Complaints must state some specific claim or allegation based on facts. Courts won’t just take a person’s word for it that they’ve been wronged. Georr M. Birla was given several chances by the courts to amend his claim against the defendants, but never got it right.  He appealed pro se from an order of the District Court dismissing his amended complaint. 

Birla, an African American, filed a short two-page Title VII complaint against the New Jersey Board of Nursing, alleging that they refused to issue him a license to work as a Certified Homecare Health Aide because of “racial and retaliatory discrimination.” The District Court dismissed his complaint because he didn’t claim that the Nursing Board was his “employer” for purposes of relief under Title VII. The District Court’s dismissal was without prejudice, so Birla was allowed to amend his complaint to try a second time to assert a federal claim, including any claim under 42 U.S.C. §1983.  Birla’s second attempt was an amended complaint and a notice of appeal. The Third Circuit Court of Appeals, in a per curium decision, dismissed his appeal for lack of jurisdiction, as the District Court hadn’t yet entered a final judgment. 

Birla’s third swing was a three page amended complaint which again sought relief under Title VII and also under §1983. This time, he added the allegation that the Nursing Board denied him a license because their criminal history background check, which he said was a “racial and retaliatory discriminatory practice” (without further facts), revealed “inaccurate records more than 15 years old.” The Nursing Board again filed a motion to dismiss, and the District Court again granted it. 
In dismissing his third try, the District Court once again said that Birla’s Title VII claim lacked a Title VII “employer.” The District Court also did Birla the favor of liberally interpreting his complaint as to also assert an equal protection violation under §1983. Even so, they dismissed his claims for damages against the Board and its director because state agencies and officials in their official capacities are not “persons” subject to liability for damages under the statute. Birla’s matter-of-fact allegations failed to evidence any plausible entitlement to relief, and, as a result didn’t satisfy the pleading standard of which the District Court cautioned him in its previous opinion. 
The District Court dismissed most of Birla’s claims with prejudice, meaning that he couldn’t bring them up again in court. Its dismissal of Birla’s §1983 claims against the director personally and for injunctive relief, however, was “without prejudice.” The District Court didn’t explain what it meant by this, but it also didn’t expressly permit Birla leave to amend the complaint as it did before.  The case was marked “closed” on the District Court docket. Birla appealed this decision.
The Third Circuit explained that the District Court’s dismissal of some of Birla’s claims without prejudice raised a threshold jurisdictional issue. A dismissal without prejudice generally does not constitute a final order reviewable under 28 U.S.C. §1291 because it does not finally resolve the litigation. Instead, it "implicitly invites the plaintiff to re-plead. However, given the circumstances here, the appellate court said that it construed the District Court’s order as final.
The Third Circuit reasoned that the District Court knew how to give Birla leave to amend when that was its intent, and it chose not to do so a second time. Moreover, the District Court cited an earlier Third Circuit decision in discussing the pleading standard, stating “that district judges expressly state, when appropriate, that the plaintiff has leave to amend….” Because the District Court didn’t grant Birla leave to amend again, the Third Circuit didn’t believe that its dismissal of the claims “without prejudice” was an invitation to file yet another amended complaint. Instead, the court said it was merely a statement that the District Court did not reach the merits of Birla’s claim but, that he inadequately pleaded entitlement to federal relief. This  meant that the District Court’s ruling was without prejudice for Birla’s to seek whatever relief might be available in state court. As such, the Third Circuit held that the District Court intended its order to finally resolve the case and it had jurisdiction.
The appellate court agreed that dismissal was justified when turning to the merits. No matter how liberally construed, neither of Birla’s complaints raised any inference that the Nursing Board violated Title VII or any other federal law. In addition, the appellate couldn’t say that the District Court abused its discretion in declining to grant Birla another leave to file an amended complaint. Birla didn’t argue the point anyway. The District Court explained the pleading standard in its initial order granting Birla leave to amend, and it even went so far as to suggest that he might be attempting to assert claims that might be actionable under §1983. Birla’s second try at stating a federal claim suffered from the same deficiencies as his first. His complaints failed to suggest that he could assert a plausible federal claim if given another chance to plead in more detail. The appellate court also stated that Birla made allegations for the first time in his appellate briefs. The Third Circuit wrote that it generally didn’t consider allegations made for the first time on appeal, but noted that
Birla’s new allegations still failed to state a plausible federal claim. Finally, Birla raised more legal arguments for the first time in his reply brief. The Third Circuit said it typically didn’t look at arguments raised for the first time in reply either, but Birla’s arguments were equally as unavailing.
Birla also alleged that he graduated from a certified nursing program and that, although he provided the Board with evidence that he has not been convicted of a disqualifying crime and was deemed eligible for certification in November 2011, the Board still hadn’t placed him in the database of eligible employment candidates. The Nursing Board, also for the first time on appeal, responded that they notified Birla that he would be licensed upon their receipt of certain documentation that he had not provided. None of this, the Third Circuit said, was helpful to amend his complaint to state a plausible federal claim. However, it appears that Birla might get his license if he merely complied with the Board’s request for the additional information instead of attempting to resolve the issue in the courts. 
Birla v. New Jersey Bd. of Nursing, — Fed.Appx. —-, 2013 WL 6068477 (C.A.3 (N.J.) Nov. 12, 2013).
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