Brown v. Delaware Department of Labor et al.

Filing 18

MEMORANDUM OPINION regarding MOTION to Dismiss (D.I. 8 ). Signed by Judge Richard G. Andrews on 7/5/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEVON ANTHONY BROWN,
Plaintiff,

v.

Civ. No. 16-624-RGA

DANIEL MCGANNON, et al.,
Defendants.

Devon Anthony Brown, New Castle, Delaware. Pro Se Plaintiff.
Oliver J. Cleary, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

-

July ~ , 2017
Wilmington, Delaware

Plaintiff Devon Anthony Brown, who appears pro se and has been granted leave
to proceed in forma pauperis, filed this action on July 22, 2016, followed by an
amendment on August 8, 2016. (D.I. 2, 5). Defendants move to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6). (0.1. 8). Plaintiff opposes. (0.1. 15). Briefing on the motion is
complete.

BACKGROUND
Named as Defendants are Daniel McGannon, Brenda Sands, Patrice GilliamJohnson, and an unnamed Delaware Department of Labor Security Officer. 1 Plaintiff's
allegations are set forth in the Court's October 26, 2016 memorandum and order that
screened the case pursuant to 28 U.S.C. § 1915(e)(2) and they are incorporated
herein. (D.I. 6, 7). Plaintiff raises due process claims against McGannon, Sands, and
Gilliam-Johnson for refusing to accept his charge of discrimination against his
employer. He also raises a supplemental state law claim for battery against the DOOL
security officer.
Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the
grounds that: (1) Gilliam-Johnson is not liable under any plausible theory;
(2) McGannon and Sands are protected from liability by reason of qualified immunity
from suit; and (3) Plaintiff's allegations do not constitute a violation of his due process
rights.

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Plaintiff also named the State of Delaware and the Delaware Department of
Labor as defendants, both of whom have been dismissed as they are immune from
suit. (See 0.1. 6, 7).

STANDARDS OF LAW

Plaintiff proceeds prose and, therefore, his pleadings are 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. 89, 94 (2007).
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that those allegations "could not raise a
claim of entitlement to relief." Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
The legal standard when ruling on Rule 12(b)(6) motions is identical to the standard
used when screening a complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See
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)).
"Though 'detailed factual allegations' are not required, a complaint must do more
than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action.'" Davis v. Abington Mem'I Hosp., 765 F.3d 236, 241 (3d Cir. 2014)
(quoting Twombly, 550 U.S. at 555). In addition, 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 (2014). A complaint may not dismissed, however, for
imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
When reviewing the sufficiency of a complaint, a court should follow a three-step
process: (1) consider the elements necessary to state a claim; (2) identify allegations
that are merely conclusions and therefore are not well-pleaded factual allegations; and
(3) accept any well-pleaded factual allegations as true and determine whether they

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plausibly state a claim. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.
2016); Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014). 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." Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).

DISCUSSION
The Court considers Defendants' motion to dismiss the claims against GilliamJohnson, Secretary of the Delaware Department of Labor, and revisits the allegations
raised against her. Defendants seek dismissal based upon her supervisory position.
The Complaint alleges that Plaintiff called Gilliam-Johnson's office and communicated
with "Ms. Patty," but does not provide the content of the communication or identify "Ms.
Patty." (D.I. 2 at p.6). The Complaint goes on to allege that Gilliam-Johnson and her
office "shunned their responsibility by not responding or taking any action." (Id.).
It is well established that claims based solely on the theory of respondeat
superior or supervisor liability are facially deficient. See Ashcroft v. Iqbal, 556 U.S. 662,
676-77 (2009); see also Solan v. Ranck, 326 F. App'x 97, 100-01 (3d Cir. 2009)
(holding that "[a] defendant in a civil rights action must have personal involvement in the
alleged wrongs; liability cannot be predicated solely on the operation of respondeat
superior''). Facts showing personal involvement of the defendant must be asserted;
such assertions may be made through allegations of specific facts showing that a
defendant expressly directed the deprivation of a plaintiff's constitutional rights or
created such policies where the subordinates had no discretion in applying the policies
in a fashion other than the one which actually produced the alleged deprivation; e.g.,

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supervisory liability may attach if the plaintiff asserts facts showing that the supervisor's
actions were "the moving force" behind the harm suffered by the plaintiff. See Sample

v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989); see alsoAshcroftv. Iqbal, 556 U.S.
662, 677-86 (2009); City of Canton v. Harris, 489 U.S. 378 (1989); Heggenmiller v.

Edna Mahan Corr. Inst. for Women, 128 F. App'x 240 (3d Cir. Apr. 2005).
Plaintiff provides no specific facts alleging how Gilliam-Johnson violated his
constitutional rights, or that she expressly directed the deprivation of his constitutional
rights, or that she created policies wherein subordinates had no discretion in applying
them in a fashion other than the one which actually produced the alleged deprivation.
Plaintiff's claim against Gilliam-Johnson must be dismissed because it rests
impermissibly on a theory of supervisory liability. Therefore, the Court will grant the
motion to dismiss the claims against Gilliam-Johnson.
The Court has also revisited the claims against McGannon and finds they fail to
state a due process claim against McGannon. When Brown met with McGannon and
Sands on June 14, 2016, they discussed the charge of discrimination that Brown
sought to file. Brown was told to return at a later date with additional information. The
allegations are that it was Brown's June 20, 2016 interaction with Sands that resulted in
him not being allowed to file a charge of discrimination. There is no mention of
McGannon on June 20, 2016. Accordingly, the Court will dismiss the claims raised
against McGannon.
As to Sands, the Court previously reviewed Plaintiff's allegations and found that
he stated what appear to be cognizable and non-frivolous claims. (See D.I. 6).
Nothing has changed since the court's ruling. The Court has revisited the allegations,

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liberally construed them, as it must, and finds that Plaintiff adequately alleges violations
of his right to due process. Therefore, the Court will deny that portion of the motion to
dismiss that seeks dismissal of the 42 U.S.C. § 1983 claims for failure to state a claim
upon which relief may be granted as to Sands.
Defendants also seek dismissal of the claims raised against Sands by reason of
qualified immunity. Liberally construing Plaintiffs factual allegations, they support the

§ 1983 claims raised against Sands. Given the early stage of litigation, the Court
concludes that Defendants have prematurely raised the issue of qualified immunity and
that the issue is better addressed at the summary judgment stage. See Newland v.
Reehorst, 328 F. App'x 788, 791 n.3 (3d Cir. 2009) ("it is generally unwise to venture
into a qualified immunity analysis at the pleading stage as it is necessary to develop the
factual record in the vast majority of cases"). Therefore, the Court will deny the motion
to dismiss on the grounds of qualified immunity.
CONCLUSION
For the above reasons, the Court will deny in part and grant in part Defendants'
motion to dismiss. (D.I. 8).
An appropriate order will be entered.

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