TAYLOR v. JACKSON

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRIAN L. TAYLOR,

Civil Action No. 19-16815

Plaintiff, (JMV)(JAD)

v.

SHAWNDALE JACKSON, et al., OPINION & ORDER

Defendants.

John Michael Vazquez, U.S.D.J.

Plaintiff Brian L. Taylor brings the above-captioned action in forma pauperis pursuant to

28 U.S.C. § 1915. D.E. 1-1. For the reasons discussed below, the Court grants Plaintiffs

application to proceed in forma pauperis, but dismisses Plaintiff's Complaint, D.E. 1, (“Compl.”)

pursuant to 28 U.S.C. § 1915{e)(2)(B)Gii).

Under Section 1915, this Court may excuse a litigant from prepayment of fees when the

litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express

Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Plaintiffhas sufficiently established his inability

to pay for the costs of his suit and the Court grants Plaintiffs motion to proceed in forma pauperis

without prepayment of fees or costs.

When allowing a plaintiff to proceed in forma pauperis, a court must review the complaint

and dismiss the action if it (i) is frivolous or malicious, (ii) fails to state a claim upon which relief

may be granted, or (iii) seeks monetary relief against a defendant who is immune. 28 U.S.C. §

1915(e)(2)(B). When considering dismissal under Section 1915(e)(2)(B)(ii) for failure to state a

claim upon which relief can be granted, the Court must apply the same standard of review as that

for dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6). Schreane v. Seana,

506 F. App’x 120, 122 (3d Cir. 2012).

To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must contain

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009). Although the plausibility standard “does

not impose a probability requirement, it does require a pleading to show more than a sheer

possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780,

786 (3d Cir, 2016) (internal quotation marks and citations omitted). As a result, a plaintiff must

“allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her

claims.” Jd. at 789. In other words, although a plaintiff need not plead detailed factual allegations,

“a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atl, Corp., 550 U.S. at 555 (internal quotations omitted).

Moreover, because Plaintiff is proceeding pro se, the Court construes the Complaint

liberally and holds it to a less stringent standard than papers filed by attorneys. Haines v. Kerner,

404 U.S. 519, 520 (1972). The Court, however, need not “credit a pro se plaintiff's ‘bald

assertions’ or ‘legal conclusions.” Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013)

(quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

I. LAW AND ANALYSIS

Plaintiff sued Shawndale Jackson,' Tracey George,” and Jeff Ackerman? (collectively,

“Defendants”), alleging that he was subject to various “civil rights violations.” Compl. at 2. In

support of this contention, Plaintiff appears to make the following claims: (1) that Defendant

Jackson violated the Americans with Disabilities Act (“ADA”) by terminating his employment

after Plaintiff admittedly threatened his coworker; (2) that Defendant Jackson violated the Fair

Labor Standards Act (“FLSA”) for “failing to pay [Plaintiff] a more comparable minimum wage

as compared to [Plaintiffs] other [p]art-[t]ime [j]ob”; (3) that Defendant Jackson violated the

Family and Medical Leave Act (“FMLA”) when he “did not attempt to probe further into the nature

of why [Plaintiff] felt the need to threaten [his coworker] and conclude that [leave under the

FMLA] may have been a more prudent solution rather than [terminating Plaintiff]”; and (4) that

Defendants Jackson and George committed perjury “during a telephonic Department of Labor

Appeals Hearing” regarding Plaintiff's termination, Jd. at 7.

1. Americans with Disabilities Act

To establish a prima face case of discrimination under the ADA, a plaintiff must establish

that “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to

perform the essential functions of the job, with or without reasonable accommodations by the

employer; and (3) he has suffered an otherwise adverse employment decision as a result of

discrimination.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (internal

quotation and citation omitted). Here, Plaintiff alleges that after witnessing one of his coworkers

! Defendant Jackson is alleged to be Plaintiff’s “Store Manager” at Wilsons Leather. Compl. at 6.

* Defendant George is alleged to be Wilsons Leather’s “Legal Representative.” Id. at 7.

3 No allegations appear to be asserted against Defendant Ackerman.

“crying uncontrollably,” Plaintiff confronted another coworker and threatened to “slam [him] on

his [expletive] neck” if he “had anything to do with the reason for [the crying coworker’s]

behavior.” Jd. at 6-7. Defendant Jackson, who apparently witnessed this exchange, then instructed

Plaintiff to “clock-out” and leave the store, to which Plaintiff complied. /d. at 7. The next day,

Defendant Jackson terminated Plaintiff's employment. /d. While Plaintiff alleges that he “suffers

legally and clinically from Bi-Polar Disorder and Paranoid Schizophrenia,” Plaintiff fails to

sufficiently plead any factual allegations showing that Defendant Jackson terminated Plaintiff as

a result of discrimination or based on his disability. Accordingly, Plaintiff fails to state a claim

against Defendant Jackson under the ADA.

2. Fair Labor Standards Act

The FLSA provides that all employees must be paid a minimum wage of $7.25 per hour,

unless one of the Act’s exceptions applies. 29 U.S.C. § 206(a). Employees who work more than

forty hours per week must be compensated for those extra hours “at a rate not less than one and

one-half times the regular rate at which he is employed.” /d. at § 207(a)(1). “Thus, to recover

overtime compensation under the FLSA, ‘an employee must prove that he worked overtime hours

without compensation, and he must show the amount and extent of his overtime work as a matter

of just and reasonable inference.” Davis v. Abington Mem’! Hosp., 765 F.3d 236, 241 (3d Cir.

2014) (quoting Davis vy, Food Lion, 792 F.2d 1274, 1276 (4th Cir.1986)).

Here, Plaintiff contends that Defendant Jackson violated the FLSA on two occasions by

“failing to pay [Plaintiff] a more comparable minimum wage as compared to [Plaintiffs] other

[plart-[t]ime [j]ob at [Costco].” Compl. at 7. However, Plaintiff does not allege that he was paid

less than the statutorily required minimum wage nor that he is entitled to unpaid overtime

compensation. Accordingly, Plaintiff fails to sufficiently state a claim against Defendant Jackson

under the FLSA.

3, Family and Medical Leave Act

“There are two types of claims an employee can bring against an employer under the

FMLA: (1) interference claims . . . pursuant to 29 U.S.C. § 2615(a)(1); and (2) retaliation claims

... pursuant to 29 U.S.C. § 2615(a)(2).” Grosso v. Fed. Exp. Corp., 467 F. Supp. 2d 449, 457-58

(E.D. Pa. 2006). “To state a claim of interference under [the FMLA], an ‘employee only needs to

show that he was entitled to benefits under the FMLA and that he was denied them.” /d. at 462

(quoting Callison v, City of Philadelphia, 430 F.3d 117, 119 (Gd Cir.2005)). “To prevail on a

retaliation claim under the FMLA, the plaintiff must prove that (1) [he] invoked [his] right to

FMLA-qualifying leave, (2) [he] suffered an adverse employment decision, and (3) the adverse

action was causally related to [his] invocation of rights.” Lichtenstein v. U. of Pittsburgh Med.

Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012). “To invoke rights under the FMLA, employees must

provide adequate notice to their employer about their need to take leave.” /d. at 303 (citing 29

U.S.C. § 2612(e)(2)).

Here, Plaintiff contends that Defendant Jackson violated the FMLA because he “did not

attempt to probe further into the nature of why [Plaintiff] felt the need to threaten [his coworker]

and conclude that [leave under the FMLA] may have been a more prudent solution rather than

[terminating Plaintiffs employment].” Compl. at 7. However, Plaintiff does not allege that he

was entitled to FMLA leave, that he invoked his rights under the FMLA, or — assuming Plaintiff

did invoke his rights — that he suffered an adverse employment decision as a result of his invocation

of rights under the FMLA. Indeed, Plaintiff fails to set forth any factual allegations to support

either an interference claim or retaliation claim under the FMLA. Accordingly, Plaintiff fails to

state a claim against Defendant Jackson under the FMLA.

4. Perjury

“There is no private right of action under either the federal or the New Jersey perjury

statutes.” See Ali v. Person, 904 F. Supp. 375, 377 n.1 (D.N.J. 1995); see also Howard v, Paye,

188 F. Supp. 3d 496, 499 (E.D. Pa. 2016) (explaining that plaintiff “cannot state a claim [for

perjury] under 18 U.S.C. § 1621 because that federal criminal statute does not give rise to civil

liability”); see also Miller v. Cuneo, No. 11-124, 2012 WL 333835, at *3 (W.D. Pa. Feb. 1, 2012)

(explaining that the federal perjury statute “[does not] provide[] a private right of action under

which [p]laintiff may sue for monetary damages”). Accordingly, Plaintiff fails to state a claim

against Defendants Jackson and George for perjury.

I. CONCLUSION

In sum, Plaintiff fails to sufficiently plead any factual allegations that support his claims.

Accordingly, the Court dismisses Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

When dismissing a case brought by a pro se plaintiff, a court must decide whether the dismissal

will be with prejudice or without prejudice, the latter of which affords a plaintiff with leave to

amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002). The district court

may deny leave to amend only if (a) the moving party’s delay in seeking amendment is undue,

motivated by bad faith, or prejudicial to the non-moving party or (b) the amendment would be

futile, Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). Given Plaintiff's allegations, it

appears that any attempt at amendment would be futile. However, because Plaintiff is proceeding

pro se and this is the Court’s initial screening, the Court will provide Plaintiff with one additional

opportunity to file an amended complaint. Therefore, the Court provides Plaintiff thirty (30) days

to file an amended complaint that cures the deficiencies set forth herein.

If Plaintiff is proceeding pursuant to a legal theory other than those discussed herein, he

must set forth the basis for his claim and provide plausible factual allegations to support the claim.

If Plaintiff does not submit an amended complaint curing these deficiencies within thirty (30) days,

the dismissal will then be with prejudice.*

For the foregoing reasons, and for good cause shown,

IT IS on this 2° day of Corvolve, 2019,

ORDERED that Plaintiff's application to proceed in forma pauperis is GRANTED; and

it is further

ORDERED that the Clerk of the Court is directed to file the Complaint without

prepayment of the filing fee; and it is further

ORDERED that Plaintiff's Complaint is DISMISSED without prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)Gi); and it is further

ORDERED that Plaintiff may file an amended complaint within thirty (30) days of receipt

of this Opinion and Order, curing the deficiencies noted herein. If Plaintiff fails to file an amended

complaint within thirty (30) days of receipt, dismissal of this case shall be with prejudice. In

addition, if Plaintiff files an amended complaint but it is still deficient, this case will be dismissed

with prejudice; and it is further

4 A dismissal with prejudice means that Plaintiff will not be able to bring any future action against

Defendants based on the allegations in the case.

ORDERED that the Clerk of the Court shall serve this Opinion and Order upon Plaintiff

by regular and certified mail return receipt.

JOHN MICHAELWAZQUEZ, U.S.D.J.