United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
an ADA case. Plaintiff was a “part time security guard
and spark watcher” at a sawmill owned by Defendant Hood
Industries. Amended Complaint at 2, Braswell v. Vinson
Guard Service, No. 2:17-CV-201-KS-MTP (S.D.Miss. Feb.
20, 2018), ECF No. 8. He specifically alleged that Defendant
Vinson Guard Service was his employer. Id. Plaintiff
contends that Defendants failed to reasonably accommodate his
disabilities of “bad back, ” “diabetic foot
pain, ” “heart condition, ” and “MRSA
staph.” Id. Specifically, he contends that
they would not allow him to sit on a folding metal chair
while he “spark watched” for the sawmill's
welders. Id. Hood Industries filed a Motion to
Dismiss . For the reasons provided below, the motion is
Standard of Review
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Great Lakes Dredge & Dock Co. LLC v. La.
State, 624 F.3d 201, 210 (5th Cir. 2010) (punctuation
omitted). “To be plausible, the complaint's factual
allegations must be enough to raise a right to relief above
the speculative level.” Id. (punctuation
omitted). The Court must “accept all well-pleaded facts
as true and construe the complaint in the light most
favorable to the plaintiff.” Id. But the Court
will not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.”
Id. Likewise, “a formulaic recitation of the
elements of a cause of action will not do.” PSKS,
Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d
412, 417 (5th Cir. 2010) (punctuation omitted). “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct.
1937, 1950, 173 L.Ed.2d 868 (2009).
argues that it can not be liable under the ADA because it was
not Plaintiff's employer. Indeed, in his Amended
Complaint, Plaintiff specifically alleged that Vinson Guard
Service was his employer.
prohibits “covered entit[ies]” from
“discriminat[ing] against a qualified individual on the
basis of disability . . . .” 28 U.S.C. § 12112(a).
In this context, discrimination includes “not making
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
disability who is an . . . employee . . . .” 28 U.S.C.
§ 12112(b)(5)(A). A “covered entity” is
“an employer, employment agency, labor organization, or
joint labor-management committee.” 28 U.S.C. §
12111(2). “The term ‘employer' means a person
engaged in an industry affecting commerce who has 15 or more
employees . . . and any agent of such person . . . .”
28 U.S.C. § 12111(5)(A). An “employee” is
“an individual employed by an employer . . . .”
28 U.S.C. § 12111(4). Therefore, under the statute's
plain terms, a plaintiff can only sue a defendant under Title
I of the ADA if the plaintiff is an employee of the
defendant. Flynn v. Distinctive Home Care, Inc., 812
F.3d 422, 427 (5th Cir. 2016).
response to Hood's motion, Plaintiff contends that Hood
and Vinson were “joint employers.” Response at 1,
Braswell v. Vinson Guard Service, No.
2:17-CV-201-KS-MTP (S.D.Miss. Apr. 26, 2018), ECF No. 24.
Plaintiff argues that Vinson only acted “in the
capacity of a staffing service, ” and that Hood trained
and supervised the spark watchers. Id. However, none
of these allegations were in the Amended Complaint. In fact,
Plaintiff specifically alleged that Vinson Guard Service was
his employer. Amended Complaint , at 2.
considering a Rule 12(b)(6) motion, the Court
“generally must limit itself to the contents of the
pleadings . . . .” Brand Coupon Network, LLC v.
Catalina Marketing Corp., 748 F.3d 631, 635 (5th Cir.
2014). “[N]ew factual allegations presented in a
plaintiff's opposition to a motion to dismiss . . . are
insufficient to cure deficient allegations in a
complaint.” Tanner v. Pfizer, Inc., No.
1:15-CV-75-HSO-JCG, 2015 WL 6133207, at *4 (S.D.Miss. Oct.
19, 2015). And while the Court should “freely give
leave [to amend a complaint] when justice so requires,
” Fed.R.Civ.P. 15(a)(2), “a party must
‘expressly request' leave to amend.”
Estes v. JP Morgan Chase Bank, Nat'l Ass'n,
613 Fed.Appx. 277, 280 (5th Cir. 2015) (quoting United
States ex rel. Willard v. Humana Health Plan of Tex.
Inc., 336 F.3d 375, 387 (5th Cir. 2003)).
summary, Title I of the ADA only permits plaintiff-employees
to sue defendant-employers. Plaintiff specifically alleged in
his Amended Complaint that Vinson Guard Services was his
employer, rather than Hood Industries. Although Plaintiff now
contends that Hood was also his employer, he has not sought
leave to file a Second Amended Complaint and correct his
earlier allegations. Therefore, the Court must grant
Hood's motion and dismiss Plaintiff's ADA claim
these reasons, the Court grants the Motion
to Dismiss  filed by Defendant Hood Industries.
Plaintiff's claims against Defendant Hood Industries are
dismissed without ...