those claims, however, because Plaintiff had not alleged that he had exhausted his administrative remedies and because he had sued individual employees and supervisors rather than his employer, as defined by Title VII. (Id. at 8-11).[5]

         After being granted leave to amend, Plaintiff filed a second amended complaint on March 22, 2016. (ECF No. 30). The second amended complaint incorporates all allegations contained in his prior pleadings, names twenty-eight additional individual defendants (together with Wexford, Wolfe, Campbell, Gang, and Watford, “Defendants”), and asserts claims under Title VII; the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A; the whistleblower protections under the Dodd-Frank Act (“Dodd-Frank”), 15 U.S.C. § 78u-6(h)(1)(A); and 18 U.S.C. § 242.[6] (Id. at 6-7, 10-12). Plaintiff also sought appointment of counsel, which the court denied because Plaintiff had not sought to proceed in forma pauperis when filing his complaint. (ECF No. 35, at 4-5).

         Wexford filed its pending motion to dismiss on March 28, 2016. (ECF No. 31). The State Defendants' pending motion to dismiss was filed on July 26, 2016. (ECF No. 52).[7] Plaintiff has responded to both motions. (ECF Nos. 36; 57). Wexford replied on April 25 (ECF No. 38), and Plaintiff filed a surreply on July 18 (ECF No. 50). Wexford then moved to strike Plaintiff's surreply. (ECF No. 51). Plaintiff responded to that motion (ECF No. 54), and Wexford replied (ECF No. 58). Plaintiff filed his pending motions to disqualify opposing counsel Lisa Arnquist (ECF No. 55), for injunctive relief (ECF No. 56), and for default judgment against all Defendants except Wexford (ECF No. 59) in August 2016. Wexford and the State Defendants filed separate responses to Plaintiff's motion for default judgment (ECF Nos. 60; 61), and Plaintiff replied to each of those filings (ECF Nos. 64; 65).

         II. Motions to Dismiss

         A. Standard of Review

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing, ' rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         At this stage, all well-pleaded allegations in the complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir. 2011). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not ‘show[n] that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         Generally, pro se pleadings are liberally construed and held to a less stringent standard than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal construction means that the court will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts available; it does not mean that the court should rewrite the complaint to include claims never presented. Barnett v. Hargett, 174 F.3d 1128, 1132 (10th Cir. 1999). That is, even when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (citation and internal quotation marks omitted) (“[E]ven a pro se complaint must be dismissed if it does not allege a plausible claim for relief.”).

         B. Analysis

         1. Non-Title VII Claims

         In the second amended complaint, Plaintiff alleges violations of SOX and Dodd-Frank for the first time. (Id. at 6- 7, 10-12). SOX protects whistleblowers of publicly traded companies by prohibiting employers from retaliating against employees who have provided information about potentially illegal conduct. 18 U.S.C. § 1514A(a); Welch v. Chao, 536 F.3d 269, 275 (4th Cir. 2008). Dodd-Frank “encourages individuals to provide information relating to a violation of securities laws to the Securities and Exchange Commission” (“SEC”) by protecting whistleblowers from retaliatory actions by their employers. Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 622-23 (5th Cir. 2013); see 15 U.S.C. § 78u-6. Here, there is no assertion that Plaintiff's employer - a state agency - is a publicly traded company. Nor is there any allegation that he reported information to the SEC. Accordingly, these claims will be dismissed.

         Plaintiff's second amended complaint also makes references to extortion, prostitution, and fraud. Plaintiff has not alleged any facts indicating that any of the Defendants defrauded him. Although Plaintiff labels one of his causes of action “Fraud, ” it simply quotes the text of 18 U.S.C. § 242. As previously held (ECF No. 25, at 7-8), Plaintiff does not have standing to bring a private civil action under 18 U.S.C. § 242, a criminal statute, see Fromal v. Lake Monticelle Owners' Ass'n, Inc., No. 3:05-CV-00067, 2006 WL 167894, at *1-2 (W.D.Va. Jan. 23, 2006) (determining that 18 U.S.C. §§ 241 and 242 and 18 U.S.C. § 1341 are criminal statutes that do not provide a private right of action), aff'd, 223 F.App'x 203 (4th Cir. 2007). Plaintiff also does not have a private cause of action for the alleged prostitution or extortion.[8] It appears that Plaintiff intends to allege prostitution and extortion as part of a racketeering scheme. Although he mentions racketeering only generally in his second amended complaint (see ECF No. 30, at 7, 8, 13), he argues in opposition to the motions to dismiss that Defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (see ECF Nos. 36, at 7-8; 57, at 2-3, 14-21).[9] Even construing his complaint liberally, Plaintiff has not alleged sufficient facts to plead a RICO claim. To state a claim for a substantive violation of RICO, the complaint must set forth facts which, if proven, would establish “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Morley v. Cohen, 888 F.2d 1006, 1009 (4th Cir. 1989) (quoting Sedima, ...


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