Hosea L. Flagg v. STATE OF NEW JERSEY OFFICE OF CHILD SUPPORT SERVICES On Appeal from the United…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3193
__________
HOSEA L. FLAGG,
Appellant
v.
STATE OF NEW JERSEY OFFICE OF CHILD SUPPORT SERVICES
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 3-17-cv-02602)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 21, 2019
Before: MCKEE, COWEN and ROTH, Circuit Judges
(Opinion filed: November 27, 2019)
___________
OPINION*
___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

-- 1 of 4 --

2
Hosea Flagg, proceeding pro se, appeals an order of the United States District
Court for the District of New Jersey dismissing his employment discrimination
action. For the reasons that follow, we will affirm the judgment of the District Court.
Flagg filed a complaint against the State of New Jersey, Office of Child Support
Services (“OCSS”) claiming employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. OCSS moved to dismiss the
complaint for failure to state a claim for relief and asserted that Flagg had failed to
comply with basic rules of pleading.
The District Court granted the motion and allowed Flagg to amend his complaint.
OCSS moved to dismiss the amended complaint. Flagg then filed a second amended
complaint purporting to add four individual defendants. Flagg claimed, among other
things, that he was wrongfully terminated based on his age and after he had complained
about remarks about sexual orientation. The District Court allowed OCSS to withdraw
its pending motion and file a motion to dismiss the second amended complaint.
The District Court granted OCSS’s motion to dismiss the second amended
complaint with leave to amend Count I, the wrongful termination claim. The District
Court stated that Flagg had agreed at oral argument to dismiss all other counts and
explained that Flagg had not sufficiently alleged the elements of a claim under the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The District
Court stated that it would not review the merits of a claim based on sexual orientation

-- 2 of 4 --

3
because it found no statements in Count I that could be construed as supporting such a
claim. It also noted that Flagg had acknowledged that he was employed by ACRO
Services Corporation, not OCSS.
Flagg filed a third amended complaint against OCSS, which OCSS moved to
dismiss on several grounds, including sovereign immunity under the Eleventh
Amendment. After a hearing, the District Court granted the motion. The District Court
ruled that OCSS is entitled to immunity on Flagg’s claim for age discrimination under the
ADEA because it is an agency of the Department of Human Services of the State of New
Jersey. The District Court noted that it was unclear whether Flagg intended to assert a
retaliation claim for engaging in protected activity under Title VII and did not review
such a claim. Finally, the District Court stated that Flagg had several opportunities to
cure the deficiencies in his complaint and ruled that further amendment would be futile.
This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of a
motion to dismiss under a plenary standard. Connelly v. Lane Const. Corp., 809 F.3d
780, 786 n.2 (3d Cir. 2016).
Flagg contends on appeal that the District Court erred by failing to address his
claims against the four individual defendants named in his second amended complaint.
He contends the case should have continued against these defendants or the District Court
should have dismissed the action against them. As Flagg appears to recognize, he did not

-- 3 of 4 --

4
properly serve these individuals when he filed his second amended complaint. And
significantly, he did not name them as defendants in his third amended complaint filed
six months later. We find no error under these circumstances.1
Flagg also argues that the District Court erred in dismissing his claim under the
ADEA based on sovereign immunity, but he has not shown an error in this regard. See
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000) (Congress did not abrogate
States’ sovereign immunity to suits under the ADEA); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (the Eleventh Amendment proscribes suits against
States, their agencies, and departments in federal court).
Accordingly, we will affirm the judgment of the District Court.
1A docket entry was made advising Flagg after he attempted service of his second
amended complaint that, if he wished to serve additional defendants, he must request the
issuance of summonses. The copy of the docket entry mailed to Flagg was returned to
the Court, but to the extent he did not learn then of the defect, he had ample time to
discover it. OCSS noted service was improper in its motion to dismiss the second
amended complaint.

-- 4 of 4 --