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/>/» se and has been granted leave
to proceed in forma pauperis, commenced this action
on October 24, 2016. (D.I. 1) On December 14, 2016, the Court
dismissed Plaintiffs Amended Complaint and he was given leave
to amend. (D.I. 34, 35) Plaintiff filed a Third Amended
Complaint on June 6, 2017, the Court then dismissed Counts II
and III (on November 13, 2017), and Plaintiff was given leave
to amend to cure the pleading deficiencies in Counts II and
III. (D.I. 43, 44) Plaintiff filed a Fourth Amended Complaint
on November 20, 2017. (D.I. 45) The Court has jurisdiction
pursuant to 28 U.S.C. § 1331. The Court proceeds to
review and screen the Fourth 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 Fourth
Amended Complaint consists of 626 paragraphs, names 17
Defendants, and contains three Counts. Named defendants
include the IRS, Department of Treasury employees, and IRS
employees. Throughout "Section IV 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. 45 at ¶¶
55-184) Many of the paragraphs in the "Common
Allegations" section in the Fourth Amended Complaint are
identical to paragraphs in the Third Amended Complaint. The
Court will not distill the allegations in the Fourth Amended
Complaint given their similarity to those set forth in the
Third Amended Complaint.
Fourth 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.I. 45 at ¶¶ 4-7) Count One is
brought against the IRS 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, a hostile work environment,
and retaliation; he has missed educational job opportunities;
and his future earning capacities have been damaged.
(Id. at ¶¶ 160-84) 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.
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 meritless
legal theory" or a "clearly baseless" or
"fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; see also Wilson p.
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 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 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." Bell Atl. Corp. v.
Twombly, 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'l Hosp., 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 Ashcroft v. 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
Johnson v. City of Shelby, ___ U.S. ___, 135 S.Ct.
346, 347 (2014). A complaint may not be 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 sufficiently alleged when the facts
in the complaint "show" that the plaintiff is
entitled to relief. See Iqbal, 556 U.S. at 679