Okpor v. Trans Cargo LLC et al

Filing 5

MEMORANDUM - Signed by Judge Sue L. Robinson on 8/17/15. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MICHAEL OKPOR,
Plaintiff,
v.
TRANS CARGO, LLC, et aI.,
Defendants.

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) Civ. No.15-480-SLR
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MEMORANDUM
1. Introduction. Plaintiff Michael Okpor ("plaintiff") proceeds pro se and has
been granted leave to proceed in forma pauperis. He filed this lawsuit on June 11,
2015, alleging violations of his civil rights, consumer fraud, theft, and breach of contract.
(0.1.2) Plaintiff claims jurisdiction by reason of diversity citizenship of the parties 1 and
federal questions.
2. Standard of Review. A federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) if "the action is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726
F .3d 448, 452 (3d Cir. 2013). The court must accept all factual allegations in a
complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips

v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.

1 It is not clear if the parties are diverse. Both plaintiff and AES Shipping have New
Jersey addresses. Regardless, even if the parties are not diverse, the complaint states
a federal claim and the court may exercise supplemental jurisdiction over the state
claims pled in the complaint. See 28 U.S.C. §§ 1331, 1332, 1367.

89,93 (2007). Because plaintiff proceeds pro se, his pleading is liberally construed and
his complaint, "however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations
omitted).
3. An action is frivolous if it "lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319,325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless
legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario.
Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g.,
Deutsch v. United States, 67 F .3d 1080, 1091-92 (3d Cir. 1995).
4. The legal standard for dismissing a complaint for failure to state a claim
pursuant to § 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on
Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)
(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under

§ 1915(e)(2)(B)). However, before dismissing a complaint or claims for failure to state a
claim upon which relief may be granted pursuant to the screening provisions of 28
U.S.C. § 1915, the court must grant plaintiffs leave to amend the complaint unless
amendment would be inequitable or futile. See Grayson

V.

Mayview State Hosp., 293

F.3d 103, 114 (3d Cir. 2002).
5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft V. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has
substantive plausibility. See Johnson

V.

City of Shelby, _U.S._, 135 S.Ct. 346, 347

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(2014). A complaint may not dismissed, however, for imperfect statements of the legal
theory supporting the claim asserted. See id. at 346. When determining whether
dismissal is appropriate, the court must take three steps: "(1) identify[] the elements of
the claim, (2) review[] the complaint to strike conclusory allegations, and then (3) 100k[J
at the well-pleaded components of the complaint and evaluat[e] whether all of the
elements identified in part one of the inquiry are sufficiently alleged." Malleus v.
George, 641 F.3d 560,563 (3d Cir. 2011). Elements are sufficiently alleged when the

facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2». Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id.
6. Discussion. Plaintiff alleges violations of his civil rights under 42 U.S.C.

§§ 1984,1985, and 1986 "and more." The civil cover sheet refers to "U.S. 1982­
1998." This memorandum addresses §§ 1982, 1983, 1985, and1986, but will not
address §§ 1987 through 1992 and §§ 1994 through 1997 as it finds those statutes
inapplicable to the complaint as currently pled. 2 The complaint contains three counts:
(1) count one alleges a fraudulent act by deceit or misrepresentation, deliberately
performed, by depriving plaintiff of his Mack dump truck; (2) count two alleges breach of
the implied covenant of good faith and fair dealing; and (3) count three alleges
discrimination.

2 Section 1984 is "omitted" from the United States Code, § 1993 has been repealed, and
there is no § 1998.

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7. In 2013, plaintiff made plans to have his Mack truck shipped to Nigeria. He
delivered the truck to defendant AES Shipping ("AES") and, two days after the truck
arrived, plaintiff was involved in an accident that resulted in his total disability. He
notified AES and defendant Trans Cargo LLC {"Trans Cargo")3 about the accident.
Trans Cargo told plaintiff that his truck was being held at the port authority. Based upon
the allegations it appears that, at some point in time, two other trucks were stored at the
port.
8. In April 2015, plaintiff went to Trans Cargo to retrieve his truck. Trans Cargo
advised plaintiff that he was required to pay for storage of the three trucks before Trans
Cargo would release the trucks to him. Plaintiff made a deal with Trans Cargo that he
would return in May to pay for the storage. When plaintiff returned in May to pay the
storage costs, he discovered that only two trucks were available. Plaintiff alleges that
the best dump truck was stolen by Trans Cargo and defendant Luis Mundy ("Mundy"),
the manager of Trans Cargo.
9. Plaintiff confronted Mundy who call plaintiff racial names and made racial
threats to plaintiff such as "dirty African you don't have nothing in this country" and "I
sold the truck nigger go back to Nigeria, this is [an] American truck and it belongs to
America." Plaintiff alleges that Mundy's acts were racially discriminatory. (D.I. 2)

Trans Cargo which is located adjacent to the Port of Wilmington, Delaware, is the
terminal operating arm of AutoPort (a certified full-service automotive conversion,
restyling and processing center). With AutoPort, Trans Cargo prepares automobiles,
trucks and oversized rolling stock units for export onboard specially built automobile and
truck carriers to Middle Eastern, African and Mediterranean markets through the Port of
Wilmington. See http://www.portofWilmington.com/HTMUour_portlPR/news_AutoPort_
sign_10_yearJease_with_Wilmington_052009.htm (Aug. 4,2015).
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Plaintiff alleges that the discrimination and illegal acts of defendants "offended,
humiliated and tended to degrade plaintiff to his demand of his trucks." Plaintiff alleges
that he paid several thousands of dollars towards the storage, that AES and Trans
Cargo kept the original titles of the trucks, and they would not release the titles to him
even after he paid the storage fees.
10. 42 U.S.C. § 1982. The court liberally construes plaintiffs complaint and
finds that he has stated a valid claim under 42 U.S.C. § 19824 (a statute referenced in
the civil cover sheet) on the claims raised against Mundy.
11. 42 U.S.C. § 1983. To the extent plaintiff raises a claim under § 1983, the
claim fails. When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). There are no
allegations that any defendant is a state actor. Therefore, the claim will be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(i).
12. 42 U.S.C. § 1985 and § 1986. The complaint fails to state claims pursuant to
42 U.S.C. § 1985 and § 1986. Subsection (3) of Section 1985 provides a cause of action
against a person who conspires "for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges

442 U.S.C. § 1982 provides that "[a]1I citizens of the United States shall have the same
right, in every state and Territory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal property." 42 U.S.C. § 1982.
"To establish a cognizable claim under § 1982, a plaintiff 'must allege with specificity
facts sufficient to show ... (1) the defendant's racial animus; (2) intentional
discrimination; and (3) that the defendant deprived plaintiff of his [property] rights
because of race." Crane v. Cumberland Cnty., 64 F. App'x 838,841 (3d Cir. 2003),
quoting Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001)).

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and immunities under the laws." 42 U.S.C. § 1985(3). Plaintiff makes various
allegations about defendants' involvement in the alleged acts, but makes no real
allegations about any role in a conspiracy. In addition, plaintiff makes no allegations of
any actions which would demonstrate an actual agreement to conspire. See Boykin v.
Bloomsburg Univ. of Pa., 893 F. Supp. 409, 418 (M.D. Pa. 1995) (Mere conclusory
allegations that a conspiracy existed will not survive a motion to dismiss). In addition,
without a § 1985 claim, there can be no claim under 42 U.S.C. § 1986. See Rogin v.
Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) ("Because transgressions of § 1986 by
definition depend on a preexisting violation of § 1985, if the claimant does not set forth a
cause of action under the latter, its claim under the former necessarily must fail also.").
Accordingly, the court will dismiss the §§ 1985 and 1986 claims for failure to state claims
upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Since it
appears plausible that plaintiff may be able to articulate a claim against defendants (or
name alternative defendants), he will be given an opportunity to amend this claim in this
regard.
13. State Claims. liberally construing the complaint, plaintiff has alleged what
appear to be cognizable fraud and breach of the implied covenant of good faith and fair
dealing claims under Delaware law. See Stephenson v. Capano Develop., Inc., 462
A.2d 1069, 1074 (Del. 1983) (setting forth the elements of common law fraud), and
Charlotte Broadcasting, LLC v. David Broadcasting of Atlanta, L.L.C., 2015 WL
3863245, at *6 (Del. Super. 2015) (setting for the elements of breach of the implied
covenant of good faith and fair dealing).

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14. Conclusion. For the above reasons, plaintiff will be allowed to proceed on
the 42 U.S.C. § 1982 claim against Mundy and the supplemental state claims. All other
claims will be dismissed as frivolous and for failure to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(8)(i) and (ii). Plaintiff will be given
leave to amend the 42 U.S.C. §§ 1985 and 1986 claims. A separate order shall issue.

Date: August J.:L, 2015

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