United States District Court, D. Delaware
Thompson-El, Wilmington, Delaware. Pro Se Plaintiff.
ANDREWS, U.S., District Judge.
Ricky Thompson-El appears pro se and has been
granted leave to proceed in forma pauperis. He
commenced this employment discrimination action on September
13, 2018. (D.I. 1). The Court proceeds to screen the
Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
was employed by Defendant Greater Dover Boys and Girls Club.
He was hired as a lifeguard effective August 12, 2014, and
terminated effective June 17, 2017. (D.I. 1-1). Plaintiff
alleges he was discriminated against by reason of age when he
was terminated. The claim arises under the Age Discrimination
in Employment Act, 29 U.S.C. § 621, et
seq. The Delaware Department of Labor issued a right
to sue notice on June 22, 2018. (Id.).
as defendants are Plaintiffs former employer Greater Dover
Boys and Girls Club, and individual defendants Chris Basher,
Robin Roberts, and Trish Moses. (D.I. 1 at 1-3). Plaintiff
asks for the right to face his accuser. The Complaint does
not contain a prayer for relief.
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. Phillips v. County of Allegheny,
515 F.3d 224, 229 (3d Cir. 2008).
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 U.S. at 327-28; 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 ruling on Rule
12(b)(6) motions. Tourscherv. McCullough, 184 F.3d
236, 240 (3d Cir. 1999). 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 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).
proceeds pro se and, therefore, his pleading is
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). "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) (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, 135 S.Ct. 346, 347 (2014). A complaint
may not be 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 are therefore 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).
is no individual liability under the ADEA. See Muhammad
v. Sills Cummis & Gross P.C.,621 Fed.Appx. 96, 98
(3d Cir. 2015) ("As a matter of law, the ADEA does not
provide for individual liability."). Accordingly, the
Court will dismiss the claims ...