Opinion
Civil Action No. 06-CV-88.
January 17, 2006
MEMORANDUM OPINION
Presently before the Court are plaintiff Wayne Mitchell's ("plaintiff's") motion to proceed in forma pauperis and plaintiff's request for the appointment of an attorney (Doc. No. 1). For the following reasons, this Court grants plaintiff's motion to proceed in forma pauperis; dismisses plaintiff's complaint without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii); and denies plaintiff's request for the appointment of any attorney as moot.
A. Motion to Proceed In Forma Pauperis
There is no financial threshold that a plaintiff must exceed in order to qualify for in forma pauperis status. See 28 U.S.C. § 1915(a)(1). In determining whether to grant plaintiff's in forma puaperis motion pursuant to § 1915(a)(1), courts consider: (1) whether the plaintiff is employed; (2) plaintiff's annual salary; and (3) any other property or assets the plaintiff may possess. See, e.g., Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 339 (1948); Azubuko v. Riordan, 2005 WL 914778, at *1 (D. Del. April 4, 2005).
This Court grants plaintiff's request to proceed in forma pauperis. Plaintiff's statement in support of his motion indicates that plaintiff is presently employed at an annual salary of $40,000. (See Statement, at ¶ 1). However, plaintiff avers that his checking account is limited to $125.00, that his wife is completely dependent on his earnings, that his only possession of value is his automobile, and that he receives no other income outside his annual salary. (Id., at ¶¶ 2-5). Consequently, while plaintiff's salary may be sizable relative to other plaintiffs seeking in forma pauperis status, the Court nonetheless finds that plaintiff does not have the financial means to pay the $250.00 filing fee to commence his civil action.
B. Failure to State a Claim
Although this Court grants plaintiff in forma pauperis status, this Court nonetheless finds that plaintiff's complaint must be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). This statutory provision requires a court to dismiss an in forma pauperis complaint "at any time if the court determines that the action fails to state a claim on which relief may be granted." Id. In determining whether to dismiss a claim pursuant to § 1915(e)(2)(B)(ii), courts apply a liberalized version of the standard of review under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Randall v. City of Philadelphia, 1998 WL 111803, at *1 (E.D. Pa. Feb. 5, 1998) (using Rule 12(b)(6) standard to determine whether plaintiff's claim should be dismissed under 1915(e)(2)(B)(ii)). Under this standard, a court "must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988).
Plaintiff asserts a civil rights claim against his current employer, defendant United States Facilities ("defendant"). Plaintiff's complaint provides one allegation: on April 2, 2003, while plaintiff was entering defendant's facility, he "overheard" a co-worker make a derogatory remark about African-Americans in the presence of other supervisors. (See Compl., at ¶ 3). Although plaintiff's complaint fails to identify both the federal statutory scheme under which plaintiff's claim falls and the particular relief requested, this Court presumes that plaintiff is bringing a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e et seq..
Specifically, plaintiff's co-worker stated: "they are trying to finish this cage, for that baboon." (See Compl., at ¶ 3). No further factual allegations are provided.
The failure to identify the statutory scheme under which plaintiff's claim is brought and the relief requested violates Rule 8(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a) (requiring complaint to contain "short and plaint statement of the grounds upon which the court's jurisdiction depends" and "a demand for judgment for the relief the pleader seeks"). This violation functions as an independent basis for the dismissal of plaintiff's complaint.
Accepting plaintiff's allegations as true, plaintiff's complaint fails to state a cause of action under any Title VII theory. First, plaintiff's complaint fails to allege facts to suggest that the April 2, 2003 remark was part of a pattern of severe or pervasive racial discrimination. See, e.g., Pennsylvania State Police v. Suders, 542 U.S. 129, 133 (2004) (Title VII claim for hostile work environment requires plaintiff to show that intentional discrimination was pervasive and regular); Ocasio v. Lehigh Family Health Center, 92 Fed.Appx. 876, 880 (3d Cir. 2004) (isolated incidents over a long period of time do not constitute hostile work environment); Morgon v. Valenti Mid-Atlantic Mgmt, 2001 WL 1734260, at *3 (E.D. Pa. Dec. 14, 2001) (no regular and pervasive discrimination during plaintiff's one year of employment when plaintiff's co-worker stated that she "hate[d] all n* * * * *s" and when another co-worker stated that she would never hire Jamaicans); James v. Allentown Bus. School, 2003 WL 21652189, at *16-17 (E.D. Pa. June 2, 2003) (no regular and persuasive discrimination when supervisor sends African-American plaintiff picture of Adolf Hitler and racist poem). Nor does plaintiff allege that he experienced an adverse employment action due to the racially discriminatory environment at defendant's facility. See 42 U.S.C. § 2000e-2(a)(1) (Title VII prohibits discrimination in "compensation, terms, conditions, or privileges of employment" based upon race); King v. School District of Philadelphia, 2002 WL 856948, at *4 (E.D. Pa. July 26, 2001) (plaintiff brining intentional employment discrimination suit based upon race must allege adverse employment action). Finally, plaintiff fails to suggest that the defendant retaliated him against for engaging in protected activity, such as filing an EEOC complaint. See, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-1301 (3d Cir. 1997) (plaintiff brining retaliation suit must allege adverse employment action due to protected activity).
Plaintiff's complaint indicates that the comment was not addressed to him, as he "overheard" the remark.
In summary, the allegations in plaintiff's complaint, even when accepted as true, fail to meet the legal standard for a claim under Title VII or any other federal civil rights statute. Accordingly, this Court dismisses plaintiff's complaint without prejudice for failure to state a cause of action pursuant to § 1915(e)(2)(B)(ii).
For instance, to the extent that plaintiff seeks to bring claims for racial discrimination under 28 U.S.C. § 1981, which gives all persons equal rights in the making and enforcement of contracts, the analysis is the same as under Title VII. See, e.g., Verdin v. Weeks Marine Inc., 124 Fed. Appx. 92, 97 (3d Cir. 2005) (noting that § 1981 claims for retaliation and discrimination are analyzed under same standards as Title VII claims and dismissing plaintiff's § 1981 claims for same reasons that plaintiff's Title VII claims failed); Sherrod v. Philadelphia Gas Works, 57 Fed. App. 68, 75 (3d Cir. 2003) (analysis of hostile work environment claims is same under Title VII and § 1981).
C. Motion for Appointment of Attorney
The dismissal of plaintiff's complaint pursuant to § 1915(e)(2)(B)(ii) moots plaintiff's request for this Court to appoint an attorney. An appropriate Order follows
ORDER
AND NOW, this 17th day of January 2006, upon consideration of plaintiff's motion for leave to proceed in forma pauperis and request for appoint of attorney (Doc. No. 1), it is hereby ORDERED as follows:
1. Plaintiff's motion to proceed in forma pauperis is GRANTED.
2. Plaintiff's complaint is dismissed without prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
3. Plaintiff's request for appointment of counsel is DENIED as moot.
4. The Clerk of Court is directed to CLOSE this matter for statistical purposes.