Opinion
CIVIL 1:20-CV-0758
07-06-2021
MARILYN MARIE SMITH, Plaintiff v. DOUG LAWYER FRISON, et al., [1] Defendants
CONNER, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
I. INTRODUCTION
In August of 2020, this Court screened Plaintiff's original pro se complaint, which alleged employment-discrimination and First Amendment claims, and found it deficient (Doc. 8). Plaintiff's filed an amended complaint that does not cure the identified problems and also creates additional deficiencies. Dismissal of this case without further leave to amend is recommended.
II. BACKGROUND & PROCEDURAL HISTORY
On May 8, 2020, Marilyn Marie Smith (“Plaintiff”) initiated this pro se civil rights action. The Court granted Plaintiff leave to proceed in forma pauperis and conducted a screening analysis under 28 U.S.C. § 1915(e).
Under this statute, the Court is required to dismiss any action that is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In her Original Complaint (Doc. 1), Plaintiff alleged claims under Title VII of the Civil Rights Act of 1964, for employment discrimination, and under the First Amendment, for violation of her right to free speech, against the following Defendants:
(1) Doug “Lawyer” Frison
(2) Kenneth McDowell
(3) Jeffrey Hoover
(4) Myoshi Powell
(5) Bryan WardId. After reviewing Plaintiff's Complaint (Doc. 1), I concluded that it failed to state a claim upon which relief could be granted.
Regarding her employment discrimination claim, Plaintiff failed to allege that she is in a protected class or what adverse employment action occurred. (See Doc. 8). Her First Amendment claim, against a federal actor, failed because First Amendment claims are not valid Bivens claims. Id. Instead of recommending dismissal, I gave Plaintiff thirty (30) days to file an amended complaint. Id. at p. 13. I advised Plaintiff that failure to file an amended complaint may result in dismissal of this case. Id. I further advised that an amended complaint would completely replace the Original Complaint, which would have no role in the future of the case. Id. Plaintiff's amended complaint was due September 11, 2020. Id.
The case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), identifies the limited causes of action that exist for someone alleging a constitutional violation by a federal actor.
On December 29, 2020, Plaintiff filed an Amended Complaint. (Doc. 9). It is difficult to discern the claims Plaintiff is raising in her Amended Complaint. She names only three Defendants: Doug Frison Lawyer, Dwight W. Decker, and Cheryl Swizrol. Id. at p. 1. Two of these Defendants, Dwight W. Decker and Cheryl Swizrol, were not named in the Original Complaint. (Doc. 1). Four of the previously named Defendants were terminated from the proceeding, as they are not named in the Amended Complaint. (See Docs. 1, 9).
Plaintiff states in her Amended Complaint that she wishes to file a complaint under “II amendment concel wepon [sic] plaintiff do not own a fire arm.” (Doc. 9). She then alleges that “the Army Depot said they did not rehire based upon jaundice: diffinition [sic] eye yellow fingernails and skin objection your Honor plaintiff does not have Hepititist [sic] C.” Id. at p. 2. Although Plaintiff references “the Army Depot” in this allegation, the Army Depot does not appear to be a defendant. On the form compliant Plaintiff used, on a line beginning with “The defendant is, ” Plaintiff writes, “Douglass Frison Lawyer Army Depot 2001 Mission Drive New Cumberland.” Id. at p. 1. However, in the case caption, after the form complaint directs Plaintiff to “Enter above the full name of all the defendant(s) in this action, ”
Plaintiff lists only Doug Frison Lawyer, Dwight W. Decker, and Cheryl Swizrol.
Therefore it is not clear whether Plaintiff is naming both Douglass Frison Lawyer and the Army Depot as defendants, or whether she is simply providing an address for Douglass Frison Lawyer. Plaintiff asks the Court for back pay, present pay, overtime pay, and “medical eye Dental.” Id. The amended complaint, like the original is legally insufficient and should be dismissed.
III. LEGAL STANDARD
This Court has a statutory obligation under 28 U.S.C. § 1915(e)(2) to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. See Atamian v. Burns, 236 Fed.Appx. 752, 755 (3d Cir. 2007) (“[T]he screening procedures set forth in 28 U.S.C. § 1915(e) apply to in forma pauperis complaints filed by prisoners and non-prisoners alike.”).
Section 1915(e)(2) provides, in pertinent part,
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e); see also Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) (“[T]here is no constitutional right to the expenditure of public funds and the valuable time of federal courts to prosecute an action which is totally without merit.”).
In performing this mandatory screening function, the Court applies the same standard used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and ‘“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). A pro se complaint must recite factual allegations that raise the claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action. The complaint must contain more than legal labels and conclusions. IV. ANALYSIS
Only the claims and facts alleged in Plaintiff's Amended Complaint are analyzed below. As I explain, Plaintiff fails to state any understandable claims in her Amended Complaint. (Doc. 9). Plaintiff also names two new Defendants in her Amended Compliant, but she does not explain who they are or how they are connected to her claims. Id. at p. 1. For these reasons, it is recommended that Plaintiff's Amended Complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii).
A. Plaintiff's Complaint Violates Rule 8 and Fails to State a Claim Upon Which Relief May Be Granted
Dismissal of Plaintiff's Amended Complaint is warranted because her Amended Complaint fails to comply with Federal Rule of Civil Procedure 8. Rule 8 explains that a complaint must contain, “a short and plain statement showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. Dismissal under Rule 8 is proper when a complaint leaves “the defendants having to guess what of the many things discussed constituted [a cause of action], ” see Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158 (3d Cir. 2011), or when the complaint is so “unclear” as to defy response, see Tillio v. Spiess, 441 Fed.Appx. 109 (3d Cir. 2011). Similarly, dismissal is appropriate in “‘those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'” Id. at 110 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
Plaintiff's Amended Complaint fails to explain what claims Plaintiff is attempting to raise. Plaintiff states she wishes to file her complaint under the Second Amendment because she “do[es] not own a fire arm.” (Doc. 9, p. 1). But there are no other facts to indicate why the Second Amendment is implicated or why Plaintiff's status as a gun owner or not a gun owner is relevant.
Similarly, Plaintiff alleges a failure to rehire because of jaundice, but she does not allege who had jaundice and who was not rehired. Id. at p. 2. She states only that she “does not have Hepititist [sic] C.” Id. Even if the Court assumes Plaintiff is alleging that the Army Depot did not rehire Plaintiff based upon medical conditions she alleges not to have-hepatitis C or jaundice-she has not alleged this against a named defendant. Alternatively, even if the Court assumes that Plaintiff's rehiring allegation is directed at Defendant Frison in some capacity at the Army Depot, and if this claim is construed as one under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the ADA does not create individual liability. Plaintiff therefore does not state a valid ADA claim against Defendant Frison.
Title I of the ADA states, “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
See Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (“[T]here appears to be no individual liability for damages under Title I of the ADA.”); see also Sinico v. Barry, No. 1:18-CV-01259, 2020 WL 528765, at *4 (M.D. Pa. Feb. 3, 2020) (“Neither Title I of the ADA nor Section 504 of the [Rehabilitation Act] allow claims against individual defendants.”).
Because Plaintiff's Amended Complaint is impossible to understand, is “ambiguous, vague, or otherwise unintelligible, ” and does not contain a short and plain statement of her entitlement to relief, I recommend that Plaintiff's Amended Complaint be dismissed under Federal Rule of Civil Procedure 8. See Tillio, 441 Fed.Appx. at 110. Plaintiff also fails to state a cognizable claim under the ADA.
B. Plaintiff Fails To Allege Defendants' Involvement
Plaintiff lists Douglass Frison, Dwight Decker, and Cheryl Swizrol as Defendants in her Amended Complaint, but she does not provide any facts regarding these Defendants. There is nothing to indicate who these Defendants are and why they are relevant to Plaintiff's claims. This violates the requirement in Rule 8 of the Federal Rules of Civil Procedure that a complaint contain “a short and plain statement showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. Plaintiff merely lists Defendants Frison, Decker, and Swizrol as defendants without any other facts or information. Without more, I cannot determine whether Defendants Frison, Decker, and Swizrol violated Plaintiff's rights. It is therefore recommended that Plaintiff's claims be dismissed.
As discussed above, even if I generously construe Plaintiff's Amended Complaint as making an ADA claim against Defendant Frison for failing to rehire Plaintiff based upon medical conditions Plaintiff does not have, Defendant Frison cannot face individual liability under the ADA.
C. Leave to Amend
On August 12, 2020, this Court gave Plaintiff leave to amend her Complaint by September 11, 2020, and she failed to do so until December 29, 2020. (Docs. 8, 9). “District courts are to offer amendment in pro se civil rights cases unless doing so would be ‘inequitable or futile.'” Flynn v. Dep't of Corr., 739 Fed.Appx. 132, 136 (3d Cir. 2018) (quoting Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)). The Court accepts Plaintiff's late-filed Amended Complaint. However, because Plaintiff was already granted leave to amend, and because her Amended Complaint states no understandable claim, in violation of Rule 8, Plaintiff should not be granted further leave to amend.
V. RECOMMENDATION
Accordingly, IT IS RECOMMENDED that:
(1) Plaintiff's Amended Complaint (Doc. 9) be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without granting further leave to amend.
(2) The Clerk of Court be directed to CLOSE this case.
NOTICE OF RIGHT TO OBJECT UNDER LOCAL RULE 72.3 AND 28 U.S.C. § 636 (b)
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.