United States District Court, D. Delaware
Anthony Brown, New Castle, Delaware. Pro Se
J. Cleary, Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware. Counsel for Defendants.
ANDREWS, U.S. District Judge.
Devon Anthony Brown, who appears pro se and has been
granted leave to proceed in forma pauperis, filed
this action on July 22, 2016, followed by an amendment on
August 8, 2016. (D.I. 2, 5). Defendants move to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 8). Plaintiff
opposes. (D.I. 15). Briefing on the motion is complete.
as Defendants are Daniel McGannon, Brenda Sands, Patrice
Gilliam-Johnson, and an unnamed Delaware Department of Labor
Security Officer. Plaintiffs allegations are set forth in
the Court's October 26, 2016 memorandum and order that
screened the case pursuant to 28 U.S.C. § 1915(e)(2) and
they are incorporated herein. (D.I. 6, 7). Plaintiff raises
due process claims against McGannon, Sands, and
Gilliam-Johnson for refusing to accept his charge of
discrimination against his employer. He also raises a
supplemental state law claim for battery against the DDOL
move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the
grounds that: (1) Gilliam-Johnson is not liable under any
plausible theory; (2) McGannon and Sands are protected from
liability by reason of qualified immunity from suit; and (3)
Plaintiffs allegations do not constitute a violation of his
due process rights.
proceeds pro se and, therefore, his pleadings are
liberally construed and his complaint, "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). Under Rule 12(b)(6),
a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing
them in the light most favorable to the plaintiff, a court
concludes that those allegations "could not raise a
claim of entitlement to relief." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). The legal standard
when ruling on Rule 12(b)(6) motions is identical to the
standard used when screening a complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). See Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying
Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to
state a claim under § 1915(e)(2)(B)).
'detailed factual allegations' are not required, a
complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action.'" Davis v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555). In
addition, a plaintiff must plead facts sufficient to show
that a claim has substantive plausibility. See Johnson v.
City of Shelby, ___ U.S.___, 135 S.Ct. 346, 347 (2014).
A complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
reviewing the sufficiency of a complaint, a court should
follow a three-step process: (1) consider the elements
necessary to state a claim; (2) identify allegations that are
merely conclusions and therefore are not well-pleaded factual
allegations; and (3) accept any well-pleaded factual
allegations as true and determine whether they plausibly
state a claim. See Connelly v. Lane Constr. Corp.,
809 F.3d 780, 787 (3d Cir. 2016); Williams v. BASF
Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014).
Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Court considers Defendants' motion to dismiss the claims
against Gilliam-Johnson, Secretary of the Delaware Department
of Labor, and revisits the allegations raised against her.
Defendants seek dismissal based upon her supervisory
position. The Complaint alleges that Plaintiff called
Gilliam-Johnson's office and communicated with "Ms.
Patty, " but does not provide the content of the
communication or identify "Ms. Patty." (D.I. 2 at
p.6). The Complaint goes on to allege that Gilliam-Johnson
and her office "shunned their responsibility by not
responding or taking any action." (Id.).
well established that claims based solely on the theory of
respondeat superior or supervisor liability are facially
deficient. See Ashcroft v. Iqbal,556 U.S. 662,
676-77 (2009); see also Solan v. Ranck, 326
F.App'x 97, 100-01 (3d Cir. 2009) (holding that "[a]
defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat
superior"). Facts showing personal involvement of the
defendant must be asserted; such assertions may be made
through allegations of specific facts showing that a
defendant expressly directed the deprivation of a
plaintiff's constitutional rights or created such
policies where the subordinates had no discretion in applying
the policies in a fashion other than the one which actually
produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing
that the supervisor's actions were "the moving
force" behind the harm suffered by the plaintiff. See