Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-22-2008
Lawrence Zimmer v. Secretary Michael Ch
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1590
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"Lawrence Zimmer v. Secretary Michael Ch" (2008). 2008 Decisions. Paper 337.
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CLD-288 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1590
___________
LAWRENCE ZIMMER,
Appellant
v.
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 07-CV-01836)
District Judge: Honorable Thomas I. Vanaskie
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 11, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
Opinion filed: October 22, 2008
_________
OPINION
_________
PER CURIAM
Lawrence Zimmer appeals from an order of the United States District Court for the
Middle District of Pennsylvania, which dismissed his employment discrimination
1
complaint for failing to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B). We will affirm the District Court’s order.
Zimmer filed a complaint on October 9, 2007 against Secretary Michael Chertoff,
alleging that he was discriminated against on the basis of race, age and reprisal when he
was terminated from the position of Transportation Security Screener on January 12,
2005. The complaint asked for damages, but did not give any more information regarding
Zimmer’s claims. The District Court entered an order dismissing Zimmer’s complaint
without prejudice to his filing an amended complaint within 20 days. The Court noted
that the complaint lacked “sufficient allegations to determine whether he has stated a
claim on which relief may be granted against Secretary Chertoff or the Department of
Homeland Security,” and noted that there were “no allegations regarding the
circumstances of his termination to support even an inference of discrimination.” The
Court ordered that any amended complaint “shall specify the facts on which his claim of
unlawful employment discrimination is based,” and warned that failure to file such a
complaint would result in dismissal of the complaint.
Zimmer filed an amended complaint within the time period specified, but the
District Court found that the amended complaint did not sufficiently include the factual
basis of his claims. The amended complaint stated that he had been “abruptly terminated
from his position of Security Screener without prior warning,” and that he had been
retaliated against for claiming discrimination in writing and verbally to the Agency. The
2
amended complaint stated that Zimmer had a black supervisor named Nathaniel Johnson,
who had acknowledged that Zimmer felt he was being discriminated against because he
was white, and stated that “the three supervisors bringing disciplinary actions against
plaintiff are Black.” He also refers to some “letters from the Black supervisors” that he
alleges contained “defamation, retaliation and lies” against him. Zimmer then attached
over 450 pages of documents from administrative proceedings, and urged the District
Court Judge to review them.
We exercise plenary review over a district court’s decision to dismiss a complaint
sua sponte for failure to state a claim. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000). In considering whether a district court properly dismissed a complaint, we are
required to “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), quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374
n. 7 (3d Cir. 2002). We are guided by the Supreme Court’s recent opinion in Bell
Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1969 n. 8 (2007). The Court
noted that “‘stating . . . a claim requires a complaint with enough factual matter (taken as
true) to suggest’ the required element.” Phillips, 515 F.3d at 234, (quoting Twombly, 127
S. Ct. at 1965). Stated differently, the “[f]actual allegations [of the complaint] must be
enough to raise a right to relief above the speculative level.” Id. See also Wilkerson v.
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New Media Technology Charter School, Inc., 522 F.3d 315, 321 (3d Cir. 2008)
(allegations of the complaint must plausibly suggest that complainant is entitled to relief).
Although Zimmer’s complaint states that he is white, that one or more of his
supervisors was black, and that he was “abruptly terminated,” the complaint does not
contain factual matter that would plausibly suggest that he was terminated on the basis of
his race1 or as retaliation for protected activity. We agree with the District Court that
Zimmer’s complaint failed to state a claim upon which relief may be granted, and we do
not fault the District Court for failing to wade through the over 450 pages of attachments
to attempt to discern Zimmer’s claims. We will therefore affirm the judgment of the
District Court.2
1
Although Zimmer’s initial complaint also mentioned discrimination on the basis of
age, the amended complaint does not contain any allegation relating to age.
2
Zimmer’s motion for appointment of counsel is denied as moot.
4