DuJuan Favors v. Secretary United States Depart, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 6. Favor's motion to expand the record is denied.

Case: 15-2494

Document: 003112700211

Page: 1

Date Filed: 08/14/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2494
___________
DUJUAN T. FAVORS,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;
JOSEPH DALPIAZ, Director Department of Veterans Affairs
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 2-14-cv-06159)
District Judge: Honorable Eduardo C. Robreno
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 14, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: August 14, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 15-2494

Document: 003112700211

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Date Filed: 08/14/2017

Pro se appellant DuJuan Favors appeals the District Court’s order dismissing his
third amended complaint. For the reasons detailed below, we will affirm the District
Court’s judgment.
Favors instituted this action by filing a complaint in the District Court in October
2014. The complaint was terse and conclusory; Favors alleged that he had been
discriminated against, falsely accused, defamed, and wrongly removed from
employment, but provided no facts to buttress his claims. He named as defendants
employees of the United States Department of Veterans Affairs. The District Court
screened the case, dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2) for failure
to state a claim, and granted Favors leave to file an amended complaint. The District
Court specifically instructed Favors that, if he filed an amended complaint, he should
“clearly state all of the facts that give rise to his claims against each defendant.” D.C.
dkt. #2 at pg. 3.
Favors filed an amended complaint. This time, he said that he had been
discriminatorily terminated from his employment, retaliated against, and defamed, but he
again failed to elaborate on these contentions. The District Court dismissed the
complaint pursuant to § 1915(e)(2) for failure to state a claim, but granted leave to file a
second amended complaint. The District Court reiterated that Favors should “clearly
state all of the facts that give rise to his claims against each defendant,” and informed
Favors that “[a]ny second amended complaint shall be a complete document and shall not
rely on other pleadings filed in this case.” D.C. dkt. #6 at pg. 2.
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Favors then filed a second amended complaint. This complaint was the briefest
yet, stating only that Favors retired from the Department of Veterans Affairs in August
2012 for medical reasons, and that in December 2012, he received a separation notice
stating that he had resigned due to criminal misconduct. The District Court dismissed the
complaint under § 1915(e)(2). The Court instructed Favors to set forth the “specific
events that serve as the basis for his claims, the dates on which the events took place, and
how each of the named defendants is involved in his claims.” D.C. dkt. #8 at pg. 2. The
Court also told Favors that, to the extent it would be helpful, he could attach any
administrative charge or complaint he had previously filed. Finally, the Court directed
the clerk to provide Favors with a blank copy of the form complaint.
Favors filed a third amended complaint. He claimed that he had been
discriminated against based on his race in violation of Title VII of the Civil Rights Act.
Moreover, he stated that his employment had been terminated based on five charges of
misconduct, but that he had later been exonerated of each charge. The District Court
ordered that the complaint be served on the defendants, two officials from the
Department of Veterans Affairs. The defendants filed a motion to dismiss under Fed. R.
Civ. P. 12(b)(6). The District Court granted the motion and dismissed the complaint.

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Favors filed a timely notice of appeal to this Court, and also asked the District
Court to reconsider its order under Fed. R. Civ. P. 59(e). The District Court denied the
Rule 59(e) motion.1
We have jurisdiction under 28 U.S.C. § 1291.2 We exercise a plenary standard of
review. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). To survive
a motion to dismiss, a complaint’s “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Initially, the District Court denied the Rule 59(e) motion on the ground that Favors’s
notice of appeal had divested it of jurisdiction. The defendants filed their own motion for
reconsideration, explaining that the District Court maintained jurisdiction to rule on
Favors’s Rule 59(e) motion. The District Court granted the defendant’s motion and
denied Favors’s Rule 59(e) motion on the merits.
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2

The defendants argue that we lack jurisdiction because Favors did not separately appeal
from the District Court’s order that denied his Rule 59(e) motion on the merits. It is true
that, because Favors did not file a new or amended notice of appeal encompassing the
order denying his Rule 59(e) motion, we lack jurisdiction to consider that order. See Fed.
R. App. P. 4(a)(4)(B)(ii); Carrascosa v. McGuire, 520 F.3d 249, 253-54 (3d Cir. 2008).
However, because the District Court denied the Rule 59(e) motion, Favors’s notice of
appeal does provide us with jurisdiction over the earlier dismissal order. See Rule
4(a)(4)(B)(i); cf. 24 James W. Moore, Moore’s Federal Practice § 24.88 (3d ed. 2014)
(“When a district court grants a Rule 59(e) motion to substantively alter or amend a
judgment, a new judgment is entered, and the previous judgment no longer exists.”
(emphasis added)).
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We will affirm the District Court’s judgment.3 In his third amended complaint,
Favors purported to raise a claim of racial discrimination under Title VII. However, even
after receiving multiple opportunities to replead and specific instructions from the
District Court about the type of information to provide, Favors alleged, in total, that his
employment had been terminated based on several charges of misconduct for which a
Magistrate Judge later found him not guilty. He included no allegations whatsoever
linking his termination to his race. These allegations fail to “raise a reasonable
expectation that discovery will reveal evidence that” his race “played either a motivating
or determinative factor” in his termination. Connelly v. Lane Constr. Corp., 809 F.3d
780, 791 (3d Cir. 2016); see generally Wilkerson v. New Media Tech. Charter Sch. Inc.,
522 F.3d 315, 322 (3d Cir. 2008) (“The plausibility paradigm announced in Twombly
applies with equal force to analyzing the adequacy of claims of employment
discrimination.”). Accordingly, as the defendants argued in their motion to dismiss,
Favors failed to state a claim that was plausible on its face.4

3

While the District Court likely erred in granting the motion to dismiss based on
Favors’s failure to respond “without any analysis of whether the complaint failed to state
a claim upon which relief can be granted, as provided in Fed. R. Civ. P. 12(b)(6),”
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991), we may affirm on any
ground apparent in the record, see id.; see also Hughes v. Long, 242 F.3d 121, 122 n.1
(3d Cir. 2001).
4

Because the District Court permitted Favors to amend his complaint on multiple
occasions and provided him with clear guidance as to the information that an amended
complaint should contain, the Court did not abuse its discretion in declining to provide
Favors leave to amend his complaint yet again. See Airborne Beepers & Video, Inc. v.
AT&T Mobility LLC, 499 F.3d 663, 666-67 (7th Cir. 2007).
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Date Filed: 08/14/2017

We will therefore affirm the District Court’s judgment. Favors’s motion to
expand the record is denied. See, e.g., Burton v. Teleflex Inc., 707 F.3d 417, 435 (3d Cir.
2013) (a party may supplement the record on appeal in only “exceptional
circumstances”).

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