                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2005

Foster v. Myers
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1101




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Recommended Citation
"Foster v. Myers" (2005). 2005 Decisions. Paper 945.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/945


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                                                      NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              NO. 05-1101
                           ________________

                           JAMES E. FOSTER,

                                     Appellant

                                      v.


                 THOMAS L. MYERS; DAVID SCOTT;
                  HOMER FLOYD; JOSEPH ADLER;
                  TRENT HARGROVE, Esq.; JOAN D.
                   GMITTER; MARIE M. TOMASSO;
                 ROMINGER & BAYLEY LAW FIRM
               ____________________________________

              On Appeal From the United States District Court
                   For the Middle District of Pennsylvania
                       (M.D. Pa. Civ. No. 04-cv-01617)
              District Judge: Honorable Christopher C. Conner
              _______________________________________

                Submitted Under Third Circuit LAR 34.1(a)
                            JUNE 24, 2005

       Before: RENDELL, AMBRO AND FUENTES, CIRCUIT JUDGES

                           (Filed June 29, 2005)

                       _______________________

                              OPINION
                       _______________________

PER CURIAM.
       In July 2004, James Foster filed a pro se civil rights Complaint, which was

amended twice, in which he named the law firm of Rominger & Bayley and individuals

apparently employed by the Pennsylvania Human Rights Commission, the Governor’s

Office of General Counsel, and the Equal Employment Opportunity Commission, as

defendants. It appears from the Second Amended Complaint (referred to as the

“Amended Complaint”) that Foster believes that the defendants participated in a

conspiracy to publish false information about him through a database maintained by the

Pennsylvania Department of Labor and Industry (“DOLI”) that is accessible to

prospective employers. He believes that the publication of this information has prevented

him from obtaining employment. He alleged that the defendants were engaged in the

same conspiracy as the defendants named in a related civil case, Foster v. Pa. Human

Relations Comm’n, Civ. A. No. 03-01890. He claims that the defendants “interacted and

conspired in an effort to conceal facts and deny information by impeding, hindering,

misleading, misinforming, misdirecting and misrepresenting laws in order to confuse and

delay Plaintiff’s cause of action to redress the courts.” Foster seeks damages.

       The District Court granted Foster’s motion to proceed in forma pauperis and

dismissed sua sponte the Amended Complaint as frivolous pursuant to 28 U.S.C. §

1915(e)(2). The District Court found that Foster’s two prior civil actions, Foster v. Pa.

Human Relations Comm’n, Civ. A. No. 03-01890 (M.D. Pa. 2003) (“Foster I”), and

Foster v. Pa. Dep’t of Labor & Indus., Civ. A. No. 04-01616 (M.D. Pa. 2004) (“Foster

II”) alleged that DOLI and other named defendants secretly maintain a “blacklist”
database containing defamatory information on employees labeled as troublemakers by

employers. The District Court found that the Amended Complaint did not aver any cause

of action or theory of liability different from the prior civil actions. The District Court

concluded that the only difference between the Amended Complaint and Foster I, in

particular, was that Foster had added new defendants, all of whom were discussed in the

prior case. The District Court noted that Foster I was dismissed at summary judgment

because he had no documentary or testimonial evidence to support his allegations. Based

on the fact that the Amended Complaint essentially reiterated the unsupported conspiracy

allegations in Foster I that were dismissed at summary judgment, the District Court held

that the Amended Complaint was wholly incredible and clearly baseless. Foster timely

appealed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of

review of the District Court’s dismissal under § 1915(e)(2) is plenary. Like the District

Court, we must accept as true the factual allegations in the Amended Complaint and all

reasonable inferences that can be drawn from them. Nami v. Fauver, 82 F.3d 63, 65 (3d

Cir. 1996).

       To the extent that the Amended Complaint names the same defendants as in Foster

I or names defendants in privity with those named in Foster I, we conclude that claim

preclusion bars Foster’s claims because the claims were actually litigated or could have

been litigated in a prior action. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,

398 (1981); Crossroads Cogeneration Corp. v. Orange & Rockland Utils., 159 F.3d 129,
139 (3d Cir. 1998). As for the newly named defendants, we hold that Foster has failed to

state a civil rights conspiracy claim. Assuming the truth of Foster’s allegations, as we

must, we find no facts from which we can reasonably infer discriminatory animus for the

events in question or of an agreement among the defendants to deprive Foster of his

constitutional rights. Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir. 1999).

Thus, the District Court properly dismissed the Complaint with prejudice.

       Accordingly, we will affirm the judgment of the District Court.
