United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, Jr., Magistrate Judge.
This matter is before the court on Defendants' motion to dismiss, pursuant to Rules 12(b)(1), (2) and (6) of the Federal Rules of Civil Procedure [DE-25], to which Plaintiff filed a response in opposition [DE-35]. All briefing is complete, and the motion is ripe for disposition. The parties have not consented to the jurisdiction of the magistrate judge; therefore, Defendants' motion to dismiss is considered here as a recommendation to the District Court. See 28 U.S.C. § 636(b)(1)(B); see also Local Civil Rule 72.3(c). For the reasons more fully set forth below, it is recommended that Defendants' motion to dismiss be granted.
I. PROCEDURAL BACKGROUND
Plaintiff initiated this action on November 6, 2012, with the filing of a motion to proceed in forma pauperis [DE-2], which was allowed by the court [DE-13], and Plaintiffs complaint was subsequently filed [DE-14]. Plaintiff alleges deprivations of her Fourteenth Amendment right to procedural due process and substantive due process and a state law claim for abuse of process. Compl. [DE-14] ¶¶ 72-116. Plaintiff seeks compensatory and punitive damages, including back pay, pre- and post-judgment interest, and costs. Id. at 15.
II. FACTUAL BACKGROUND
Plaintiff was employed as a Health Care Technician with Defendant Longleaf Neuro-Medical Treatment Center ("Longleaf') from April 1, 2008, until her termination effective January 14, 2010, for willfully violating a work rule on January 5, 2010. Id. ¶¶ 12-13. On January 8, 2010, Defendant Wendy Godwin ("Godwin"), a Unit Nurse Manager with Longleaf, sent a letter to Plaintiff by certified mail stating there would be a pre-disciplinary conference at 11:30 a.m. on January 12, 2010. Id. ¶ 30. Plaintiff did not receive the notice, which was signed for by another employee, and did not attend the hearing, which she only learned of after its conclusion. Id. ¶¶ 33, 36, 38.
On January 13, 2010, Plaintiff attended an informal meeting classified as a "pre-disciplinary conference" with Defendant William Benton ("Benton"), Center Director of Longleaf. Id. ¶¶ 39-40. Plaintiff was not aware that the meeting constituted her Step I appeal conference. Id. ¶ 41. Prior to January 13, 2010, the conference changed from a pre-disciplinary conference to a pre-dismissal conference without any testimony of Plaintiff, and at the conference Plaintiff was given a letter which stated that dismissal had been recommended. Id. ¶¶56-57. Plaintiff had not been informed of what evidence had been presented and by whom or why dismissal was recommended prior to a formal pre-disciplinary conference. Id. ¶58. Plaintiff was dismissed with cause the next day. Id. ¶ 42. The termination letter stated that Plaintiff was terminated for using an improper pad placement, but she later received a revised termination letter stating she used improper technique. Id. ¶¶ 61-62.
On February 3, 2010, Plaintiff again met with Benton, which constituted Plaintiffs Step II appeal conference. Id. ¶ 44. In a letter dated February 3, 2010, Benton stated that the information Plaintiff supplied him regarding inaccuracies in the record were noted. Id. ¶ 45. Benton denied Plaintiff an appeal, although Plaintiff had been told that if she was not satisfied with the final decision by the head of the department, she could appeal to the State Personnel Commission. Id. ¶¶ 28, 46. On February 8, 2010, Plaintiff filed a Step III Grievance, and on March 19, 2010, Plaintiff received a Step III Grievance Conference. Id. ¶¶ 47-48. Plaintiff testified at the March 19, 2010 conference that she did not receive the two certified letters sent to notify her of the pre-disciplinary conference. Id. ¶¶ 49-50. Plaintiff also testified that she called Godwin to inform her that Plaintiff had been in an automobile accident and the physician stated Plaintiff should not return to work until January 18, 2010, but that Godwin demanded Plaintiff meet her on January 10, 2010. Id. ¶¶52-53. Plaintiff indicated she did not have an opportunity to prepare for the conference and was not given an opportunity to request a change of date for the conference in order to gather evidence which might exonerate Plaintiff. Id. ¶¶ 54-55. At the conclusion of the internal hearing on March 19, 2010, the Hearing Officer recommended that management uphold Plaintiffs suspension for causes relating to personal conduct detrimental to State service, pending the giving of written reasons. Id. ¶ 65.
On April 27, 2010, the hearing officer filed for a Final Agency Decision upholding Plaintiffs dismissal from employment. Id. ¶ 66. On June 29, 2010, an Administrative Law Judge dismissed Plaintiffs contested case petition, which constituted a final decision from the Office of Administrative Hearings. Id. ¶¶ 67-68. The dismissal by the Administrative Law Judge did not take into account irregularities in the enforcement of policies and procedures for Plaintiff and was based solely on the fact that Plaintiff was not a career employee. Id. ¶¶ 69-70.
III. STANDARD OF REVIEW
A. Rule 12(b)(1)
Pursuant to Rule 12(b)(1), a court must dismiss all or part of an action over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Whether subject matter jurisdiction exists is a threshold question that must be addressed by the court before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). The plaintiff, as the party opposing a Rule 12(b)(1) motion to dismiss, has the burden of proving that subject matter jurisdiction does, in fact, exist. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
B. Rule 12(b)(2)
Pursuant to Rule 12(b)(2), a court must dismiss a party over which it lacks personal jurisdiction, and the party asserting personal jurisdiction has the burden of proving jurisdiction by a preponderance of the evidence. Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005). Where, as here, a court addresses the question of jurisdiction based only on the allegations in the complaint and the motions and supporting memoranda, without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of jurisdiction. /d. In determining whether the plaintiff has proven a prima facie ...