IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

WINSTON	E.	MORSE,	SR.

Plaintiff,

v.

ADVANCE	CENTRAL	

SERVICES	ALABAMA,

Defendants.

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CIVIL	ACTION	NO.

15-00343-CB-M

		ORDER

On	April	12,	2016,	this	Court	entered	an	order	finding	that	Plaintiff	had	failed	

to	state	a	claim	upon	which	relief	can	be	granted.		Plaintiff,	who	is	proceeding	pro	se

was	given	an	opportunity	to	amend	his	complaint	to	state	a	claim	for	relief	under	

the	Americans	with	Disabilities	Act (ADA).		Plaintiff	has	filed	an	amended	complaint	

(Doc.	38),	but	that	complaint	is	also	deficient.		Defendant	has	filed	a	motion	to	

dismiss	(Doc.	41),	which	is	due	to	be	granted.1

Procedural	Background

Plaintiff	Winston	Morse,	Sr.	filed	a	pro	se complaint on	July	2,	2015	in	which	

he	attempted	to	assert	an	ADA	claim	against	Advance	Central	Services	Alabama	and	

its	human	resources	manager,	Matt	Havard.		(Doc.	1.)		The complaint listed	as	

defendants	“Advance	Central	Services	Alabama	(Press	Register)	and	Matt	Havard,	

																																																							 1 Plaintiff	has	not	been	given	an	opportunity	to	respond	to	the	motion	to	

dismiss	because	the	Court	concludes	that	any	response	would	be	futile.		Plaintiff	has	

been	given	numerous	opportunities	to	correct	the	deficiencies	in	his	complaint,	to	

no	avail.		(Docs.	3,	13,	20,	32	&	35.)

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Human	Resources	Mgr.”	Soon	thereafter,	the	Magistrate	Judge	entered	an	order	

requiring	Morse to	clarify	his	claims	by	responding	to	four	interrogatories	regarding

alleged	disability	and	also	required	that	Morse	file	copy	of	his	EEOC	charge	of	

discrimination.		(Doc.	3.)			Morse	complied	with	the	order.		(Docs.	4	&	5.)		Next,	the	

Defendants	filed	a	motion	to	dismiss	for	failure	to	state	a	claim.		(Doc.	10.)		Morse	

sought,	and	was	granted,	several	extensions	of	time	while	he	sought	to	hire	an	

attorney	and	respond	to	the	motion	to	dismiss.		(Docs.	14,	15,	18,	19,	&	20.)				

Plaintiff	did	not	obtain	counsel	but	did	file	a	pro	se response	to the	motion	to	

dismiss.		The	Court	then	entered	the	order	dismissing	Morse’s	claim	against	Havard	

and	requiring	Morse to	file	an	amended	complaint	to	cure	the	deficiencies	in	his	

claims	against	Advance	Central	Services	Alabama (ACSA).		After	another	extension	

of	time	was	granted	at	Morse’s	request,	Morse	filed	an	amended	complaint	entitled	

“Response	to	Judge	Butler	Order/Amended	Motion.”				(Doc.	38.)

The	Amended	Complaint &	Related	Documents

In	his	amended	complaint,	Morse	again	alleges	that	he	“suffer[ed]	a	

debilitating	work[-]related	injury,	on	or	before	December	14,	2013”	through	no	fault	

of	his	own,	was	terminated	on	January	7,	2014.		(Am.	Compl.	1.)		After	his	injury,	he	

“received	permission	to	seek	medical	treatment	[and]	was	subsequently diagnosed	

with	Carpal	Tunnel	Syndrdome,	nerve	ending	damage”	and,	in	addition,	“was	also	

arthritis	in	both	hands.”		(Id.)		According	to	the	amended	complaint,	the	carpal	

tunnel,	nerve	ending	damage	and	arthritis	diagnoses	were	made	by	Dr.	Freeman	

“[o]n	or	before	May,	2014.”		(Id.	2)	Morse	also	refers	to	shoulder	problems	that	

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began	“[o]n	or	before	January	2015.”	(Id.)		Morse	has	“severe	pain,”	his	shoulder	and	

arm	are	“also	very	weak	with	limited	range”	which	prevents	[him]	from	performing	

daily	chores	and/or	personal	hygiene	activities.”		(Id.) The	amended	complaint	also	

alleges	that	the	EEOC	investigated	his	charge	of	discrimination	and	“concluded	that	

[Morse]	was/am	disabled	and	ha[s] met	and	surpassed	the	criteria(s)	[sic]	needed	

to	be	protected	by	the	ADA.		Finally,	Morse	asserts	that	he	was	a	valuable	asset	as	an	

employee	and	that	he	would	“be	just	as	successful	and	effective”	as	he	was	

previously.	(Id.)		

In	addition	to	the	foregoing	factual	allegations,	the	amended	complaint	

incorporates	by	reference	the	EEOC’s	right-to-sue	letter	and	other	EEOC	documents	

as	well	as	numerous	medical	records.	 Contrary	to	the	allegations	in	the	amended	

complaint,	the	EEOC	did	not	determine	that	Morse	was	disabled	and/or	met	the	

requirements	of	the	ADA.		Instead,	the	EEOC	was	“unable	to	conclude	that	the	

information	obtained	establishes	violations	of	the	statute.”		(Am.	Comp.	Ex.	C.)		

Moreover,	the	medical	records	submitted	by	Morse	in	conjunction	with	his	original	

and	amended	complaints	establish	that	he	sustained	a	work-related	injury	to	his	

hand	on	or	about	December	13,	2013.		On	December	16,	2013,	Morse	was	examined	

by	a	doctor	who	diagnosed	a	hand	sprain.		Morse	was	released	for	“light	duty”	work	

and	returned	for	a	follow-up	appointment	on	December	23,	2013.		At	the	follow-up	

appointment,	the	doctor	noted	“symptoms	of	carpal	tunnel	with	an	acute	strain,”	

referred	Morse	to	a	specialist,	and	released	him	for	restricted	duty	with	“[l]imited	

lifting	and	grasping	with	right	hand.”		(Doc.	4,	14.)

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Legal	Analysis

In	its	motion	to	dismiss,	Defendant	Advance	Central	Services	Alabama	

(ACSA) argues	that	Morse has	once	again	failed	to	satisfy	the	minimum

requirements	necessary	to	state	a	claim	for	relief	under	the	ADA.2 3 As	the	Court	

recognized	in	its	previous	order:

“To	state	a	discrimination	claim	under	the	ADA,	a	plaintiff	must	allege	

sufficient	facts	to	plausibly	suggest	‘(1)	that	he	suffers	from	a	

disability,	(2)	that	he	is	a	qualified	individual,	and	(3)	that	a	‘covered	

entity’	discriminated	against	him	on	account	of	his	disability.”	Surtain	

v.	Hamlin	Terrace	Foundation,	789	F.3d	1289	(11th Cir.	2015)	(quoting	

Cramer	v.	Fla.,	117	F.3d	1258,	1264	(11th	Cir.1997)).

(Ord.	at	6,	Doc.	32.)	The	ADA	defines	disability	as	‘“(A)	a	physical	or	mental	

impairment	that	substantially	limits	one	or	more	of	the	major	life	activities	of	such	

individual;	(B)	a	record	of	such	an	impairment;	or	(C)	being	regarded	as	having	such	

an	impairment.’”	Id.	(quoting	42	U.S.C.	§	12102(2);	see	also	29	C.F.R.	§	1630.2(g)).	 A	

“major	life	activity”	includes	activities	such	as	“caring	for	oneself,	performing	

manual	tasks,	seeing,	hearing,	eating,	sleeping,	walking,	standing,	sitting,	reaching,	

lifting,	bending,	speaking,	breathing,	learning,	reading,	concentrating,	thinking,	

																																																							 2 The	standard	for	reviewing	a	Rule	12(b)(6)	motion	to	dismiss	was	set	forth	

in	the	Court’s	April	12,	2016	order	(Doc.	32)	and	need	not	be	repeated	in	detail	here.		

Suffice	it	to	say,	facts	pleaded	in	the	complaint	are	taken	as	true	but	conclusions	are	

not.		Randall	v.	Scott,	610	F.3d	701,	709-10	(11th Cir.	2010).			A	court	must	take	the	

factual	allegations	as	true	and	determine	whether	they	plausibly	give	rise	to	a	claim	

for	relief.			Id. at	710.

3 Because	the	amended	complaint	does	not	state	a	claim	under	the	ADA,	the	

Court	does	not	address	ASCA’s	argument	that	the	claim	should be	dismissed	for	

failure	to	exhaust	administrative	remedies.

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communicating,	interacting	with	others,	and	working;	and	the	operation	of	a	major	

bodily	function.”		29	C.F.R.	§	1630.2(i)(1).		

There	are	no	facts	to	suggest	that	Morse	suffered	from,	had	a	record	of,	or	

was	regarded	having	a	disability	within	the	meaning	of	the	ADA	at	the	time	of	his	

termination.4		The	first	two	categories—actual	disability	and	record	of	disability—

require	evidence	that	a	plaintiff	actually	suffered	from	a	mental	or	physical	

impairment	that	substantially	limited	a	major	life	activity	at	the	time	of	the	adverse	

employment	action.		Howard	v.	Steris	Corp.,	550	Fed. Appx.	748,	750	(11th Cir.	2013)	

(employer	must	have actual	knowledge	of	disability	at	time	of	adverse	employment	

action); cf.	Hilburn	v.	Murata	Elec.	N.	Am.,	Inc.,	181	F.3d	1220,	1228-29	(11th Cir.	

1999) (record-of-disability plaintiff	must	have	actual	disability).		According	to	the	

facts	asserted	in	the	amended	complaint	and	supporting	documents,	Morse	did	not	

have	a	disability	at	the	time	of	his	termination.		The	Amended	Complaint	does	not	

identify	any	major	life	activity	that	was	substantially	limited	at	that	time	by	the

impairment	that	existed	at	that	time	(a	sprained	wrist	and	symptoms	of	carpal	

tunnel	syndrome).		He was	capable	of	working,	and	his	ability was	restricted	only	by	

limitations	on	lifting	and	grasping	with	his	right	hand.5

																																																							 4 At	best,	Morse	has	arguably	pled	facts	that	would	demonstrate	he	might	

currently	satisfy	the	definition	of	disability	under	the	ADA.		However,	his	current	

condition	is	the	result	of	medical	conditions	that	have	worsened	or	occurred	after	

ACSA	terminated	his	employment	(carpal	tunnel	surgery,	shoulder	problems,	

arthritis).		

5 Morse	alleges	that	he	currently has	difficulty	completing	daily	chores,	which	

he	attributes to	shoulder	pain	and	to	treatment	for	a	shoulder	problem	diagnosed	in	

2015,	long	after	ACSA	terminated	his	employment.		

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Furthermore,	the	facts	do	not	support	a	claim	that ACSA	regarded Morse	as	

being	substantially	limited	in	a	major	life	activity.		The	only	major	life	activity	

affected	by	Morse’s	impairment,	at	least	to	ACSA’s	knowledge,	was	working.		To	

succeed	under	a	theory	that	ACS	regarded	him	as	being	substantially	limited	in	his	

ability	to	work,	Morse	must	plead	facts	from	which	it	could	be	reasonably	inferred

that	ACSA	perceived	him	to	be	unable	to	perform	“a	class	of	jobs	or	a	broad	range	of	

jobs	in	various	classes.”		Rossbach	v.	City	of	Miami,	371	F.3d	1354,	1359	(11th Cir.	

2004).	At	most, ACSA	knew	that	Morse	was	limited	in	his	ability	to	lift	and	grasp

with his	right	hand	due	to	his	impairment.	 An employer’s	mere	knowledge	of	an	

impairment says	little	about	its	perception	of	that	impairment	on	an	individual’s	

capability	to	perform	jobs	in	the	broader	workforce.		ACSA’s	knowledge	of	Morse’s	

impairment	and	work	restrictions	does	not	create	an	inference	that	it	perceived	

Morse	to	be	unable	to	perform	a	class	of	jobs	or	broad	range	of	jobs	in	other	classes.				

Conclusion

Plaintiff	has	been	unable	to	state	an	ADA	claim	despite	having	been	given	

multiple	opportunities	to	do	so.		Therefore,	the	motion	to	dismiss	is	GRANTED.

DONE and	ORDERED this	the	25th day	of	July,	2016.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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