JONES v. PHILADELPHIA COUNTY ASSITANCE OFFICE et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 9/24/12. 9/25/12 ENTERED AND COPIES MAILED TO PRO SE PLFF.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IRVING COURTLEY JONES
PHILADELPHIA COUNTY ASSISTANCE
OFFICE, et al.
SEPTEMBER 24, 2012
Plaintiff Irving Courtley Jones brings this action pursuant
to 42 U.S.C. §§ 1981 & 1983, against the Philadelphia County
Assistance Office, Philadelphia Gas Works (“PGW”), and the
Pennsylvania Public Utility Commission (“PUC”).
proceed in forma pauperis.
He seeks to
For the following reasons, the Court
will grant plaintiff leave to proceed in forma pauperis and
dismiss his complaint without prejudice to his filing an amended
Plaintiff’s claims are based on the fact that PGW either
did, or indicated that it would, shut off his gas while he was in
the course of obtaining public assistance to help him pay his gas
In December 2011, plaintiff applied with the Philadelphia
County Assistance Office for benefits through the Low Income Home
Energy Assistance Program (“LIHEAP”).2
Plaintiff only received
The following facts are taken from the complaint and the
exhibits attached to the complaint.
LIHEAP is a federal program that offers low income
households assistance in meeting their home energy needs. See
U.S. Department of Health and Human Services, Low Income Home
Energy Assistance Program Fact Sheet,
$77.00 in assistance even though he has “zero income” and had a
gas bill of $188.80.
Plaintiff was initially informed that he could apply for an
additional $280.00, but was later was told that he was not
eligible for additional assistance through LIHEAP because he was
Although plaintiff was no longer receiving “UC”
benefits as of October, he was unsuccessful in obtaining
additional funds through LIHEAP.
Attachments to the complaint
reflect that, while plaintiff was attempting to acquire
additional benefits, he did not pay his $188.80 gas bill.
Accordingly, PGW sent him a ten-day shut off notice.
provided plaintiff with a number to call if he sought to discuss
his bill or the notice, and informed plaintiff of potential
options and/or rights that he might have.
It appears that plaintiff contacted PGW and PUC to resolve
the situation and to lodge a “formal complaint.”
he appealed the denial of additional LIHEAP benefits.
was scheduled for a hearing before the Pennsylvania Department of
Public Welfare’s Bureau of Hearings & Appeals on September 13,
The complaint implies, but does not directly state, that
PGW shut off plaintiff’s gas before that time.
three days before the hearing, plaintiff filed this lawsuit.
In this lawsuit, plaintiff seeks “an injunction against PGW
(last accessed Sept. 21, 2012).
By “UC,” the Court assumes that plaintiff means
unemployment compensation benefits.
to allow the plaintiff to a hearing and the proper review of his
He explains that he is a 57-year old diabetic
who needs his gas for cooking so that he can maintain his
He also contends that, if his gas is shut off,
he could face eviction.
Finally, he alleges that he “fears that
a recent [job] application with the Philadelphia Police
Department might be placed in jeopardy if this matter is not
resolved,” and “feels that he is being discriminated [against] on
the basis of his race[, African American].”
STANDARD OF REVIEW
The Court grants plaintiff leave to proceed in forma
pauperis because he has satisfied the criteria set forth in 28
U.S.C. § 1915.
Accordingly, 28 U.S.C. § 1915(e)(2)(B) applies.
That provision requires the Court to dismiss the complaint if it
fails to state a claim.
Whether a complaint fails to state a
claim under § 1915(e) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.
1999), which requires the Court to determine whether the
complaint contains “sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Although any factual allegations must be taken as true, courts
evaluating the viability of a complaint should “disregard legal
conclusions and recitals of the elements of a cause of action,
supported by mere conclusory statements.”
Santiago v. Warminster
Twp., 629 F.3d 121, 128 (3d Cir. 2010) (quotations omitted); see
also Renfro v. Unisys Corp., 671 F.3d 314, 320 (3d Cir. 2011)
(“[C]ourts evaluating the viability of a complaint . . . must
look beyond conclusory statements . . . .”).
Thus, although the
Court must construe plaintiff’s allegations liberally because he
is proceeding pro se, Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d
Cir. 2011), he must recite more than “labels and conclusions” to
state a claim.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
Section 1983 provides a cause of action to a plaintiff whose
constitutional or federal rights were violated by those acting
under color of state law.
42 U.S.C. § 1983.
Thus, “[t]o state a
claim under § 1983, a plaintiff must show that the defendant[s],
through conduct sanctioned under the color of state law, deprived
[him] of a federal constitutional or statutory right.”
v. Seip, 225 F.3d 290, 298 (3d Cir. 2000).
“protects the equal right of ‘[a]ll persons within the
jurisdiction of the United States’ to ‘make and enforce
contracts’ without respect to race.”
Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 474-75 (2006) (quoting 42 U.S.C. §
To state a claim under § 1981, “a plaintiff must
allege facts in support of the following elements: (1) that
plaintiff is a member of a racial minority; (2) intent to
discriminate on the basis of race by the defendant; and (3)
discrimination concerning one or more of the activities
enumerated in the statute, which includes the right to make and
Brown v. Philip Morris, Inc., 250 F.3d 789,
797 (3d Cir. 2001) (quotations and alterations omitted).
In light of plaintiff’s assertion that he “feels that he is
being discriminated on the basis of his race,” it appears that he
is attempting to assert a claim that he was discriminated against
and/or denied equal protection of the law in connection with the
assessment of his benefits and/or the shutting off of his gas.
However, disregarding that conclusory allegation, nothing in the
complaint supports such a claim.
The facts of the complaint
indicate that plaintiff was pursuing additional benefits beyond
the amount he initially received through the LIHEAP program,
that, in the meantime, he received a notice that his gas would be
shut off because he did not pay his bill, and that his gas may
have in fact been shut off while he was in the process of
fighting for increased benefits.
Those facts do not reflect that
plaintiff was in any way discriminated against because of his
race or that he was denied a federal or constitutional right.
See Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.
1990) (plaintiffs alleging an equal protection violation must
demonstrate that they received different treatment from that
received by other individuals similarly situated); see also Gross
v. R.T. Reynolds, Inc., 2012 WL 2673139, at *3 (3d Cir. July 6,
2012) (per curiam) (amended complaint did not state a claim under
§ 1981 where “it allege[d] a series of unfortunate events and
then state[d], in conclusory fashion, that the reason for those
events is that [defendant] harbored discriminatory animus towards
[plaintiff and his colleague]”).
Accordingly, the Court will
dismiss the complaint for failure to state a claim.
For the foregoing reasons, the complaint is dismissed
Plaintiff will be given an opportunity to
file an amended complaint in the event that he can cure the above
See Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002).
An appropriate order follows.
The only relief that plaintiff seeks through this lawsuit
is an injunction against PGW, apparently either to prevent PGW
from turning off his gas or to require PGW to keep the gas on
while plaintiff is in the process of seeking review of his
benefits with the Commonwealth. As he only seeks relief against
PGW, it is not clear why plaintiff added the Philadelphia County
Assistance Office and the Pennsylvania Public Utilities
Commission as defendants. Furthermore, once review with the
Commonwealth is complete, this case will become moot. See
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–699 (3d Cir.
1996) (“If developments occur during the course of adjudication
that . . . prevent a court from being able to grant the requested
relief, the case must be dismissed as moot.”). Thus, if
plaintiff files an amended complaint, he should inform the Court
of the status of proceedings concerning his LIHEAP benefits.
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