United States District Court, D. Delaware
TONY A. WILSON, Plaintiff,
GREGORY P. SINNERS, et al., Defendants.
A. Wilson, Milford, Delaware, Pro Se Plaintiff.
U.S. DISTRICT JUDGE
Tony A. Wilson ("Plaintiff), who proceeds pro
se and has been granted leave to proceed in forma
pauperis, commenced this action on October 24, 2016.
(D.I. 1) Plaintiff amended on December 14, 2016, the Amended
Complaint was dismissed, and he was given leave to amend to
cure pleading deficiencies. (D.I. 34, 35) Plaintiff filed a
Third Amended Complaint on June 6, 2017. (D.I. 42) The Court
has jurisdiction pursuant to 28 U.S.C. § 1331. The Court
proceeds to review and screen the Third Amended Complaint
pursuant to 28 U.S.C. § 1915(e)(2).
who is black and an Internal Revenue Service
("IRS") employee, alleges employment discrimination
and intentional infliction of emotional distress. The Third
Amended Complaint consists of 592 paragraphs, names 17
Defendants, and contains three Counts. Named defendants
include the IRS, Department of Treasury employees, and IRS
employees. Throughout "Section 1Y Common Allegations,
" Plaintiff alleges that the adverse employment actions
taken against him are either based upon his race or are
retaliatory actions by Defendants. (D.I. 42 at ¶¶
55-184) Most of the paragraphs in the "Common
Allegations" section in the Third Amended Complaint are
identical to paragraphs in the Second Amended Complaint (with
different paragraph numbers) with the exception of new
paragraphs 55, 84 through 87, 92 through 105, and 181 through
184. The Court will not distill the allegations in the Third
Amended Complaint given their similarity to those set forth
in the Second Amended Complaint. (See D.I. 34 at
Third Amended Complaint seeks to raise claims under Tide VII
of the Civil Rights Act of 1964 ("Tide VII"), as
codified, 42 U.S.C. §§ 2000e to 2000e-17; Section
501 of the Rehabilitation Act ("Rehab Act"), 29
U.S.C. §§ 701-796; the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 2671; and the Family and
Medical Leave Act ("FMLA"), 29 U.S.C. §
2615(a)(1). (D.L 42 at ¶¶ 4-7) Count One is brought
against the IRS and Treasury Department and alleges
employment discrimination and retaliation under Tide VII,
FMLA, and the Rehab Act. (Id. at ¶¶
185-446) Counts Two and Three allege intentional infliction
of emotional distress. (Id. at ¶¶ 447-592)
alleges that as a result of Defendants' actions his job
performance has dropped; he has been subjected to race
discrimination and harassment as well as a hostile work
environment, and retaliation; he has missed educational job
opportunities; and his future earning capacities have been
damaged. (Id. at ¶¶ 160-80) Plaintiff
seeks compensatory and punitive damages as well as injunctive
relief. Plaintiff received a right to sue letter from the
EEOC on or about March 24, 2016. (D.I. 36) He commenced this
action on October 24, 2016.
III. LEGAL STANDARDS
A federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) if "the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief." Ball v. Famiglio, 726
F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C.
§ 1915(e)(2) (in forma pauperis actions). The
Court must accept all factual allegations in a complaint as
true and take them in the light most favorable to a pro
se plaintiff. See Phillips v. County of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Erickson v. Pardus, 551 U.S. 89, 93 (2007).
action is frivolous if it 'lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490
U.S. 319, 325 (1989). Under 28 U.S.C. §
1915(e)(2)(B)(i), a court may dismiss a complaint as
frivolous if it is "based on an indisputably meridess
legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; see also Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) is
identical to the legal standard used when deciding Rule
12(b)(6) motions. See Tourscherv. 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)). However, before dismissing a complaint
or claims for failure to state a claim upon which relief may
be granted pursuant to the screening provisions of 28 U.S.C.
§ 1915, the Court must grant a plaintiff leave to amend
his complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002).
complaint may be dismissed 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." BellAtl. Corp. v.
Trvombly, 550 U.S. 544, 558 (2007). Though
"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'lHosp., 765 F.3d 236, 241 (3d Cir. 2014)
(internal quotation marks omitted). In addition, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.
See Williams v. BASF Catalysts LLC, 765 F.3d 306,
315 (3d Cir. 2014) (citing Ashcroftv. Iqbal, 556
U.S. 662, 678 (2009) and Twombly, 550 U.S. at 570).
Finally, a plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See
]ohnson v. City of Shelby, U.S., 135 S.Ct. 346, 347
(2014). A complaint may not dismissed for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2)
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief. See
Connelly v. Lane Const. Corp.,809 F.3d 780, 787 (3d
Cir. 2016). Elements are sufficiendy alleged when the facts
in the complaint "show" that the plaintiff is
entided to relief. See Iqbal, 556 U.S. at 679