United States District Court, D. New Jersey
June 3, 2005.
LOUIS PAUL TOSCANO, Plaintiff,
AT&T CORPORATION, et al., Defendants.
The opinion of the court was delivered by: MARY COOPER, District Judge
THIS MATTER ARISES on the (1) in-forma-pauperis application
pursuant to 28 U.S.C. § 1915, and (2) motion for assignment of
pro bono counsel, by the plaintiff pro se, Louis Paul
Toscano. This appears to be an action against defendants
identified as AT&T Corporation ("AT&T"), Connecticut General Life
Insurance Company ("CGL"), Horizon Blue Cross & Blue Shield of
New Jersey ("BCBS"), Magellan Health Services ("MHS"),
Communications Workers of America Local 1058 ("CWA"), and the New
Jersey Department of the Public Advocate to recover damages for
discrimination. The Court will address the application and motion
before reviewing the complaint's sufficiency. See Roman v.
Jeffes, 904 F.2d 192, 194 n. 1 (3d Cir. 1990).
Toscano states he has received (1) $5,544 in
long-term-disability payments, (2) $11,011 in social security
payments, and (3) $220 in interest income. (App., at 1-2.) He
also states he owns (1) five shares of AT&T stock and (2) a 2003 Honda Element.
(Id. at 2.) He asserts that his "expenses almost always exceed
The responses as to payments and income may be based on his
"2004 tax return" a handwritten notation on the application
(id. at 1) but that is not clear. It is also not clear
whether these are the total payments and income for all of 2004
and, if so, whether he has received or expects to receive
payments in 2005.
The Court intends to deny the application. The Court is
authorized to do so when a plaintiff fails to reveal entitlement
to in-forma-pauperis relief. See Spence v. Cmty. Life
Improv., No. 03-3406, 2003 WL 21500007, at *1 (E.D. Pa. June 26,
2003); Daniels v. County of Media, No. 03-377, 2003 WL
21294910, at *1 (E.D. Pa. Feb. 6, 2003); White v. Carollo, No.
01-4553, 2001 WL 1159845, at *1 (E.D. Pa. Sept. 13, 2001).
The Court cannot determine from the application if Toscano has
the financial means to pay the filing fee because his answers are
incomplete and unclear. In any event, assuming his 2005 income is
in line with what appears to be his 2004 income, and as he is
able to maintain a late-model automobile, he is not entitled to
this relief. He is not entitled to such relief merely because his
expenses exceed his income. His motion for assignment of pro
bono counsel also will be denied. THE COMPLAINT
The Court may (1) review the complaint, and (2) direct sua
sponte that it not be filed if it is frivolous, or fails to
state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(i)-(ii). See Mariani v. United States,
212 F.3d 761, 769 (3d Cir. 2000).
I. EEOC Charge, EEOC Notice, & Previous Civil Action
Toscano has submitted copies of a charge he filed with the
Equal Employment Opportunity Commission ("EEOC") and a resulting
EEOC notice. In addition, he mentions a previous federal action
in his papers. The Court is able to discern the following from
those documents and the docket for the previous federal action.
Toscano worked for AT&T until 1992, and has received longterm
disability payments since that time for "behavioral health
problems." (2-24-05 EEOC Charge.) He became involved in a dispute
in 2001 against, among others, CGL concerning his benefits.
(See Toscano v. Cigna Corp., D.N.J. Dkt. No. 01-3669 (GEB)).
That action was settled in 2001. (See id., dkt. entry nos.
Toscano filed an EEOC charge on February 24, 2005, against
AT&T, alleging discrimination based on race, religion,
retaliation, and disability. (2-24-05 EEOC Charge.) The EEOC
denied the charge as untimely in March 2005. (3-15-05 EEOC Not.) II. Attachment
Toscano has submitted in addition to a form complaint a
seventeen-page, single-spaced attachment, which apparently sets
forth his claims against the defendants ("Attachment"). The Court
is unable to discern exactly what he is claiming as to each
defendant. The Attachment presents (1) a hodgepodge of seemingly
unconnected events, and (2) few, if any, dates for those events.
Toscano fails to assert any cognizable cause of action in support
of his claims.
III. Complaint Not To Be Filed
Toscano, for the reasons stated above, fails to give "fair
notice of what [his] claim is and the grounds upon which it
rests," and thus comply with minimum pleading standards. Conley
v. Gibson, 355 U.S. 41, 47 (1957). See Fed.R.Civ.P. 8(a),
The action, in any event, appears to be time-barred. Toscano's
employment at AT&T ceased in 1992. The statute of limitations as
to any cause of action the Court can discern e.g., under Title VII or the Americans with Disabilities Act
("ADA") expired long ago. See Verdin v. Weeks Marine, No.
03-4571, 2005 WL 357006, at *2-*3 (3d Cir. Feb. 16, 2005)
(concerning limitations period under Title VII); Zdziech v.
DaimlerChrysler Corp., No. 03-2953, 2004 WL 2203979, at *1 (3d
Cir. Sept. 30, 2004) (concerning limitations period under ADA).
Although the statute of limitations is an affirmative defense
subject to waiver by a defendant, it may be considered sua
sponte when a court screens a complaint that is filed (1) by a
plaintiff pro se, and (2) in conjunction with an
in-forma-pauperis application. Bieregu v. Ashcroft,
259 F.Supp.2d 342, 355 n. 11 (D.N.J. 2003); Johnstone v. United
States, 980 F.Supp. 148, 153-54 (E.D. Pa. 1997).*fn2
It also appears that the claims against CGL and perhaps BCBS
and MHS concern his disability benefits, and thus may be barred
due to the settlement of the previous federal action by the
doctrines of (1) res judicata, also known as claim preclusion,
and (2) collateral estoppel, also known as issue preclusion.
Sibert v. Phelan, 901 F.Supp. 183, 186 (D.N.J. 1995)
(discussing elements of res judicata); Bd. of Tr. of Trucking
Em'ees of N. Jersey Welfare Fund v. Centra, 983 F.2d 495, 505
(3d Cir. 1992) (discussing elements of collateral estoppel). But the Court is
unable to make a definitive determination thereon, given the
rambling nature of the Attachment.
The Court thus concludes that the complaint is frivolous and
fails to state a claim on which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B)(i)-(ii). The Court will direct the Clerk
of the Court to not file the complaint and designate the action
as closed. For good cause appearing, an appropriate order and
judgment will be issued.