ROY v. WINARSKI

Filing 11

OPINION. Signed by Judge Noel L. Hillman on 6/8/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
FRANK ROY,
Plaintiff,

Civil No. 14-6370 (NLH/KMW)

v.
OPINION
EDWARD WINARSKI,
Defendant.
__________________________________

APPEARANCES:
FRANK ROY
998 W. LANDIS AVE, UNIT 121
VINELAND, NJ 08360
Appearing pro se
PAUL H. SCULL, JR.
151 NORTH BROADWAY
PENNSVILLE, NJ 08070
On behalf of defendant

HILLMAN, District Judge
Presently before the Court is the motion of defendant to
dismiss the claims asserted against him, or in the alternative,
for summary judgment.

Also pending before the Court is the

motion of plaintiff to dismiss defendant’s motion.

For the

reasons expressed below, defendant’s motion will be granted and
plaintiff’s motion will be denied.

BACKGROUND
Plaintiff, Frank Roy, appearing pro se, 1 claims that
defendant, Edward Winarski, discriminated against him when
plaintiff rented a home owned by defendant.

Plaintiff claims

that defendant evicted plaintiff’s girlfriend from the premises
while plaintiff was in a psychiatric hospital, and took
possession of numerous items belonging to plaintiff, including a
customized limousine, 55 record albums, 3,700 video tapes,
furniture, stereo equipment, a big screen television, gold
Christmas ornaments, 42 pieces of ladies clothing, including a
$85,000 Versace gown, and celebrity photographs, and sold them
without plaintiff’s permission.

Plaintiff claims that defendant

did not give plaintiff any of the money from the sale of his
belongings.

Plaintiff claims that defendant discriminated

against him because of his disability, and violated the Civil

1

The Court is well-acquainted with Mr. Roy. See 1:13-cv-04256RMB-JS, ROY v. WALMART; 1:13-cv-05138-RMB-KMW, ROY v. HOMESITE
INSURANCE CO.; 1:13-cv-05143-RMB-AMD, ROY v. TRAVELERS INSURANCE;
1:14-cv-02846-NLH-JS, ROY v. U-HAUL; 1:14-cv-02847-NLH-KMW, ROY
v. RAMSEY MOVING SYSTEM; 1:14-cv-02848-NLH-KMW, ROY v. SEARS;
1:14-cv-03554-NLH-JS, ROY v. HOMESITE INSURANCE; 1:14-cv-04277NLH-KMW, ROY v. PENN NATIONAL INSURANCE COMPANY; 1:14-cv-06369NLH-KMW, ROY v. TRIDENT INSURANCE AGENCY; 1:14-cv-06370-NLH-KMW,
ROY v. WINARSKI; 1:14-cv-07129-RBK-KMW, ROY v. NATIONWIDE; 1:15cv-03330-JBS-AMD, ROY v. RAMSEY MOVING SYSTEM; 3:14-cv-02996-FLWDEA, ROY v. BUMB; 3:14-cv-07131-FLW-TJB, ROY v. JUSTICE NOEL
HILLMAN; 3:14-cv-07220-FLW-TJB, ROY v. HILLMAN; 3:15-cv-03338PGS-LHG, ROY v. HILLMAN; 3:15-cv-03340-PGS-DEA, ROY v. WILLIAMS;
3:15-cv-03341-PGS-TJB, ROY v. KUGLER.
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Rights Act of 1991.

Plaintiff has demanded $350,000 in damages.

The complaint does not contain any allegations concerning when
defendant’s alleged actions occurred.
Defendant has moved to dismiss plaintiff’s claims against
him for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6).

In the alternative, defendant has moved for summary

judgment, arguing that plaintiff’s claims are barred by the
applicable statute of limitations.

(Docket No. 5.)

Plaintiff

has filed an opposition to defendant’s motion (Docket No. 7), and
he has also filed a motion to dismiss defendant’s motion (Docket
No. 8).
DISCUSSION
A.

Jurisdiction

Plaintiff does not specifically aver this Court’s subject
matter jurisdiction over his case, but the Court presumes it is
predicated on 28 U.S.C. § 1331 because plaintiff claims that
defendant violated his rights under a federal statute.
B.

Standard for Motion to Dismiss

In considering whether a plaintiff’s complaint fails to
state a claim, the Court must accept all well-pleaded allegations
in the complaint as true and view them in the light most
favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 350

(3d Cir. 2005); see also Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008) (“[I]n deciding a motion under Fed. R.
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Civ. P. 12(b)(6), [a district court is] . . . required to accept
as true all factual allegations in the complaint and draw all
inferences from the facts alleged in the light most favorable to”
the plaintiff).

A pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007) (quoting Scheuer v. Rhoades, 416
U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S. Ct. 1937, 173 L. Ed.
2d 868 (2009) (“Our decision in Twombly expounded the pleading
standard for ‘all civil actions[.]’”) (citation omitted).

First,

under the Twombly/Iqbal standard, a district court “must accept
all of the complaint’s well-pleaded facts as true, but may
disregard any legal conclusions.”

Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 678,
129 S. Ct. 1937).

Second, a district court “must then determine

whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a ‘plausible claim for relief.’”

Fowler,

578 F.3d at 211 (citing Iqbal, 556 U.S. at 679, 129 S. Ct. 1937).

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“[A] complaint must do more than allege the plaintiff’s
entitlement to relief.”

Fowler, 578 F.3d at 211; see also

Phillips, 515 F.3d at 234 (“The Supreme Court’s Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.

This

‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556, 127 S.
Ct. 1955).

“The defendant bears the burden of showing that no

claim has been presented.”

Hedges v. United States, 404 F.3d

744, 750 (3d Cir. 2005).
Finally, a court in reviewing a Rule 12(b)(6) motion must
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of public record.
Guidotti v. Legal Helpers Debt Resolution, 716 F.3d 764, 772 (3d
Cir. 2013).

A court may also consider “‘undisputedly authentic

documents if the complainant's claims are based upon these
documents[.]’”

Id. (quoting Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010)).

If any other matters outside the pleadings

are presented to the court, and the court does not exclude those
matters, a Rule 12(b)(6) motion will be treated as a summary
judgment motion pursuant to Rule 56.
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Fed. R. Civ. P. 12(d).

C.

Standard for Summary Judgment
Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
D.

Analysis

Pro se complaints must be construed liberally, and all
reasonable latitude must be afforded the pro se litigant.

Haines

v. Kerner, 404 U.S. 519, 520 (1972), reh’g denied, 405 U.S. 948
(1972).

Even though pro se complaints, “however inartfully

pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers,” Estelle v. Gamble, 429 U.S. 97,
107 (1976), pro se litigants “must still plead the essential
elements of [their] claim and [are] not excused from conforming
to the standard rules of civil procedure,” McNeil v. United
States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without
counsel.”); Sykes v. Blockbuster Video, 205 F. App’x 961, 963 (3d

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Cir. 2006) (finding that pro se plaintiffs are expected to comply
with the Federal Rules of Civil Procedure).
Here, even accepting as true plaintiff’s claims that
defendant sold his belongings without his permission and retained
all the proceeds from the sale, plaintiff’s complaint is
deficient because it fails to comply with Rule 8(a) of the
Federal Rules of Civil Procedure.

Rule 8(a) requires that a

complaint contain “a short and plain statement of the grounds for
the court’s jurisdiction,” as well as “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a).

Plaintiff has failed to do both.

First, plaintiff does not identify the specific statute
under which his claim is brought, other than stating he brings
this action pursuant to the “statute of Civil Rights Act 1991
subchapter that specifies that it is against the law to
intentionally discriminate against a disabled party.”
1.)

(Compl.

It appears that plaintiff may be attempting to refer to 42

U.S.C. § 1981a, which is titled “Damages in cases of intentional
discrimination in employment,” and subsection (a)(2) of the
statute provides for recovery in disability discrimination cases.
See 42 U.S.C. § 1981a(a)(2).

Section 1981a, however, does not

provide an independent cause of action, and it instead sets forth
the remedies available in certain actions, including some claims
under the Americans with Disabilities Act.
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See Fatiregun v. City

of Philadelphia, No. Civ. A. 09-601, 2009 WL 3172766, at *6 (E.D.
Pa. Oct. 2, 2009) (“Section 1981a does not, either expressly or
impliedly, create an independent cause of action for employment
discrimination plaintiffs.”); Flax v. Delaware Div. of Family
Servs., No. Civ. A. 03-922, 2008 WL 1758857, at *10 (D. Del. Apr.
16, 2008) (collecting cases and noting that the “great weight of
authority holds that § 1981a does not create an independent cause
of action.”), aff’d, 329 F. App’x 360 (3d Cir. 2009).

Plaintiff

therefore cannot assert a claim under Section 1981a absent a
primary claim under another substantive act.
Second, even if plaintiff properly cited to a discrimination
statute that permitted the maintenance of a private cause of
action, plaintiff’s complaint is devoid of any allegations as to
how defendant’s unpermitted sale of his belongings was related to
discrimination based on plaintiff’s disability.

Plaintiff

repeatedly states “defendant discriminated and took control” of
various items belonging to plaintiff, but plaintiff does not
explain the nature of his disability and how defendant’s alleged
actions would have been different if plaintiff was not disabled.
See Black's Law Dictionary (9th ed. 2009) (defining
“discrimination” to mean: “Differential treatment; esp., a
failure to treat all persons equally when no reasonable
distinction can be found between those favored and those not
favored”).

Plaintiff has failed to provide enough factual matter
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to suggest that defendant discriminated against him, which is
required under Twombly/Iqbal in order to withstand a motion to
dismiss.

See Phillips, 515 F.3d at 234.

Because plaintiff has failed to state a valid claim under
the parameters of Rule 8(a) and Twombly/Iqbal, his complaint must
be dismissed.

The Court must still determine, however, whether

plaintiff should be granted leave to file an amended complaint.
Third Circuit case law “supports the notion that in civil rights
cases district courts must offer amendment--irrespective of
whether it is requested--when dismissing a case for failure to
state a claim unless doing so would be inequitable or futile.”
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482
F.3d 247, 251 (3d Cir. 2007).

In this case, it would be futile

to permit plaintiff to file an amended complaint.
In the alternative to his motion to dismiss, defendant has
moved for summary judgment.

In support of his motion, defendant

provides evidence that in September 2004, he sold the property
plaintiff rented, and therefore plaintiff’s claims must have
accrued before that date.

Defendant points out, and the Court

agrees, that the statute of limitation for any discrimination
claim based on conduct that occurred prior to September 2004 –
ten years before plaintiff filed his complaint – would bar
plaintiff’s claims.

See North Star Steel Co. v. Thomas, 515 U.S.

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29, 34 n.1 (1995) (explaining that 28 U.S.C. § 1658 supplies a
general, 4–year limitations period for any federal statute
enacted after December 1, 1990 without one of its own, including
claims under 42 U.S.C. § 1981).

Thus, even if the Court provided

plaintiff with the opportunity to amend his complaint, his
discrimination claims would nonetheless be dismissed as timebarred.
CONCLUSION
For the foregoing reasons, plaintiff’s complaint must be
dismissed, and plaintiff will not be granted leave to file an
amended complaint under this civil action number.
An Order consistent with this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date:

June 8, 2015

At Camden, New Jersey

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