Opinion
Civil Action No. 20-287
04-13-2020
DAIJON MCCALL Plaintiff, v. DEBORAH KANE, et al., Defendants.
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Court dismiss Plaintiff's Complaint under the screening provisions of 28 U.S.C. § 1915.
II. Report
A. Procedural Background
Plaintiff Daijon McCall commenced this pro se in forma pauperis ("IFP") lawsuit in which he appears to be alleging that the Equal Employment Opportunity Commission ("EEOC") mishandled the charge that he filed against his former employer, McDonald's. Named as Defendants are the EEOC Pittsburgh, and the following employees of the EEOC: Director Deborah Kane, Supervisors Gregory Nanney and Marlea J. Applegate, and Investigator Juanita J. Barber (collectively referred to as "Defendants"). Plaintiff was granted IFP status on March 6, 2020, (ECF No. 4), and his Complaint was docketed on March 10, 2020. (ECF No. 6.)
Because Plaintiff has been granted IFP status, the screening provisions of 28 U.S.C. § 1915 apply. See Grayson v. Mayview State Hosp., 293 F.3d 103, 113 (3d Cir. 2002) ("[N]on-prisoner indigent plaintiffs . . . [are] clearly within the scope of § 1915(e)(2)."). Accordingly, the Court must determine whether the Complaint should be dismissed under those provisions.
B. Legal Standard
Section 1915 permits courts to screen an IFP complaint and dismiss the action before the complaint is served if the complaint fails to state a claim or is frivolous or malicious. See Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). In screening complaints under § 1915, courts utilize the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). D'Agostino v. CECOM RDEC, 436 F. App'x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
A complaint is susceptible to dismissal if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint must be dismissed under Rule 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). The court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
As Plaintiff is proceeding pro se, the Court construes his factual allegations liberally. See Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) ("The obligation to liberally construe a pro se litigant's pleadings is well-established.").
C. Plaintiff's Allegations
Plaintiff invokes this Court's subject-matter jurisdiction under federal question jurisdiction but does not identify any federal statute or constitutional provision that he claims to be implicated in this case. (Compl. at 3.) He alleges that McDonald's fired him "over the phone" and that he was "sexually harassed." (Id. at 4.) He claims that the EEOC let McDonald's "take over a year to respond" to his complaint (Id.) McDonald's allegedly deleted his "time cards" and told the EEOC that he "never worked for them." (Id.) Plaintiff further alleges that an EEOC "investigator tried to conduct mediation over e-mail." (Id.) He also claims that he told "the director[] and [that] supervisors [were] overlooking evidence as well." (Id.) Plaintiff seeks $ 500 million in punitive damages. (Id.)
D. Discussion
Plaintiff's allegations against Defendants appear to be based on his dissatisfaction with the way his EEOC complaint was handled. It is well established, however, that "Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC's alleged negligence or other malfeasance in processing [a complaint]." Ponton v. AFSCME, AFL-CIO, 395 F. App'x 867 872 (3d Cir. 2010) (quoting Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997)). The Third Circuit Court of Appeals has explained that "[t]he proper course of action for a plaintiff who contends that his [EEOC] complaint has been mishandled is to bring a lawsuit against his employer." Miller v. EEOC, Pittsburgh Area Office, 601 F. App'x 80, 81 (3d Cir. 2015) (citing Jordan v. Summers, 205 F.3d 337, 342 (7th Cir.2000)).
Accordingly, Plaintiff's Complaint must be dismissed under the screening provisions of § 1915 because it "fails to state a claim on which relief may be granted" 28 U.S.C. § 1915(e)(2)(B)(ii).
E. Futility of Amendment
When dismissing a civil rights case for failure to state a claim, a court must give a plaintiff the opportunity to amend a deficient complaint, regardless of whether the plaintiff requests to do so, unless doing so would be inequitable or futile. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). "An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted." Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (citation omitted). Here, leave to amend would be futile because "no cause of action against the EEOC exists for challenges to its processing of a claim." Miller, 601 F. App'x at 81 (3d Cir. 2015) (quoting Scheerer v. Rose State Coll., 950 F.2d 661, 663 (10th Cir.1991)).
F. Conclusion
Based on the foregoing, it is respectfully recommended that the Court dismiss with prejudice Plaintiff's Complaint under the screening provisions of 28 U.S.C. § 1915.
G. Notice
In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed. R. Civ. P. 72(b)(2), Plaintiff is allowed fourteen (14) days from the date of service to file written objections to this Report and Recommendation. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F. 3d 187, 193 n.7 (3d Cir. 2011).
Respectfully submitted,
/s/_________
PATRICIA L. DODGE
United States Magistrate Judge Dated: April 13, 2020
See 28 U.S.C. § 1915(e)(2)(B) ("[T]he court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").