                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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CLD-288                                                      NOT PRECEDENTIAL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.



                                              3
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
