The opinion of the court was delivered by: Judge Nora Barry Fischer
Before the Court is Defendant Billy Beru, Inc.'s ("Defendant") Motion to Dismiss pro se*fn1 Plaintiff Curtis Hyram Paschal's ("Plaintiff") Third Amended Complaint. (Docket No. 28). For the following reasons, Defendant's Motion is GRANTED; Plaintiff's Third Amended Complaint is dismissed without prejudice, and Plaintiff shall file a Fourth Amended Complaint by May 8, 2009.
Plaintiff, an African-American male, claims that he was racially discriminated against by Defendant while patronizing one of its eating establishments, Silky's Bar and Grill, in violation of 42 U.S.C. § 1981. (Docket No. 24). Specifically, Plaintiff contends that he was discriminated against because 1) on July 27, 2008, he was rushed while eating and was the only customer to be given a check by the bartender before he ate; 2) on August 10, 2008, a manager refused to talk to Plaintiff about his complaint of racial discrimination and would not give him the name and phone number of a person with whom he could discuss his complaint; and 3) at an unknown time prior to the two aforementioned incidents, Plaintiff was harassed by a white customer while he ate at the restaurant. (Docket No. 24 at 2).
Plaintiff, proceeding pro se, originally filed this complaint against Defendant on August 18, 2008. (Docket No. 1). Plaintiff then filed an Amended Complaint on August 26, 2008. (Docket No. 6). Prior to filing the instant motion, Defendant moved twice to dismiss Plaintiff's claims (See Docket Nos. 8 and 16 ), and the Court has permitted Plaintiff to amend his complaint a total of three times. (See Docket Nos. 1, 6, 15, 24).
On January 21, 2009, Plaintiff filed a Third Amended Complaint (Docket No. 24) against Defendant, alleging that it discriminated against him on the basis of his race in violation of 42 U.S.C. § 1981. (Docket No. 26 at 1).*fn2 On February 5, 2009, Defendant filed the instant motion to dismiss on the basis that Plaintiff has failed to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 28). Plaintiff filed a brief in opposition to same (Docket No. 32), and the Court held a hearing on March 17, 2009 during which Plaintiff testified, clarifying the factual statements contained in his Third Amended Complaint and the Court heard argument on the pending motion. (See Docket No. 39). Accordingly, the motion is now ripe for disposition.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although Federal Rule of Civil Procedure 8(a) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, it is not enough "to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of the proscribed conduct." Phillips, 515 F.3d at 233 (quoting Twombly, 550 U.S. at 563 n.8)(internal quotation omitted). Moreover, factual allegations in the complaint may not be "so undeveloped that it does not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
In ruling on a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)(internal quotation and citation omitted). "Nonetheless, a court need not credit a plaintiff's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007)(quoting Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)(internal quotation omitted)).
Because Plaintiff is a pro se litigant, his pleadings are "to be liberally construed." Erickson v. Pardus, 551 U.S. 89 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Furthermore, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Id. As previously noted, Plaintiff is no stranger to this Court.
Plaintiff has brought the instant suit pursuant to 42 U.S.C. § 1981. Section 1981, which prohibits racial discrimination in the making ...