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- 083 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3778

___________ MR. G. JACKSON,

Appellant

v. MR. COLEMAN BROWN; MR. STEVE COOPER; TRUE BLUE; LABOR READY INC., et al

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 11

- cv
- 00702) Magistrate Judge: Honorable Arthur J. Schwab

____________________________________ Sub mitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 January 6, 2012
Before: FUENTES, GREENAWAY, JR., AND STAPLETON , Circuit Judges

(Opinion filed : January 31, 2012 )

_________ OPI NION

_________ PER CURIAM

. Gregory Jackson filed a pro se complaint alleging that he worked for various temporary employment agencies, including defendant Labor Ready , from 2001 until
2010 . D uring th is time , Jackson c ontends , “ he relentlessly sought re velation and2

resolution of the mass murderous lethal environmental crimes that he has titled „ The
Phantom Evil. ‟” Compl. at 1 ( emphasis omitted ). Jackson allegedly had “discovered that a deadly peril was being allowed to never cease inflicting fatalities and health hazards on mass millions of people in the public at large [.] ” Id. Jackson ‟s efforts to expose th is
“Phantom Evil” were not well received , see id. at 2

- 3, and he contends that “ conflict”
over his efforts led to termination of his e mployment

. Id. at 2. Jackson claims that “his employment terminated for malicious and discriminatory reasons that [were] intended to deprive him of the cash flow needed to successfully litigate court ordered public disclose [sic] of the Phantom Evil.” Id. at 3. Ja ckson seeks damages from the d efendant s (who are allegedly “employees of the aforementioned labor agencies or employees of clients,”
id. at 4), claiming that he was the victim of discrimination, “ obstructed justice,” and a “cover up and censorship .

. . by clients of Labor Ready” and others. Id. at 3

- 4. The District Court deferred ruling on Jackson ‟s motion to proceed in forma pauperis (IFP) and directed him to file an amended complaint, noting that its review
indicated that Ja ckson‟s claims as pleaded were subject t o dismissal as frivolous. The
District Court entered a separate order directing Jackson to communicate with the court exclusively by written motion , citing Jackson‟s “prior improper contacts with the United States Court of Appeals for the Fi fth Circuit.” Docket # 6 at 1. Jackson responded by filing a “ M otion for C ourt C ommunication S tatus and [IFP] H earing , ” docket # 7, arguing that he is the victim of “abuses by clerks of this court and other courts” seeking

to s uppress information about t he “Phantom Evil.” Id. at 1. Jackson did not file an3

amended complaint as directed.
The District Court dismissed the complaint under 28 U.S.C. § 1915(e)(2) (B)(i) , concluding that Jackson‟s allegations “fall within the fanciful, delusional, and/or
frivol ous categories.” Docket # 8 at 3. The District Court denied Jackson‟s motion to proceed IFP as “moot.” Jackson timely filed this appeal.
We have jurisd iction under 28 U.S.C. § 1291. Because Jackson has been granted
leave to proceed IFP on appeal , we must d etermine whether th e appeal is subject to
dismissal as frivolous

. See 28 U.S.C. § 1915(e)(2)(B)(i). A n appeal is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams , 490 U.S. 319, 325 (1989). After a review of the record, w e conclude that this appeal must be dismissed as frivolous.
Section 1915(e) (2)(B)(i) “ authorizes the dismissal of a [n IFP] complaint as factually frivolous if a court determines that the contentions are clearly baseless. ”
Deutsch v. United States , 67 F.3 d 1080, 1085 (3d Cir. 1995)

. Here, the crux of Jackson ‟s complaint is that he experienced various wrongs ( e.g., termination of his employment, a “cover up and censorship ”) due to his efforts to expose unspecified “ mass murderous
lethal environmental crime s ”

– the so

- called “Phantom Evil

. ” Because Jackson‟s claims for relief, if any , against the named defendants are plainly entwined with the existence of
th is “Phantom Evil,” the District Court properly determined that the complaint is fanciful
and baseless

. “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez , 504 U.S.4

25, 33 (1992). Jackson did not amend his complaint to cure th is deficiency in pleading despite being afforded an opportunity to do so. 1 On this record, his complaint was properly dismissed for frivolous ness
. 2

In s um , this appeal has no arguable basis i n law or fact and will be dismiss ed for
that reason under § 1915(e)(2)(B)(i)

.

1 Jackson‟s complaint is also legally frivolous insofar he seeks relief under 42 U.S.C. § 1983 for “negligence and malicious disregard of his constitutional rights.” Compl. at 1. “ To prevail on a § 1983 claim, a plaintiff must allege that the defendant acted under color of state law, in other words, that there was state action. ” Great Western Mining & Mineral Co. v. Fox Rothschild LLP , 615 F.3d 159, 175

- 76 (3d Cir. 2010) , cert . denied , 131 S. Ct. 1798 (2011). Jackson names private individuals and entities as defendants, and there is no alleged state action.

2 W e note the District Court‟s decision to deny as “moot” Jackson‟s motion to proceed IFP. It is settled that a distric t court must use “a two

- step analysis in evaluating motions to proceed under § 1915. First, the district court evaluates a litigant‟s financial status and determines whether [he] is eligible to proceed [IFP] under § 1915(a). Second, the court assesses th e complaint under § 1915([e]) to determine whether it is frivolous.” Roman v. Jeffes , 904 F.2d 192, 194 (3d Cir. 1990). I f the litigant is indigent , IFP status ordinarily should be granted. Gibbs v. Ryan , 160 F.3d 160, 161 n.1 (3d Cir. 1998). As a proc edural matter, therefore, the District Court should have addressed Jackson‟s IFP motion before dismiss ing the complaint as frivolous, rather than deny the IFP motion as moot after dismissal. This procedural misstep notwithstanding, the District Court was undoubtedly correct in its determination regarding the frivolity of Jackson‟s complaint.