PHILADELPHIA – A panel of appellate judges have ruled to affirm a trial court ruling to dismiss a man’s second amendment complaint in a federal discrimination litigation.

On Jan. 12, judges D. Michael Fisher, L. Felipe Restrepo and Anthony J. Scirica upheld the dismissal of a complaint with prejudice by the U.S. District Court for the Eastern District of Pennsylvania from plaintiff Tyrone K. White against defendant Bethesda Project, Inc. (BPI).

White used a form complaint for employment discrimination litigation to sued BPI in federal court for harassment and racial discrimination. However, the complaint’s narrative portion suggested White used the wrong form, as his claims appeared to allege BPI – operator of a Philadelphia homeless shelter – “failed to safeguard White’s medical records during his stay, forged White’s signature on paperwork submitted to the Philadelphia Housing Authority and removed White from its shelter in retaliation for his complaints about harassment.”

The District Court dismissed his complaint under 28 U.S.C. Section 1915(e)(2)(B)(ii) for failure to comply with Rule 8 of the Federal Rules of Civil Procedure, which “requires a statement of claim to be short, plain, and indicative of a right to relief.” The District Court gave White 30 days to cure that pleading defect.

White’s second version complaint was “substantively different” from the original, and alleged BPI case managers “deliberately gave” and “refused to provide” to White a Vulnerability Index Survey Consent Form. Documents which White included to his amended complaint included a decision from the Philadelphia Commission on Human Relations, refusing to reopen White’s case against BPI for, among other things, forced relocation.

As the District Court once again invoked 28 U.S.C. Section 1915(e)(2)(B)(ii), the Court dismissed White’s amended complaint, but gave him leave to amend it a second time.

“The totality of allegations in White’s latest complaint was: Hilary Coulter (a BPI case manager) ‘incorrectly signed a name very similar to [White’s]’ and instructed Geoffrey Ng (her supervisor) to illegally conduct a Vulnerability Index Survey, which Virginia Wilhoff (another BPI case manager) failed to ‘reconcile.’ Elsewhere in the pleading, White cited the Fourteenth Amendment, sought damages for ‘discrimination,’ and hand-copied a disclaimer used by the U.S. Department of Housing and Urban Development,” the Third Circuit said.

The District Court dismissed White’s second amended complaint with prejudice because while it appeared to invoke Section 1983 and the Fair Housing Act (FHA), the Court added it was “not clear from the complaint how the defendant’s actions violated any federal statute or how those actions could be the product of illegal discrimination.”

The District Court determined further leave to amend would be futile, leading White to appeal to the Third Circuit.

The appellate court said though White argues he should have been provided a third attempt to amend his complaint, he made no official request to that end and clarified the suit concerns the FHA and cites a HUD regulation which “prohibits disability discrimination with respect to the sale or rental of a “dwelling.”

“White falls far short of providing sufficient factual material for a hypothetical third amended complaint that, accepted as true, shows an entitlement to relief. We will thus affirm, concluding that the District Court neither erred in dismissing White’s second amended complaint under Section 1915(e)(2)(B)(ii) nor abused its discretion in denying further leave to amend,” the Third Circuit said.

U.S. Court of Appeals for the Third Circuit case 16-3502

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-02309

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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