Damon v. D.E.F. Service Group, Ltd.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY A. DAMON, :

Plaintiff : CIVIL ACTION NO. 3:19-986

v. : (JUDGE MANNION)

D.E.F. SERVICE GROUP, INC., :

Defendant :

MEMORANDUM

I. BACKGROUND

Pending before the court is the report and recommendation, (Doc. 13),

Judge Karoline Mehalchick recommending that the second amended

complaint (“SAC”), (Doc. 10), filed by pro se plaintiff Jeffrey A. Damon,1 be

dismissed with prejudice. Judge Mehalchick granted plaintiff’s motion to

proceed in forma pauperis. (Docs. 2, 6). The judge also directed plaintiff to

file two amended complaints, after finding deficiencies with his original and

1Damon filed seven cases. Judge Mehalchick has issued reports in all

of plaintiff’s cases recommending that they be dismissed for failure to state

cognizable claims. See Civil Nos. 19-979, 19-986, 19-987, 19-1126, 19-

1127, 19-1128 & 19-1129. Damon was forewarned by this court that if he

continues to file cases that fail to state a valid claim and seeks to proceed in

forma pauperis, the court will issue an order directing him to show cause why

he should not be subjected to a pre-filing injunction in this court that “prevents

him from filing any new civil non-habeas cases on an in forma pauperis

basis.” See Brett v. Moller, 2019 WL 5540455 (E.D.Pa. Oct. 24, 2019).

amended complaints, (Docs. 7 & 9), and then screened plaintiff’s SAC under

28 U.S.C. §1915.2 The judge found that the SAC should be dismissed for

failure to state a proper claim under Fed.R.Civ.P. 8(a) despite her Orders

directing plaintiff to amend his pleadings to properly state a claim.3 See

Brett, 2019 WL 5540455, *4 (“a complaint may be dismissed for failing to

comply with Federal Rule of Civil Procedure 8.”) (citation omitted).

The court has reviewed plaintiff’s SAC and finds that the report

correctly concludes that plaintiff fails to state an actionable claim under Title

VII of the Civil Rights Act of 1964 alleging employment discrimination for

failure to hire. (Doc. 13 at 1-3, 6). The court will not rehash the report’s sound

reasoning. Damon has failed to file an amended complaint and a second

amended complaint that comply with the Rule 8 pleading standards and he

has repeatedly failed to state a cognizable employment discrimination claim

2Section 1915 of the United States Code, 28 U.S.C. §1915, requires

the court to dismiss a plaintiff’s case if, at any time, the court determines that

the action is, “frivolous or malicious” or “fails to state a claim on which relief

may be granted.” §1915(e)(2)(B). See McCain v. Episcopal Hosp., 350

Fed.Appx. 602, 604 (3d Cir. 2009) (Section 1915(e)(2) applies to all in forma

pauperis complaints, and not just to prisoners); Grayson v. Mayview State

Hosp., 293 F3d 103, 110 n. 10 (3d Cir. 2002).

3Since Judge Mehalchick states the correct pleading standard and the

correct standard regarding a motion to dismiss under Fed.R.Civ.P. 12(b)(6),

they will not be repeated. “Whether a complaint fails to state a claim under

§1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to

dismiss under Federal Rule of Civil Procedure 12(b)(6).” Brett v. Moller, 2019

WL 5540455, *4 (E.D.Pa. Oct. 24, 2019).

for failure to hire under Title VII, as the report explains, (Id.), despite being

given ample opportunities to do so.

Therefore, having reviewed the Report of Judge Mehalchick, the court

agrees with the sound reasoning which led her to her recommendation. As

such, the court adopts the Report as the opinion of the court.

To date, the plaintiff has not filed objections to the report and

recommendation and the time within which they were due has expired.4

After having reviewed the record, the court will ADOPT the report and

recommendation. The plaintiff’s SAC will be DISMISSED WITH

PREJUDICE since the court finds futility in allowing the plaintiff a third

opportunity to file a proper pleading. See Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) ( “[I]n civil rights

cases district courts must offer amendment—irrespective of whether it is

4On April 20, 2020, Damon filed in all of his pending cases a letter to

the court indicating that he received the court’s correspondence (clearly

referring to the reports based on their dates) and, he alleges that someone

entered his home and tampered with his hand-written documents that “may

be related to [his] cases.” Damon states that he was almost ready to mail out

his documents to the “State of Connecticut Dep[t]. of Banking.” He also

alleges that his mail was tampered with and he fears what will happen if the

information in his missing documents “gets out to the wrong people.” Damon

states that he has notified the police and he asks the court for federal

protection until his cases are finished. (Doc. 14).

The court does not consider Damon’s letter to be objections to the

instant report, or to the reports filed in any of his other seven cases, as it

does not address any of the reasons why the judge finds that his cases

should be dismissed.

requested—when dismissing a case for failure to state a claim unless doing

so would be inequitable or futile.”); Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002). Further, this case will be CLOSED.

II. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499

(M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

With respect to the portions of a report and recommendation to which

no objections are made, the court should, as a matter of good practice,

“satisfy itself that there is no clear error on the face of the record in order to

accept the recommendation.” Fed. R. Civ. P. 72(b), advisory committee

notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d

465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878

(3d Cir. 1987) (explaining judges should give some review to every report

and recommendation)). Nevertheless, whether timely objections are made

or not, the district court may accept, not accept, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge. 28

U.S.C. §636(b)(1); Local Rule 72.31.

III. CONCLUSION

Based on the foregoing, the report and recommendation of Judge

Mehalchick, (Doc. 13), is ADOPTED IN ITS ENTIRETY, and plaintiff’s

second amended complaint, (Doc. 10), is DISMISSED WITH PREJUDICE.

The plaintiff’s case will be CLOSED.

A separate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: May 12, 2020

19-986-01