             Case: 14-13119    Date Filed: 12/30/2014   Page: 1 of 6


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-13119
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 1:14-cv-22008-UU


KENNETH D. HUMPHREY,
Former Customs and Border Protection Officer,

                                                               Plaintiff-Appellant,

                                     versus

SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY,
US Customs and Border Protection,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                              (December 30, 2014)

Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Kenneth D. Humphrey, proceeding pro se, appeals the district court’s sua

sponte dismissal of his employment discrimination suit for frivolity and failure to

state a claim upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(i)

and (ii). Humphrey contends his complaint adequately alleged that he had engaged

in protected civil rights activity. Specifically, he asserts the United States

Department of Homeland Security (DHS) took adverse employment action against

him motivated by discriminatory retaliation. He further argues that, under Title

VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., his

complaint alleged disparate treatment in DHS’s failure to promote him. After

review, 1 we vacate and remand.

        To withstand dismissal, a plaintiff must plead sufficient facts to state a

claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A court “shall dismiss” a case filed in forma pauperis if the court determines that

the complaint “is frivolous or malicious” or “fails to state a claim on which relief

may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii). “A claim is frivolous if it is

       1
         We review de novo the district court’s sua sponte dismissal for failure to state a claim
under § 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true. Hughes v. Lott, 350
F.3d 1157, 1159-60 (11th Cir. 2003). We review for an abuse of discretion the district court’s
sua sponte dismissal for frivolity under § 1915(e)(2)(B)(i). Id. at 1160.
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without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349

(11th Cir. 2001). However, “[p]ro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

When it appears that a pro se plaintiff’s complaint, if more carefully drafted, might

state a claim, the district court should give the pro se plaintiff an opportunity to

amend his complaint instead of dismissing it. Bank v. Pitt, 928 F.2d 1108, 1112

(11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp.,

314 F.3d 541, 542 (11th Cir. 2002) (en banc).2

       The district court erred in dismissing Humphrey’s pro se complaint for

failure to state a claim. The district court analyzed Humphrey’s claims in Counts 1

and 2 under 42 U.S.C. § 1983, even though a plaintiff may not bring a § 1983

claim against a federal actor acting under the color of federal law. See Dist. of

Columbia v. Carter, 409 U.S. 418, 424-25 (1973) (explaining §1983 does not

apply to federal actors acting under color of federal law). While Humphrey cited

§ 1983 as a source of jurisdiction, he did not expressly state he was bringing

Counts 1 and 2 under § 1983. Construing Humphrey’s pro se complaint liberally,

the district court should have analyzed his claims under Title VII. Tannenbaum,


       2
           In Wagner, we overruled Bank with respect to counseled plaintiffs who failed to request
leave to amend, but noted that our decision did not disturb Bank’s holding with respect to pro se
litigants. Wagner, 314 F.3d at 542 & n.1.
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148 F.3d at 1263. In his complaint, Humphrey requested declaratory relief under

Title VII. Even if he may not have expressly named them as such in his complaint,

he attempted in substance to set forth Title VII claims of retaliation and disparate

treatment.

      Specifically, as to retaliation, he alleged he filed a charge with the EEOC,

and that, as a result, DHS retaliated against him by demoting him “to the lowest

status, and worst work settings.” See Dixon v. The Hallmark Cos., Inc., 627 F.3d

849, 856 (11th Cir. 2010) (stating a prima facie case of Title VII retaliation

requires the plaintiff to show that (1) he engaged in protected activity, (2) he

suffered a materially adverse action, and (3) a causal connection existed between

the activity and the adverse action).

      As to disparate treatment, Humphrey alleged that, because he was “[b]lack,

[b]rown and [o]lder,” he was “subjected to receiving 10 times the punishments and

1/10 of the rewards given” to other employees. He alleged he had suffered an

adverse employment action in the form of “a humiliating demotion, an extreme cut

in earnings and a transfer in position to continued unendurable working

assignments,” as well as the denial of “bidding requests” and vacation leave.

Moreover, he asserted his “Supervisory Test scores show[ed] very high

qualifications for promotions,” but that management gave promotions and special

placements “repeatedly to under 40 and non-black or brown personnel with less


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ratings.” Thus, liberally construing his complaint, he appears to have alleged a

prima facie case of disparate treatment under Title VII. Maynard v. Bd. of Regents

of the Div. of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.

2003) (stating a prima facie case of Title VII discrimination requires a plaintiff to

show that “(1) he is a member of a protected class; (2) he was qualified for the

position; (3) he suffered an adverse employment action; and (4) he was replaced by

a person outside his protected class or was treated less favorably than a similarly-

situated individual outside his protected class”).

      As to Humphrey’s 42 U.S.C. § 1985 claim in Count 3, the district court did

not err in concluding that he had failed to allege how DHS “conspired to deprive

him of the equal protection of the laws or due course of justice.” See Childree v.

UAP/CHEM, Inc., 92 F.3d 1140, 1146-47 (11th Cir. 1996) (stating the elements of

a cause of action under § 1985(3) are: “(1) a conspiracy, (2) for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; and

(3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in

his person or property or deprived of any right or privilege of a citizen of the

United States”). However, Humphrey’s allegations regarding his treatment by

DHS should have afforded him an opportunity to amend his complaint instead of a

sua sponte dismissal. See Bank, 928 F.2d at 1112.


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      The district court also abused its discretion in alternatively dismissing

Humphrey’s complaint as frivolous. The district court concluded Humphrey’s

claims lacked “any basis in law and fact as it relates to” Jeh Johnson, the current

DHS secretary, and Janet Napolitano, the former DHS secretary. In this analysis,

however, the district court failed to liberally construe Humphrey’s pro se

complaint. See Tannenbaum, 148 F.3d at 1263. If the district court had construed

Humphrey’s complaint as bringing claims under Title VII, the Secretary of DHS,

in his or her official capacity, would have been the proper defendant for a suit

against DHS, Humphrey’s former employer. Canino v. U.S. E.E.O.C., 707 F.2d

468, 472 (11th Cir. 1983) (stating when suit is brought under Title VII against a

federal agency, “the head of the agency involved is the only appropriate

defendant”). If the district court found that Humphrey’s complaint was unclear as

to whether he was suing Johnson and Napolitano in their individual or official

capacities, the court should have allowed Humphrey to amend his pro se

complaint. See Bank, 928 F.2d at 1112. Thus, construing Humphrey’s complaint

liberally, it was not without arguable merit in law or fact, and should not have been

dismissed as frivolous. See Bilal, 251 F.3d at 1349.

      VACATED AND REMANDED.




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