Opinion
Civil Action 2:21-cv-00025
02-17-2021
HERBERT L. JOSEPH, II Plaintiff, v. PLANET FITNESS ASSET CO. LLC, D/B/A Planet Fitness, Defendant.
William S. Stickman District Judge
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDANTION
It is respectfully recommended that Plaintiff's civil action filed pursuant to 42 U.S.C. § 1983 be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted, and without prejudice to filing a Second Amended Complaint to state a claim pursuant to 42 U.S.C. § 1981. Should this Report and Recommendation be adopted by the District Judge, it is recommended that Plaintiff have 30 days after the Memorandum Order is entered to file his Second Amended Complaint as described in the Report and Recommendation.
II. REPORT
A. Procedural History and Facts
Plaintiff, Herbert L. Joseph, II (“Plaintiff”), proceeding pro se, instituted this civil action by filing a Motion for Leave to Proceed in Forma Pauperis on January 7, 2021. ECF No. 1. The Motion was granted on January 8, 2021 (ECF No. 3) and the Complaint was docketed that same day. ECF No. 4. The original Complaint was unclear as to the facts and claims Plaintiff alleges against the named Defendant, Planet Fitness Asset Co., LLC. Consequently, this Court entered a detailed Memorandum Order on January 11, 2021 (ECF No. 5) instructing Plaintiff to amend his Complaint because it was deficient in that it did not comply with the Federal Rules of Civil Procedure, including Rule 8(a). The Court's Order was set out in clear step by step instructions as to what Plaintiff should include in the amended complaint and afforded him until February 11, 2021 to file the amended complaint. The Amended Complaint was filed by the deadline. ECF No. 6.
In the Amended Complaint Plaintiff alleges that, with the assistance of the West Mifflin Police Department, he was evicted by Defendant Planet Fitness from its West Mifflin facility on May 16, 2019. Plaintiff complained about being harassed by another club member while naked in a changing stall. The other club member was of much larger stature than Plaintiff and peered over the stall wall to inquire with Plaintiff as to how much longer he was going to be in the stall. Plaintiff did not respond, but instead made his way to the front desk, half-dressed, to complain. Plaintiff alleges that the Defendant's employee listened but sided with the white patron who was watching and listening nearby. The Defendant's employee then asked the Plaintiff to leave and called the West Mifflin police. The police arrived, listened to Plaintiff's complaint, and indicated that regardless of what had happened, Defendant wanted Plaintiff to leave the premises. Plaintiff's membership was cancelled that same day. ECF No. 6 at 2.
Plaintiff claims that Defendant violated his civil rights pursuant to 42 U.S.C. § 1983 in that he was discriminated against because of his race in that Defendant's employee favored the white patron, who was sexually harassing him, over the Plaintiff.
The Court assumes that Plaintiff is an African American, but Plaintiff does not directly state the same in the Amended Complaint.
B. Legal Standards
The court must liberally construe the factual allegations of Plaintiff's Complaint because pro se pleadings, “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) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, the court should “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)).
This Court must review Plaintiff's Complaint in accordance with the amendments promulgated in the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Although Plaintiff's claims do not appear to arise from an incarceration, the amendments to the PLRA codified as 28 U.S.C. § 1915 apply to non-incarcerated individuals who have been granted in forma pauperis (“IFP”) status. See Powell v. Hoover, 956 F.Supp. 564, 566 (M.D. Pa. 1997) (holding that federal in forma pauperis statute is not limited to prisoner suits); Floyd v. United States Postal Serv., 105 F.3d 274, 276 (6th Cir. 1997) (holding that non-prisoners have the option to proceed in forma pauperis), superseded on other grounds by Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1997). Pursuant to 28 U.S.C. § 1915(a), Plaintiff is eligible for and has been granted leave to proceed in forma pauperis. Thus, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. § 1915(e).
Pertinent to the case at bar is the authority granted to federal courts for the sua sponte dismissal of claims in IFP proceedings. Specifically, § 1915(e), as amended, requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12 (b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). “To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and § 1915(d) both counsel dismissal.” Neitzke, 490 U.S. at 328 (footnote omitted).
In reviewing complaints under 28 U.S.C. § 1915(e), a federal court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester Cnty. Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Here, the Defendant is not a state actor but a private corporation. As noted above, the “under color of law” requirement means that purely private conduct, no matter how discriminatory or wrongful, does not violate § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The United States Supreme Court has repeatedly stated that “state action requires both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,' and that ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.'” Id. at 50 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (emphasis in Sullivan) (other citations omitted)). “Action taken by private entities with the mere approval or acquiescence of the State is not state action.” Sullivan, 526 U.S. at 52 (other citations omitted).
Even if the named Defendant were a state actor, which it is not, there is no respondeat superior liability in § 1983 jurisprudence. That is, Defendant's liability may not be premised on the mere fact that its employee engaged in allegedly illegal conduct. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978).
The Court recognizes that the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint-regardless of whether the plaintiff requests to do so-when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Given this Court's above analysis, while it would be futile to allow Plaintiff to amend his Complaint pursuant to 42 U.S.C. § 1983, he may be able to state a claim pursuant to 42 U.S.C. § 1981. 42 U.S.C. § 1981 provides as follows:
1981. Equal rights under the law
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
A claim under § 1981 is restricted by its language to discrimination based on race or color. Springer v. Seaman, 821 F.2d 871 (1st Cir. 1987) (racial animus is necessary element of claim under § 1981). Accordingly, to state a claim under 42 U.S.C. § 1981, a plaintiff is required to plead facts demonstrating that the plaintiff is member of a racial minority, that there was intent to discriminate on the basis of race by the defendant, and that discrimination concerned one or more of the activities enumerated in the statute. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Imagineering, Inc. v. Kiewit Pac. Co, 976 F.2d 1303, 1313 (9th Cir. 1992) (under § 1981, plaintiff must allege facts that would support an inference that defendant intentionally and purposefully discriminated against him); Hood v. New Jersey Dep't of Civil Serv., 680 F.2d 955, 959 (3d Cir. 1982).
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that Plaintiff's civil action filed pursuant to 42 U.S.C. § 1983 be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted, and without prejudice to filing a Second Amended Complaint to state a claim pursuant to 42 U.S.C. § 1981. Should this Report and Recommendation be adopted by the District Judge, it is recommended that Plaintiff have 30 days after the Memorandum Order is entered to file his Second Amended Complaint as described in the Report and Recommendation.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.