The opinion
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GREGORY L. BASS,
Plaintiff Civil Action No. 19-17077
v. OPINION & ORDER
DARRYL HOWARD, MR. JOE M., MARK
GUCIA, and MR. BOLGER
Defendants.
John Michael Vazquez, U.S.D.J.
Plaintiff Gregory L. Bass (‘Plaintiff’) seeks to bring this action in forma pauperis pursuant
to 28 U.S.C. § 1915. D.E. 1. For the reasons discussed below, the Court GRANTS Plaintiff's
application to proceed in forma pauperis, but DISMISSES Plaintiffs Complaint (D.E. 1)
(“Compl.”) pursuant to 28 U.S.C. § 1915(e)(2)(B)(Gi).
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a resident of New Jersey. Compl. at 1. The Complaint alleges that all
Defendants are New Jersey citizens. Id. at 2.
Plaintiffs Complaint, which is handwritten, is difficult to decipher at points. Plaintiff
states that the events giving rise to the claim occurred at Stop & Shop on 8 Franklin Street,
Bloomfield, NJ 07003 (“Stop & Shop”). /d. at 3. Plaintiff alleges “I was terminated I was black
man.” Jd. at 3. Plaintiff does not explain his relation to each Defendant, but it seems that
Defendants Darryl,' Joe M., Gucia, and Bulger are likely employees or employers of Stop & Shop
based on the fact that each Defendant’s alleged address is that of Stop & Shop. /d. at 2-3. Plaintiff
claims all four Defendants “discriminated against me.” Jd. Plaintiff appears to claim that he has
text messages that are proof of his wrongful termination claim, but Plaintiff does not explain what
those text messages state or who they are from. Jd. at 4.
A clearer picture is obtained when looking at Plaintiff's Equal Employment Opportunity
Commission (“EEOC”) Charge of Discrimination form, which Plaintiff includes at the end of the
Complaint. /d. at 6.2 In the EEOC Charge of Discrimination form, Plaintiff states that he was an
employee in Stop & Shop’s meat department. /d. Plaintiff alleges that he was the only African-
American employee in the department. /d. Plaintiff claims that other employees were provided
training, but that Plaintiff was “not provided the training to successfully complete [his] job.” Jd.
Plaintiff alleges that he “was assigned the less desirable tasks when other were not” and “was given
less hours than other employees of a different race.” /d. Plaintiff alleges that he complained, but
his complaints “went unanswered” and he was “terminated shortly after.” fd. Believing that he
was discriminated against based on his “race and color,” Plaintiff filed a Charge of Discrimination
with the EEOC on April 10, 2019. 7d.
! On the first page of the Complaint in the case’s caption, Plaintiff refers to this Defendant as
“Darryl Howard.” /d. at 1. However, throughout the rest of the Complaint, Plaintiff repeatedly
refers to the Defendant as “Howard Darryl.” /d. at 2-4. The Court refers to the Defendant as
‘Howard Darryl.”
* When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the
complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Additionally, a district
court may consider “exhibits attached to the complaint and matters of public record” as well as
“an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss
if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Plaintiff filed this Complaint on August 21, 2019 seeking $50,000 in damages. Jd. at 4.
IL. LEGAL STANDARDS
A. 28 U.S.C. § 1915
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). Plaintiff sufficiently established his inability to
pay for the costs of his suit and the Court grants Plaintiff's motion to proceed in forma pauperis
without prepayment of fees and costs. See Compl., D.E. 1-1.
However, when allowing a plaintiff to proceed in forma pauperis, the Court must review
the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C. § 1915(e)(2). When considering dismissal under § 1915(e)(2)(B)(ii) for
failure to state a claim on 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. Igbal, 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).
In addition, because Plaintiff is proceeding pro se, the Court construes the pleadings
liberally and holds them to a less stringent standard than those filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972). “The Court need not, however, credit a pro se plaintiffs ‘bald
assertions’ or ‘legal conclusions.”” D'Agostino v. CECOM RDEC, No. 10-4558, 2010 WL
3719623, at *1 (D.N.J. Sept. 14, 2010) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
906 (3d Cir. 1997)).
il. LEGAL ANALYSIS
At the outset, the Court construes Plaintiff's Complaint liberally in regard to subject matter
jurisdiction. “In order to establish a basis for subject matter jurisdiction in federal court, a
plaintiff's claims must establish either federal question jurisdiction under 28 U.S.C. § 1331, or
diversity jurisdiction under 28 U.S.C. § 1332. Gencarelli v. New Jersey Dep't of Labor &
Workforce Dev., No. 15-3405, 2015 WL 5455867, at *1 (D.N.J, Sept. 16, 2015) (citing Hines v.
Irvington Counseling Ctr., 933 F. Supp. 382, 387 (D.N.J. 1996)). The burden is on the Plaintiff to
prove the Court has jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir.
2000), holding modified by Simon v. United States, 341 F.3d 193 (d Cir. 2003).
Plaintiff states that his claims are brought pursuant to diversity jurisdiction. Compl. at 2.
As noted, Plaintiff bears the burden of proving diversity jurisdiction, which requires proof of the
parties’ diversity of citizenship as well as the existence of a matter in controversy exceeding the
value of $ 75,000. McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006) (citing
28 U.S.C. § 1332). Diversity of citizenship is present when a citizen of one state brings an action
against Defendants who are all citizens of a different state. See 28 U.S.C. § 1332. Plaintiff alleges
that he is a New Jersey citizen and that Defendants are New Jersey citizens. Thus, there is no
diversity of citizenship. Moreover, Plaintiff seeks $50,000 in damages. Compl. at 4. To maintain
a diversity jurisdiction the amount in controversy must exceed $75,000. Thus, Plaintiff also does
not meet the amount in controversy threshold.
Plaintiff does not allege federal question jurisdiction in the body of the Complaint.
However, reading the Complaint liberally and taking Plaintiff's EEOC Charge of Discrimination
into account, the Court finds that Plaintiff is likely seeking to bring an employment discrimination
claim under Title VII of the 1964 Civil Rights Act (“Title VII”). See Compl. at 6 (“I believe I
have been discriminated against based on my race and color, in violation of Title VII Civil Rights
Act of 1964, as amended.”). While the Court will not dismiss Plaintiff's Complaint based on lack
of subject matter jurisdiction, if Plaintiff chooses to file an amended complaint, Plaintiff must
clearly allege the basis for the Court’s subject matter jurisdiction.
Assuming Plaintiff intends to assert a federal question pursuant to Title VII, he must allege
a prima facie claim of discrimination under Title VII. “Title VII protects all employees of and
applicants for employment with a covered employer, employment agency, labor organization, or
training program against discrimination based on race, color, religion, sex, or national origin.”
Gen. Tel. Co. of the Nw. v. Equal Employment Opportunity Comm'n, 446 U.S. 318, 323 (1980).
Thus, Title VII prohibits employers from wrongfully discriminating against their employees. See
42 U.S.C. § 2000e-2.
To allege a Title VII prima facie claim, a plaintiff must show that (1) he belongs to a
protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment
action despite being qualified; and (4) under circumstances that raise an inference of
discriminatory action, the employer continued to seek out individuals with qualifications similar
to the plaintiff's to fill the position. Barrentine v. New Jersey Transit, 44 F. Supp. 3d 530, 538
(D.N.J. 2014) (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 3d Cir. 2003) (citations
omitted)), Plaintiff indicates that he is African American and that he suffered an adverse
employment action in that he was fired. But he fails to sufficiently plead any factual allegations
that that he was qualified for the position or that the employer continued to seek out individuals
with qualifications similar to Plaintiffs to fill the position under circumstances that raise an
inference of discriminatory action. Compl. at 3. As the Complaint stands, Plaintiff's allegations
fail to plausibly state a claim against Defendants under Title VII. If Plaintiff chooses to file an
amended complaint, Plaintiff is directed to address the foregoing deficiencies to sufficiently allege
a Title VII claim. 44 F. Supp. 3d 530, 538.
Moreover, a plaintiff alleging a violation of Title VII must exhaust the administrative
remedies available through the EEOC before bringing a claim in court. 42 U.S.C. § 2000e~5(e);
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Plaintiff attaches his Charge
of Discrimination form but does not attach a right to sue letter from the EEOC. Without a right to
sue letter, it is not clear to the Court whether Plaintiff has exhausted his administrative remedies.
If Plaintiff chooses to file an amended complaint and has received a right to sue letter, Plaintiff
must include the letter in his amended complaint.
Additionally, the Complaint contains defects regarding group pleading. Mere “conclusory
allegations against defendants as a group” which “fail to allege the personal involvement of any
defendant” are insufficient to survive a motion to dismiss. Galicki v. New Jersey, No. 14-169,
2015 WL 3970297, at *2 (D.N.J. June 29, 2015). A plaintiff must allege facts that “establish each
individual [dJefendant’s liability for the misconduct alleged.” Jd, When a number of defendants
are named in a complaint, plaintiff cannot refer to all defendants “who occupied different positions
and presumably had distinct roles in the alleged misconduct” without specifying “which
defendants engaged in what wrongful conduct.” Falat v. County of Hunterdon, No. 12-6804, 2013
WL 1163751, at *3 (D.N.J. Mar. 19, 2013) (emphasis in original). A complaint that contains
“impermissibly vague group pleading” will be dismissed. /d, at *11. Here, Plaintiff names several
Defendants but only discusses Darryl’s individual actions in any detail. Thus, Plaintiff fails to
specifically establish each individual Defendant’s actions that contributed to the alleged violations.
For the foregoing reasons, Plaintiff fails to plausibly plead a cause of action, and his
Complaint is dismissed 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). 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 the one 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. A dismissal with prejudice means that Plaintiff will be
precluded from filing any future suit against any present Defendant, conceming the allegations in
the Complaint.
Thus, for the reasons set forth above and for good cause shown,
IT IS on this 14th day of November, 2019,
ORDERED that Plaintiff's application to proceed in forma pauperis is GRANTED; and
it is further
ORDERED that the Complaint, D.E. 1, is DISMISSED without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(i1) for failure to state a claim; and it is further
ORDERED that Plaintiff may file an amended complaint within THIRTY (0) 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
ORDERED that the Clerk shall serve this Opinion and Order upon Plaintiff by certified
mail return receipt.
2 8 OA ao
JOHN‘MICHAEL VAZQURZ, U.S.D.J.
+ Dismissal with prejudice means that Plaintiff will not be able to bring any future action against
Defendants based on the allegations in this case.