Jenkins v. Bos. Hous. Court of Mass.

350 F.Supp.3d 1

Hector JENKINS, Plaintiff,

v.BOSTON HOUSING COURT of the Commonwealth of Massachusetts, the Massachusetts Trial Court, Defendant.

CIVIL ACTION NO. 16-11548-PBS

United States District Court, D. Massachusetts.

Signed November 15, 2018

Hector M. Jenkins, Everett, MA, pro se.

Howard R. Meshnick, Attorney General's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDMENT TO THE SECOND AMENDED COMPLAINT TO ADD A COUNT FOR DISABILITY DISCRIMINATION (# 86).

M. Page Kelley, United States Magistrate Judge

I. Introduction.

The facts of this case have been extensively detailed in prior Reports and Recommendations (see, e.g., ## 43, 60) and a Memorandum and Order (# 66). General familiarity by the reader is presumed, although specific facts necessary to resolve the motion at hand will be recited.

The initial complaint (# 1) in this case was filed on July 27, 2016; the first amended complaint was filed over two months later on October 11, 2016. (# 24.) In March 2017, this court issued a Report and Recommendation (R & R) (# 43) recommending that the motion to dismiss the amended complaint filed by Boston Housing Court of the Commonwealth of Massachusetts, the Massachusetts Trial Court (BHC) be allowed in its entirety. Chief Judge Saris endorsed that R & R as follows: "After a review of the objections, I adopt the report and recommendation and dismiss the claims with prejudice except the Title VII claim in count II which will be dismissed unless plaintiff, who is pro se, amends it to meet the deficiencies outlined by the magistrate judge within 30 days." (# 50.) On June 13, 2017, plaintiff Hector M. Jenkins filed a second amended complaint (# 54); BHC moved to strike plaintiff's pleading, and sought dismissal of the remaining Title VII claim (# 57). On November 3, 2017, this court issued another R & R (# 60) recommending that the Title VII failure to promote claim be dismissed as time-barred, and that any remaining claims beyond the failure to promote claim be stricken as outside the scope of amendment allowed by Chief Judge Saris. Plaintiff filed an objection to the recommendation. (# 62.) On March 12, 2018, Chief Judge Saris issued a Memorandum and Order on the R & R. (# 66.)

In the March 12th Memorandum, Chief Judge Saris adopted the recommendation that the failure to promote claim be dismissed. Id. at 9. She further determined that plaintiff's hostile work environment claim should be dismissed "because there is no indication that it was exhausted at the administrative level." Id. Having reviewed the allegations of the second amended complaint, however, Chief Judge Saris concluded that the interests of justice favored permitting Jenkins to prosecute his retaliatory termination claim. Id. at 11-12.

BHC filed a motion for reconsideration of the decision that the retaliatory termination claim was viable. (# 69.) That motion was ultimately denied on July 9, 2018. (## 73, 77, 78.) On July 27, 2018, BHC filed its answer to plaintiff's second amended complaint. (# 79.) Approximately a month and a half later, on October 11, 2018, plaintiff filed a motion to amend the second amended complaint (# 86) seeking to add claims under the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. BHC opposes the motion to amend. (# 89.)

II. Applicable Standard.

Federal Rule of Civil Procedure 15 provides that "[t]he court should freely give leave [to amend] when justice so requires." However, "a district court may deny leave to amend when the request is characterized by undue delay, bad faith, futility, [or] the absence of due diligence on the movant's part." Mulder v. Kohl's Dep't Stores, Inc. , 865 F.3d 17, 20 (1st Cir. 2017) (quoting Nikitine v. Wilmington Tr. Co. , 715 F.3d 388, 390 (1st Cir. 2013) (internal quotations and further citation omitted) ); Turner v. Hubbard Sys., Inc. , No. CIV. A. 12-11407-GAO, 2015 WL 3743833, at *2 (D. Mass. June 15, 2015) ("It is well established [...] that leave may be denied if it would reward undue delay or a lack of due diligence.") (citing Steir v. Girl Scouts of the USA , 383 F.3d 7, 12 (1st Cir. 2004) ).

Even if a proposed amendment does not reflect undue delay or lack of diligence, "[f]utility of the amendment constitutes an adequate reason for a district court to deny [ ] a motion [to amend] [....] In assessing futility, the district court must apply the standard which applies to motions to dismiss under Fed. R. Civ. P. 12(b)(6)." Morgan v. Town of Lexington, MA , 823 F.3d 737, 742 (1st Cir. 2016) (internal quotations, internal citations and citations omitted). Under Rule 12(b)(6), it is incumbent upon the plaintiff to provide "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

III. Discussion.

A. Plaintiff's Motion Reflects Undue Delay and Lack of Diligence.

The threshold question is whether, considering the totality of circumstances, plaintiff's proposed third amended complaint has been timely filed. Nikitine , 715 F.3d at 390. "Plaintiffs must exercise due diligence in amending their complaints. As a corollary of that principle, busy trial courts, in the responsible exercise of their case management functions, may refuse to allow plaintiffs an endless number of trips to the well." Aponte-Torres v. Univ. of Puerto Rico , 445 F.3d 50, 58 (1st Cir. 2006). The First Circuit has reiterated that "when a considerable period of time has passed between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some valid reason for his neglect and delay." Nikitine , 715 F.3d at 390–91 (internal quotations and citation omitted) (upholding denial of leave to file a first amended complaint where plaintiff waited nine months). Moreover, a plaintiff is not entitled to "scramble[e] to devise ‘new theories of liability [ ] based on the same facts pled in his original complaint [... and] theories that could and should have been put forward in a more timeous fashion." Id. at 391 (internal quotations, internal citations and citations omitted); Mulder , 865 F.3d at 21.

In his proposed amendment, plaintiff alleges that he filed a complaint with the Equal Employment Opportunity Commission (EEOC) on or about December 30, 2016, raising ADA and Rehabilitation Act claims (# 86-1 ¶ 81), and that the EEOC issued a right to sue letter on January 25, 2017. (# 86-1 ¶ 82.) Jenkins filed that right to sue letter in this case on January 30, 2017. (## 39, 40.) Despite having had possession of the right to sue letter for five months, plaintiff did not seek to add an ADA or Rehabilitation Act claim in the second amended complaint which he filed on June 13, 2017. Instead, he waited until October 2018, twenty-one months after receipt of the right to sue letter, to attempt to bring these claims. (# 86.)

Although Jenkins asserts that he could not bring the claims earlier because he had been busy fending off various motions filed by defendants, this argument simply does not carry the day. " ‘This is not a case of new allegations coming to light following discovery, or of previously unearthed evidence surfacing.’ " Mulder , 865 F.3d at 21 (quoting Villanueva v. United States , 662 F.3d 124, 127 (1st Cir. 2011) ). Plaintiff had the right to sue letter when he filed the second amended complaint, yet did not assert an ADA or Rehabilitation Act claim. It was well over a year after the second amended complaint was filed that Jenkins requested leave to add these claims. Plaintiff knew he had exhausted his administrative remedies and, despite having had adequate opportunity to add his ADA and Rehabilitation Act claims, chose to do nothing for an extended period of time. It is simply too late to add the claims now.

B. Plaintiff's Proposed Amendments Would Be Futile.

Even if plaintiff had acted diligently, leave to amend would not be granted where such amendment would be futile under the Rule 12(b)(6) pleading standard. See Morgan , 823 F.3d at 742. Under Rule 12(b)(6), "a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). However, the court is " ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Jenkins, who has been diagnosed with bipolar disorder, contends that his "termination was based on the perception (accurate or inaccurate) that he was ‘crazy’ and could not perform his job duties" (# 86-1 ¶ 76) or, alternatively, that defendants failed to provide him with reasonable accommodations that would have allowed him to perform his job (# 86-1 ¶ 80). These claims fall under Title I of the ADA, 42 U.S.C. § 12111 et seq. , which prohibits discrimination in employment "against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a).

Defendant BHC¹ is part of the judicial branch of the Commonwealth. See https://www.mass.gov/state-a-to-z (last visited 11/01/2018). The law is clear:

The Supreme Court has consistently held that an unconsenting State is immune [under the Eleventh Amendment] from suits brought in federal courts by her own citizens as well as by citizens of another State. When enacting legislation, however, Congress has the authority to abrogate the States' Eleventh Amendment immunity when it unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority. Unless Congress has properly abrogated the Eleventh Amendment State immunity or the State has consented to being sued, a suit against State officials in their official capacity would be similarly barred.

Burnham v. Massachusetts , 299 F.Supp.3d 319, 322 (D....