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Reed v. Lassoff

December 2, 2009

THOMAS REED PLAINTIFF,
v.
NICHOLAR LASSOFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

MEMORANDUM OPINION*fn1

A. Relevant Procedural History

On October 17, 2008, Plaintiff, acting pro se, filed the instant action pursuant to 42 U.S.C. §1983. The Original Complaint named Nicholas Lassoff and Raymond Lash as Defendants. Since the filing of the original complaint, Plaintiff has filed several additional pleadings. See Documents # 9, 12, 13, 16.

By Order dated January 15, 2009, this Court granted Plaintiff's motion to file an Amended Complaint and directed that Plaintiff file that Amended Complaint containing all of his claims against all Defendants before January 30, 2009.*fn2 Document # 18. The Order specifically warned that "the amended complaint will serve as the only complaint, so Plaintiff must include all Defendants and all grounds for relief in that filing." Id.

On January 23, 3009, Plaintiff filed his "Motion to Amend Correct Complaint and add all involved of liable on sexual harassment." Document # 19. The Court has construed this document as the Amended Complaint. See Document # 20.

In the Amended Complaint, Plaintiff alleges that in April of 2007, he was hired by Engineered Plastics, Inc. ("EPI") through a temporary employment agency, Business Personnel Services. Plaintiff claims that he suffered sexual harassment at the hands of Defendants Nicholas Lassoff and Raymond Lash, co-workers at EPI. Plaintiff alleges that while at work in April of 2008, he witnessed the two men engaged in a sex act while smoking crack cocaine and drinking beer. Plaintiff claims that they invited him to "perform." Following his refusal to participate with the men, Plaintiff claims Defendants falsely accused him of trespass and aggravated assault and he was arrested.

Named as Defendants in the Amended Complaint are Nicholas Lassoff; Raymond Lash*fn3 ; EPI, the corporation; Kurt Duska, owner of EPI; and "Julia L. Julia," owner of Business Personnel Solution Temp Service.

Defendants Engineered Plastics, Lassoff and Duska*fn4 have filed a motion to dismiss. Document # 33. In response to that motion, Plaintiff has filed a "Motion to Move Forward on Hearing against Engineer [sic] Plastic" (Document # 35) and "Motion to Move Forward on Hearing against Engineered Plastic" (Document # 38). Although titled as motions, these filings by Plaintiff are actually briefs in opposition to the pending motion to dismiss, and have been considered by this Court. Additionally, Plaintiff has filed a "Motion to Amend Complaint on Unwelcome Sex and Deprive of Employment by Defendant." Document # 39.

B. Standards of Review

1. Pro se Litigants

Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate. Here, this Court construes Plaintiff's Amended Complaint as stating two separate causes of action: 1) a civil rights claim under 1983 and 2) an employment discrimination claim under Title VII.

2. Motion to Dismiss Pursuant to 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556. Although the United States Supreme Court does "not ...


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