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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JEMAL A. CHEATHAM,

Plaintiff, 

v.

CHAD WOLF, et al., 

Defendants. 

Civil Action No. 18-03026 (CKK)

MEMORANDUM OPINION

Plaintiff, appearing pro se and in forma pauperis (“IFP”), is a resident of Ruther Glenn, 

Virginia. He sues the Department of Homeland Security (“DHS”) and the Acting Secretary of 

DHS.

1 See Complaint (“Compl.”), ECF No. 1 at caption. The Complaint is far from a model in 

clarity, but it appears that Plaintiff is suing DHS, more specifically, DHS subsidiary agency, 

Federal Emergency Management Agency (“FEMA”), for alleged violations of Title VII of the 

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16. See Compl. at 1–2; Pl.’s Opp. at 2–

3, 12–16. Before the Court is Defendants’ Motion to Dismiss, ECF No. 11, and Memorandum in 

Support (“Def’s Mem.”), ECF No. 11-1. The Court shall deny Defendants’ Motion to Dismiss 

WITHOUT PREJUDICE and shall allow Plaintiff leave to amend the Complaint. 

I. BACKGROUND

Plaintiff filed this matter on December 3, 2018. Summonses were issued on February 6, 

2019, and the United States Attorney for the District of Columbia was served, see Fed. R. Civ. P. 

 1 Plaintiff first sued then-Acting DHS Secretary, Kirstjen M. Nielsen, see Compl. at caption, and then later substituted 

then-Acting DHS Secretary, Kevin K. McAleenan, see Opposition to Motion to Dismiss (“Pl.’s Opp.”), ECF No. 13, 

at caption, 1 n.1. The current Acting Secretary of the DHS is Chad Wolf, and he is automatically substituted as 

Defendant in his official capacity for his predecessor pursuant to Fed. R. Civ. P. 25(d).
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12(a)(2), on March 20, 2019. See Return of Service Affidavit, ECF No. 6. Plaintiff moved for 

default, see Affidavit for Default, ECF No. 7, and the Clerk of Court entered default against 

Defendants on April 18, 2019. See Clerk’s Entry of Default, ECF No. 8. However the entry of 

default was vacated on May 7, 2019, because the deadline to file an answer had not yet elapsed, 

see May 5, 2019 Min. Ord. Additionally, DHS had not yet been served. See Fed. R. Civ. P. 4(i)(1), 

(2). 

In the interim, on May 20, 2019, Defendants filed the pending Motion to Dismiss. Plaintiff 

filed an Opposition on May 28, 2019, to which Defendants filed a Reply (“Def.’s Rep.”), ECF No. 

14, on June 10, 2019. On July 19, 2019, the Acting DHS Director was served with process. See 

Return of Service Affidavit, ECF No. 15. The Clerk of the Court reissued summonses, see ECF 

No. 16, for the Department of Homeland Security on August 13, 2019. DHS was then served on 

September 20, 2019. See Return of Service Affidavit, ECF No. 17. 

II. LEGAL STANDARDS & DISCUSSION 

Defendants move to dismiss pursuant to Federal Rules 4(m), 12(b)(1), and 12(b)(6). See 

Def.’s Mem. at 2–4. In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a 

court must “treat a complaint's factual allegations as true . . . and must grant a plaintiff ‘the benefit 

of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States, 

617 F.2d 605, 608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 

(D.C. Cir. 2011). Where a plaintiff is proceeding pro se, the Court must consider all of plaintiff's 

filings in toto when assessing a motion to dismiss. See Richardson v. United States, 193 F.3d 545, 

548 (D.C. Cir. 1999). 
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Service of Process 

First, Defendants move to dismiss based on Plaintiff’s purported failure to comply with 

Fed. R. Civ. P. 4(m). Def.’s Mem. at 2. A party may move under Federal Rule of Civil Procedure 

12(b)(5) to dismiss a complaint for insufficiency of service of process. “Upon such a motion, the 

plaintiff carries the burden of establishing that [she] has properly effected service” as is required 

under Rule 4. See Koerner v. United States, 246 F.R.D. 45, 46 (D.D.C. 2007) (internal quotations 

and citation omitted). “[U]nless the procedural requirements for effective service of process are 

satisfied, a court lacks authority to exercise personal jurisdiction over the defendant.” Candido v. 

Dist. of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007). Rule 4(m) requires that service of 

summons and the complaint be made upon the defendant “within 90 days after the complaint is 

filed[.]” Fed. R. Civ. P. 4(m). However, courts “must extend the time for an appropriate period” 

if the plaintiff shows good cause for failure to effect timely service. See id.” 

Defendants argue that Plaintiff failed to serve DHS within 90 days in accordance with 

Federal Rule of Civil Procedure and that he has failed to proffer any reason constituting good cause 

for the delay. Def.’s Mem. at 2; Def.’s Rep. at 1–3. Plaintiff states that he was unsure of how to 

perfect service on the agency. Pl.’s Opp. at 1. 

The Court finds good cause for the delay. Because Plaintiff is proceeding IFP, the Court 

officers are responsible for effecting service of process based on information that he provides. See

28 U.S.C. § 1915(d). While Plaintiff still maintains the burden of establishing the validity of 

service and must demonstrate that the procedure satisfied the requirements of Rule 4, see Light v. 

Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987), the actual service of process is to be performed by the 

United States Marshals Service, see 28 U.S.C. § 1915(d). Generally, pro se plaintiffs who depend 

on Court officers for executing service should not be penalized for a Court officer's failure to effect 
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service of process. Ray v. Experian, Inc., No. 08–0114 (RCL), 2009 WL 1255114 at *1 (D.D.C. 

Apr. 28, 2009); see Mondy v. Sec'y of the Army, 845 F.2d 1051, 1060 (D.C. Cir. 1988) 

(MacKinnon, J. concurring) (finding that service mistakes were not committed by pro se plaintiff 

and that he was “entitled and required to rely on the Marshal to serve the defendant or the United 

States Attorney within the statutory time period.”); Thomas v. Fed. Aviation Admin., No. 05–2391, 

2007 WL 219988, at *4 (D.D.C. Jan. 25, 2007) (finding “good cause” for the delay in service of 

process on named defendants where, due to Clerk's Office error and “[t]hrough no fault of 

Plaintiff's,” the summonses and complaints were not timely served). 

For all of these reasons, and because all Defendants have since been served, and Defendants 

have not offered any argument to suggest that they were prejudiced by this delay, the Court 

declines to dismiss this matter pursuant to Fed. Rs. Civ. P. 4(m) and 12(b)(5). 

Subject Matter Jurisdiction

Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a 

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan 

v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited 

jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 

F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an 

examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as 

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction 

upon a federal court.’” Akinseye v. District of Columbia, 339 F. 3d 970, 971 (D.C. Cir. 2003) 

(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). 
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Further, a court is required to dismiss an action “at any time” if it determines that the subject matter 

jurisdiction is wanting. See Fed. R. Civ. P. 12(h)(3). 

When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents 

outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735 

n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (holding same); see also Artis 

v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (“A court may consider material outside 

of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subjectmatter jurisdiction.).” By considering documents outside the pleadings when reviewing a motion 

to dismiss pursuant to Rule 12(b)(1), the court does not convert the motion into one for summary 

judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be converted into 

a motion for summary judgment” when documents extraneous to the pleadings are considered by 

a court. Haase, 835 F.2d at 905. 

Defendants state correctly that the United States and its agencies are entitled to sovereign 

immunity, except to the extent that they expressly consent to suit. See Def.’s Mem. at 3–4; United 

States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted). Additionally, a lawsuit against a 

government official in his or her official capacity “generally represent[s] only another way of 

pleading an action against an entity of which an officer is an agent,” such that “an official capacity 

suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. 

Graham, 473 U.S. 159, 165-66 (1985) (internal citations omitted); see also Clark v. Library of 

Congress, 750 F.2d 89, 103, 104, n.31 (D.C. Cir. 1984) (holding that express waiver is required, 

regardless of whether such actions are brought against a government agency directly or against the 

officials in their official capacity). A waiver of sovereign immunity “must be unequivocally 

expressed in statutory text, and [it cannot] be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) 
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(citations omitted). Plaintiff has not established that DHS or its officers have expressly consented 

to damages suit. 

Therefore, to the extent that Plaintiff intends to raise any constitutional tort claims, see 

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), his demand for money damages against DHS and its 

officials (named in their official capacity) for any alleged constitutional violation(s) must fail. See, 

e.g., Roman v. Nat'l Reconnaissance Office, 952 F. Supp. 2d 159, 163–64 (D.D.C. 2013). 

However, Plaintiff seems to clarify, through his Opposition, that he is not alleging any 

constitutional tort claims; he solely discusses allegations of gender/sex discrimination and 

retaliation pursuant to Title VII. See Pl.’s Opp. at 2–3, 12–16. For this reason, Defendants’ 

sovereign immunity argument is now moot. 

The Court agrees with Defendants that Plaintiff has incorrectly sued DHS itself in bringing 

his claims for discrimination. Def.’s Mem. at 4 n.4; Def.’s Rep. at 3. Title VII is the exclusive 

remedy available to a federal employee seeking redress of employment discrimination, Brown v. 

General Services Administration, 425 U.S. 820, 835 (1976); Kizas v. Webster, 707 F.2d 524, 542

(D.C. Cir. 1983), cert. denied, 464 U.S. 1042 (1984), and the head of the agency is the only proper 

defendant in a Title VII action, 42 U.S.C. § 2000e–16(c) (1982); Davis v. Califano, 613 F.2d 957, 

958 n.1 (D.C. Cir. 1980). Nonetheless, this appears to be an innocuous error and is easily cured 

“simply by naming” the current Acting DHS Secretary as the only party defendant, Jarrell v. U.S. 

Postal Service, 753 F.2d 1088, 1091 (D.C. Cir. 1985), and this particular type of amendment “shall 

be freely given when justice so requires,” id. (remanding matter to trial court and allowing pro se

plaintiff to amend his complaint to substitute the Postmaster General for the Postal Service as party 

defendant) (citing Fed. R. Civ. P. 15(a)). Therefore, the Court does not find dismissal for want of 

subject matter jurisdiction appropriate at this time. 
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Failure to State a Claim

In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In 

Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, 

the tenet that a court must accept as true all of the allegations contained in a complaint is 

inapplicable to legal conclusions.” Id. at 678. “Second, only a complaint that states a plausible 

claim for relief survives a motion to dismiss.” Id. at 679.

A claim is facially plausible when the pleaded factual content “allows the court to draw the 

reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The 

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 

possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels 

and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting 

Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Id. Additionally, when a plaintiff is proceeding IFP, 

the court is mandated to dismiss a complaint which fails to state a claim upon which relief can be 

granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii); see also Baker v. Director, U.S. Parole Com’n, 916 

F.2d 725, 727 (D.C. Cir. 1990) (holding that a sua sponte dismissal is appropriate for failure to 

state a claim pursuant to Fed. R Civ. P. 12(b)(6)). 

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily 

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated 

by reference in the complaint and matters about which the Court may take judicial notice.” 
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Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis 

Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997)). 

Defendants argue that Plaintiff’s Complaint is insufficient pursuant to Fed. R. Civ. P. 8(a). 

Def.’s Mem. at 3. They further contend that the vagaries of the Complaint are compounded by the 

fact that Plaintiff “raised numerous allegations at the administrative level, some of which were 

accepted by the agency and some which were not[,]” id. at 1 n.2, but plaintiff fails to specify

“whether he intends to pursue all of the claims that were investigated and resolved against him 

without a hearing at the administrative level[,]” id. at 1. Due to ambiguous nature of the 

Complaint, Defendants attest that they are “left unable to identify the nature of his claims[,] . . . 

whether Plaintiff has timely exhausted the administrative remedies that are a prerequisite to 

bringing a federal action, and whether Plaintiff can present factual allegations that would support 

a claim for relief.” Id. at 1–2. 

The Court agrees that Plaintiff’s Complaint falls short. Pro se litigants must comply with 

the Federal Rules of Civil Procedure. Jarrell, 656 F. Supp. at 239. Rule 8(a) of the Federal Rules 

of Civil Procedure requires complaints to contain “(1) a short and plain statement of the grounds 

for the court’s jurisdiction [and] (2) a short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see Iqbal, 556 U.S. at 678-79; Ciralsky v. CIA, 

355 F.3d 661, 668-71 (D.C. Cir. 2004). The Rule 8 standard ensures that defendants receive fair 

notice of the claim being asserted so that they can prepare a responsive answer and an adequate 

defense and determine whether the doctrine of res judicata applies. Brown v. Califano, 75 F.R.D. 

497, 498 (D.D.C. 1977). 

The Complaint, as pled, merely states that Plaintiff “is seeking to file a civil action . . . in 

this Court[,]” but fails to identify any legal authority upon which he intends to rely. The complaint 
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affords some measure of factual information, however, that information is scattered with very little 

context or detail, and ranges from indefinite references to Plaintiff’s Equal Employment 

Opportunity Commission (“EEOC”) administrative pursuits, see Compl. ¶ 1, to alleged sexual 

harassment he suffered, see id., to other unspecified alleged “inconsistencies and mistruths” on the 

part of DHS and the EEOC, see id. at 2. He hints at allegations of employment discrimination, see 

Compl. at 1–2, but he then fails to specify any intended cause of action. The Complaint is also 

devoid of facts, identities, locations, or other information essential to maintaining claims before 

the Court. It is also lacking the substance that would provide adequate notice to Defendants in 

preparing to defend this case. 

Plaintiff, however, provides certain clarity by way of his Opposition. In contrast to the 

Complaint, the Opposition presents a generous amount of facts and aptly specifies his intention to 

bring claims for gender/sex discrimination and retaliation pursuant to Title VII. See Pl.’s Opp. at 

2–9, 12–16, 18, 20–1, 25, 28, 30–2. He alleges that he suffered gender/sex discrimination and 

harassment during the time he worked for FEMA. See id. at 2–5, 12–15, 17–21. As a result, he 

filed complaints with the EEO, and then allegedly suffered retaliation due to this activity. See id.

at 3, 5, 15–16, 21–5, 31. He alleges that he was unfairly removed from his position and then 

intentionally prevented from obtaining other employment. See id. at 2–3. He also alleges that the 

was unfairly accused of theft after his termination. See id. at 3. These additional and vastly 

improved allegations in the Opposition assist the Court and Defendants in discerning Plaintiff’s 

intended claims. 

In order to survive a motion to dismiss, a plaintiff generally may not amend his complaint 

nor assert new claims by way of a brief in opposition. Kingman Park Civic Assoc. v. Gray, 27 F. 

Supp. 3d 142, 162 n.10 (D.D.C. 2014); Perkins v. Vance-Cooks, 886 F. Supp. 2d 22, 29 n.5 (D.D.C. 
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2012); Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.3 (D.D.C. 2010); College Sports 

Council v. Gov’t Accountability Office, 421 F. Supp. 2d 59, 71 n.16 (D.D.C. 2006). 

Notwithstanding, courts have, at times, accepted a pro se litigant’s motion to dismiss opposition 

as a de facto amended complaint. See Richardson, 193 F.3d at 549. 

Here, however, while the Court finds Plaintiff’s Opposition illuminating regarding his 

intended claims, it still finds that a formal amended complaint is required. Where Plaintiff’s 

Complaint is wanting for information and detail, the Opposition is, by contrast, lengthy and 

digressive, and Plaintiff must find a happy medium. For instance, the Opposition references a 

“Claim 1” and “Claims 1-5[,]” Pl.’s Opp. at 25, 27, but those references to claims are unclear, and 

the intended causes of action and facts are confusingly amalgamated. Also, at times Plaintiff 

focuses heavily on summary judgment standards, arguments, and issues, see id. at 10–12, 29–32, 

34–9, but no party has moved for summary judgment and thus, it is not before the Court. “A 

confused and rambling narrative of charges and conclusions . . . does not comply with the 

requirements of Rule 8.” Cheeks v. Fort Myer Constr. Corp., 71 F. Supp. 3d 163, 169 (D.D.C. 

2014) (citation and internal quotation marks omitted). 

Pursuant to Federal Rules of Civil Procedure 15(a)(2), “[t]he court should freely give leave 

when justice so requires.” Fed. R. Civ.P. 15(a)(2); see also Graves v. United States, 961 F. Supp. 

314, 317 (D.D.C. 1997) (noting that the decision whether to allow leave to amend is within the 

court's discretion); Davis v. Liberty Mut. Ins. Co., 871 F. 2d 1134, 1136-37 (D.C. Cir. 1989) 

(stating that “[i]t is common ground that Rule 15 embodies a generally favorable policy toward 

amendments.”). Absent “undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowance of the amendment, futility of amendment, etc.,” a court 
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should allow amendment of a complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425-26 

(D.C. Cir. 1996) (internal quotation marks and citations omitted).

Here, reviewing all of Plaintiff’s filings and holding them to a less stringent standard than 

those drafted by a lawyer, see Richardson, 193 F.3d at 548, the Court finds that he should be 

provided an opportunity to amend his Complaint. See Gonzalez v. Holder, 763 F. Supp. 2d 145, 

149 n.1 (D.D.C. 2011) (proposing that plaintiff, proceeding pro se and IFP, who raised new claims 

in his opposition to motion to dismiss, should consider filing an amended complaint) (citing Carter 

v. Dep't of the Navy, No. 05–cv–0775 (RBW), 2006 WL 2471520 at *4 (D.D.C. Aug. 24, 2006) 

(dismissing without prejudice new claims raised in plaintiff's opposition to defendant's motion to 

dismiss with leave to amend the complaint), aff'd, 258 Fed. Appx. 342 (D.C. Cir. 2007) (per 

curiam).

For these reasons, Plaintiff shall file an amended complaint “to assert with greater clarity”

his Title VII discrimination and retaliation claims, which materialized more fully during motions

briefing. Carter, 2006 WL 2471520 at *6 (limiting the claims in the impending amended to 

complaint to those newly raised in opposition to motion to dismiss) (citing Wyatt v. Syrian Arab 

Republic, 362 F. Supp. 2d 103, 117 (D.D.C. 2005) (allowing plaintiffs to specifically and limitedly 

amend their complaint based on allegations in their opposition, but not allowing any other 

modifications of the complaint).

IV. CONCLUSION 

For all of these reasons, the Court denies Defendants’ Motion to Dismiss WITHOUT 

PREJUDICE and shall allow Plaintiff to file, by April 6, 2020, an amended complaint in 

compliance with the Federal Rules of Civil Procedure and District of Columbia Local Civil Rules. 

In this regard and where applicable, he must specify by number, the EEOC decisions related to his 
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intended claims. He must also name the proper defendant, see 42 U.S.C. § 2000e–16(c), namely, 

the current Acting DHS Secretary, and remove all improper defendants. A separate Order with 

additional detail accompanies this Memorandum Opinion. 

________/s/__________________

COLLEEN KOLLAR-KOTELLY

Date: March 4, 2020 United States District Judge