HALL v. KINGSTON et al

Filing 5

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 3/30/2017. 3/31/2017 ENTERED AND COPIES MAILED TO PRO SE.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DEVERE ANDRE HALL, SR.

FILED

CIVIL ACTION

MAR 3 f 2017

v.
RICHARD KINGSTON, et al.

NO. 17-543

B KATE BARKMAN, Clem
Y.
_Dep. Clerk

MEMORANDUM
MARCH

PRATTER, J.

Jo, 2017

Plaintiff Devere Andre Hall Sr. brings this civil action based on allegations that he was
sexually assaulted. For the following reasons, the Court will dismiss the amended complaint.
I.

FACTS AND PROCEDURAL HISTORY

Mr. Hall, who uses a wheelchair to ambulate, filed his initial complaint against Richard
Kingston, JBJ Soul Homes, and an entity identified as "Limited Partnership, LLC." He alleges
that in October or November of 2015, he was approached by three employees of JBJ Soul Homes
and that one of those employees, Mr. Kingston, "reached out and started feeling on [his] shoulder
in a sexual/seductive manner." (Compl.

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IIl.C.) His complaint listed "due process, sexual

harassment, [and] disabled discrimination" as the jurisdictional basis for his claims. (Id.

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II.B.)

In a February 8, 2017 order, the Court granted Mr. Hall leave to proceed informa pauperis
and dismissed his complaint. The Court concluded that Mr. Hall failed to state a federal claim
against the defendants because nothing in the complaint established that the defendants were
state actors subject to liability under 42 U.S.C. § 1983, or otherwise provided a plausible basis
for a federal claim. To the extent Mr. Hall was raising state tort claims, the Court concluded that
it lacked subject matter jurisdiction because the complaint did not establish that the parties were

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diverse or that the amount in controversy exceeded $75,000, so as to justify jurisdiction under 28

u.s.c. § 1332.
Mr. Hall was given an opportunity to file an amended complaint, which he did. As with the
initial complaint, the amended complaint is based on one interaction that Mr. Hall had with Mr.
Kingston on the sidewalk. Mr. Hall alleges that Mr. Kingston, an employee of Project
HOME/JBJ Soul Homes, where Mr. Hall was a resident, "grabbed ... [his] shoulder and felt on
[it] affectionately." (Am. Compl.

'if III.C.) Mr. Hall alleges that "this outrageous

groping/unwanted advances leads to sexual harassment as per JBJ Soul Homes/Project HOME."

(Id.) It appears as though Mr. Hall is claiming that his constitutional rights were violated, that he
was sexually harassed, and that he was discriminated against. The amended complaint names
Mr. Kingston, JBJ Soul Homes, Project HOME, and "Limited Partnership LLC" as defendants. 1
He seeks damages in excess of $75,000 "for sexual harassment." (Id.

II.

'if V.)

STANDARD OF REVIEW

As Mr. Hall is proceeding informa pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which
requires the Court to dismiss the amended complaint if it fails to state a claim. To survive
dismissal, a complaint must contain "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). "[M]ere conclusory statements[] do not suffice." Id. As Mr. Hall is proceeding pro

se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir.
2011). Furthermore, "[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

1

Project HOME is listed as a defendant on the second page of the complaint but was not listed in
the caption. However, the Court understands Mr. Hall to be raising claims against it.
2

III.

DISCUSSION

Mr. Hall's amended complaint fails for the same reasons as his initial complaint. "[A] suit
under § 1983 requires the wrongdoers to have violated federal rights of the plaintiff, and that
they did so while acting under color of state law." Groman v. Twp. of Manalapan, 47 F.3d 628,
638 (3d Cir. 1995)). The amended complaint does not plausibly allege that the defendants are
state actors or set forth a plausible basis for a constitutional violation. Nor is any other plausible
violation of a federal statute apparent from the amended complaint. 2
To the extent Mr. Hall is raising state tort claims, the Court lacks jurisdiction. The only
possible independent basis for subject matter jurisdiction is 28 U.S.C. § 1332(a), which grants a
district court jurisdiction over a case in which "the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between ... citizens of different States."
Mr. Hall alleges that he is a citizen of Pennsylvania. He indicates that the defendants are citizens
of New Jersey, but he has not provided any facts to support that allegation and, although not
conclusive, he has provided only Philadelphia addresses for all of the defendants. The Court
takes judicial notice of the fact that Project HOME "is a Pennsylvania non-profit corporation"
with its main office at 1415 Fairmount Avenue in Philadelphia. United States v. City of Phila.,
838 F. Supp. 223, 224 (E.D. Pa. 1993), aff'd without opinion, 30 F.3d 1488 (3d Cir. 1994); see
also Fed. R. Evid. 201; Pennsylvania Department of State, Charities Online Database

2

It appears that Mr. Hall was living at JBJ Soul Homes when the incident in question occurred.
In the event he is alleging that he was also employed there, which is not clear, he still has not set
forth a plausible basis for a sexual harassment claim under Title VII because the conduct of
which he complains does not rise to the level of an actionable violation. See id. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (explaining that, to be actionable, any harassment must
be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create
an abusive working environment").

3

http://www.charities.pa.gov/CharityDetail.aspx?f5 leac4befbgdj%3d9la7 (last accessed Mar. 29,
2017) (search for Project H.O.M.E.). Project Horne runs JBJ Soul Hornes, a facility located in
Philadelphia. As it is apparent that at least two of the defendants are citizens of Pennsylvania,
see 28 U.S.C. § 1332(c)(l) ("[A] corporation shall be deemed to be a citizen of every State and

foreign state by which it has been incorporated and of the State or foreign state where it has its
principal place of business."), the Court lacks subject matter jurisdiction because the parties are
not completely diverse.

IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss the amended complaint. Mr. Hall will not
be given leave to amend because he cannot cure the defects noted above. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). An order follows, which shall be

docketed separately.

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