Ware v. Transport Drivers Inc. et al

Filing 29

MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 12/3/14. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANTHONY L. WARE,

)

)

)

Plaintiff,

)

v.

) Civ. No. 12-830-SLR
)

TRANSPORT DRIVERS, INC., et aI.,

)
)

Defendants.

)

Anthony L. Ware, Wilmington, Delaware. Pro se Plaintiff.
Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware. Co nsel for
Defendants.

MEMORANDUM OPINION

Dated: December.?J ,2014
Wilmington, Delaware

I. INTRODUCTION
Plaintiff Anthony Ware ("plaintiff') proceeds pro se and has been granted leave to
proceed in forma pauperis. He filed this lawsuit on June 28, 2012 alleging elT/ployment
discrimination and retaliation by reason of race, color, and sex. (0.1. 2) Pres ntly
before the court is defendants' motion to dismiss the amended complaint. (0 I. 23) The
court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reason ,the court
will grant defendants' motion.

II. PROCEDURAL AND FACTUAL BACKGROUND
On March 19,2014, the court dismissed all claims raised in the origina complaint
and gave plaintiff leave to amend. Plaintiff filed an amended complaint on April 21,
2014 (0.1. 22) that is identical to the original complaint except that it adds Co nt III and
includes 89 pages of exhibits, none of which are referred to in the amended c mplaint.
The court's memorandum opinion at 0.1. 20 sets forth the allegations containJd in the
original complaint and, therefore, there is no need to again recite them. Newly added
Count III invokes 42 U.S.C. § 1983 and alleges that defendants violated plaintiff's right
to due process and "maintained a policy of practice and/or custom of discrimi~ation
I

retaliation" against plaintiff "for the attempt[] to exercise ... his right to free spleech and
property interest." (0.1. 22,1'[67)
Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the
grounds that the amended complaint: (1) is identical to the complaint and mlllst be
dismissed as provided in the March 19, 2014 order; and (2) fails to state a cia m under
any other legal theory. In the alternative, defendants contend that plaintiff sh uld

provide a more de'finite statement pursuant to Fed. R. Civ. P. 12(e). Plaintiff opposes
the motion.

III. LEGAL STANDARDS
In reviewing a motion filed under Fed. R. Civ. P. 12(b)(6), the court mu t accept
all factual allegations in a complaint as true and take them in the light most fa orable to
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). A court may consi er the
pleadings, public record, orders, exhibits attached to the complaint, and docLi
incorporated into the complaint by reference. Tellabs, Inc. v. Makar Issues &

ights,

Ltd., 551 U.S. 308, 322 (2007). A complaint must contain "a short and plain tatement

of the claim showing that the pleader is entitled to relief, in order to give the d
fair notice of what the ... claim is and the grounds upon which it rests." Bell

v. Twombly, 550 U.S. 544, 545 (2007) (internal quotation marks omitted) (interpreting
Fed. R. Civ. P. 8(a». A complaint does not need detailed factual allegations; owever,
"a plaintiff"s obligation to provide the 'grounds' of his entitle[ment] to relief

req~ires more

than labels and conclusions, and a formulaic recitation of the elements of a

c~use of

action will not do." Id. at 545 (alteration in original) (citation omitted). The "[f]actual
allegations must be enough to raise a right to relief above the speculative levEtI on the
assumption that all of the complaint's allegations are true." Id. Furthermore, 'i[W]hen
there are well-ple[d] factual allegations, a court should assume their veracity Jnd then
determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal,
556 U.S. 662, 664 (2009). Such a determination is a context specific task requiring the
court "to draw on its judicial experience and common sense." Id.

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IV. DISCUSSION
As set forth in the March 19, 2014 memorandum opinion and order, to he extent
that plaintiff asserts a private cause of action under Federal Motor Carrier Sa ty
Regulations or the Federal Motor Carrier Safety Act, the claims fail. See Ups omb v.
Zurich Am. Ins. Co., 2012 WL 1902595 (E.D. La. 2002) (Neither the Federal

otor

Carrier Safety Regulations nor the Federal Motor Carrier Safety Act creates a private
cause of action). Similarly, the Delaware Uniform Commercial Driver License Act, 21
Del. C. §§ 2600-2626, does not provide for a private cause of action. With re ard to
claims that may be raised under the "Other States Uniform Commercial Drive's License
Act," "the States Act," and "29 U.S.C.," said laws are not adequately identified, and the
court is unable to discern what it is that plaintiff attempts to plead.
The newly added Count III is similarly deficient given that plaintiff seek to
impose liability against defendants under 42 U.S.C. § 1983. To state a claim nder 42
U.S.C. § 1983, a plaintiff must allege "the violation of a right secured by the C nstitution
or laws of the United States and must show that the alleged deprivation was Jommitted
by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48

~1988)

(citing Parratt v. Taylor,451 U.S. 527, 535 (1981), overruled in parton other grounds by
Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). To act under "color of state law" a
defendant must be "clothed with the authority of state law." West, 487 U.S.

a~

49.

There are no allegations that defendants are state actors or that they were "clbthed with
the authority of state law." See Reichley v. Pennsylvania Dep't of Agric., 4271F.3d 236,
244-45 (3d Cir. 2005); Biener v. Calio, 361 F.3d 206, 216-17 (3d Cir. 2004).

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In addition, the claims under the remaining statutes upon which plaintiff relies, as
well as the due process claims, are deficient. Nor does the complaint provide facts to
support any wage claim or claim for fraud. Finally, the allegations are conclusory and
fail to meet the pleading requirements of Iqbal and Twombly. Plaintiff was

gi~en an

opportunity to cure his pleading defects, but he failed to do so.
In plaintiff's opposition to the motion to dismiss, he sets forth new alleg tions that
are not contained in the amended complaint. 1 (0.1. 27) Therein, plaintiff, wh is black,
alleges that other drivers, who are black, white, and of foreign descent refuse to make
a "New York run" or had their driving privileges revoked but, unlike him, they

ere not

fired or disciplined. To set forth a prima facie case of disparate treatment ba ed on
race, a plaintiff must show that "(1) he is a member of a protected class; (2) e was
qualified for the position he sought to attain or retain; (3) he suffered an adve se
employment action; and (4) the action occurred under circumstances that could give
rise to an inference of intentional discrimination." Makky v. Chertoff, 541 F.3~ 205,214
(3d Gir. 2008). As an alternative to the fourth prong, a plaintiff may show

"tha~ similarly

situated individuals outside the plaintiff's class were treated more favorably [than he]."
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 273-74 (3d Gir. 2010) (citCjitions

omitted)). Plaintiff must plead "enough facts to state a claim to relief that is
its face." Twombly, 550 U.S. at 570. The "plausibility paradigm ... applies

PI~usible on
w~th equal

1A plaintiff should not be able effectively to amend a complaint through any
document short of an amended pleading. Grayson v. Mayview State Hosp., 293 F.3d
103, 109 n.9 (3d Gir. 2002). Accord Commonwealth of Pa. ex. reI. Zimmerm In v.
PepsiCo. Inc., 836 F.2d 173, 181 (3d Gir. 1988) ("[I]t is axiomatic that the co plaint may
not be amended by the briefs in opposition to a motion to dismiss.").

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force to analyzing the adequacy of claims of employment discrimination." Wil erson v.

New Media Tech. CharterSch., Inc., 522 F.3d 315, 322 (3d Cir. 2008).
Plaintiff alleges that he is a member of a protected class based on his ace.
Plaintiff describes white, black and "foreign descent" individuals as having rec ived
better treatment. Plaintiff alleges that the foregoing individuals were not disci lined for
their conduct, while he was disciplined for the same or similar conduct. Plaintiff alleges
that he is a member of a protected class, that he was qualified for the positio
and that he suffered an adverse employment action. However, given that oth r
members of his protected class were not discharged for perceived employme t
infractions, plaintiff fails to allege that defendants' conduct was motivated by r ceo
These allegations, were they included in the amended complaint, fail to state

claim of

employment discrimination. See Bush v. Commonwealth Edison Co., 990 F.
931 (7th Cir. 1993) ("a pattern in which blacks sometimes do better than whit
sometimes do worse, being random with respect to race, is not evidence of racial
discrimination"). Accordingly, the court concludes that even were it to consid r the
allegations contained in plaintiff's opposition to the motion to dismiss, he fails
plausible claim for discrimination on the basis of race.

V. CONCLUSION
For the above reasons, the court will grant defendants' motion to dismi s. (D.I.
23) The court finds amendment futile.
An appropriate order will issue.

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