ALD-233                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-3630
                                  ___________

                         JUSTIN MICHAEL CREDICO,
                                         Appellant

                                        v.

    UNKNOWN EMPLOYEE OF THE HOUSTON FBI FORFEITURE UNIT,
              (INDIVIDUAL AND OFFICIAL CAPACITY);
  ANY OTHER UNKNOWN DOJ AGENCY WHICH MAY BE DISCOVERABLE,
             (INDIVIDUAL AND OFFICIAL CAPACITIES)
                ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                           (D.C. Civil No. 13-cv-4117)
                   District Judge: Honorable Juan R. Sanchez
                  ____________________________________

      Submitted 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
                                 May 15, 2014
      Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                          (Opinion filed: May 30, 2014)
                                   _________

                                   OPINION
                                   _________

PER CURIAM
       Justin Credico appeals the District Court’s orders dismissing his complaint for

failure to state a claim and denying his motion for reconsideration of that order. For the

reasons below, we will dismiss the appeal as frivolous.

       In his complaint, Credico alleged that he had called the FBI in Texas to discuss the

arrest of the group spokesman of a group of computer hackers. He claimed that the agent

he spoke to called him an “Israeli-Iranian bitch nigger.” He alleged racial animus, racial

discrimination, and negligent infliction of emotional distress. The District Court

dismissed the complaint before service pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim. Credico filed a motion for reconsideration which the District

Court denied. Credico then filed a notice of appeal.

       Because Credico is proceeding in forma pauperis on this appeal, we must analyze

his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under

§ 1915(e)(2)(B), we must dismiss the appeal if the action (i) is frivolous or malicious, (ii)

fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages

from a defendant with immunity. An action or appeal can be frivolous for either legal or

factual reasons. Neitzke v. Williams, 

, 325 (1989).

       While the FBI agent’s alleged use of racially derogatory language was

inappropriate, it was not so pervasive or severe that it rose to the level of a violation of

the Constitution. See e.g., Blades v. Schuetzle, 

, 805 (8th Cir. 2002);

Chavez v. Ill. State Police, 

, 646 (7th Cir. 2001); Williams v. Bramer, 

, 706 (5th Cir. 1999).

                                               2
       Whether analyzed under Pennsylvania law or Texas law, Credico’s claim of

negligent infliction of emotional distress fails. In Pennsylvania, a claim of negligent

infliction of emotional distress is limited to situations in which: (1) the defendant owed

the plaintiff a fiduciary or contractual duty; (2) the plaintiff was subjected to a physical

impact; (3) the plaintiff reasonably experienced a fear of impending physical injury; or

(4) the plaintiff observed a tortious injury to a close relative. Weiley v. Albert Einstein

Medical Center, 

, 217 (Pa. Super. 2012). None of these elements is present

in this case. There is no cause of action for negligent infliction of emotional distress

under Texas law. Boyles v. Kerr, 

, 597 (Tex. 1993). 1

       For the above reasons, as well as those set forth by the District Court, we conclude

that the appeal is frivolous. Accordingly, we will dismiss the appeal pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).




1
  To the extent that Credico sought to raise claims under the Federal Tort Claims Act or
for intentional infliction of emotional distress, we agree with the District Court’s reasons
for holding that Credico fails to state a claim.
                                               3