Recinos v. Concerto Healthcare

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 TIFFANY RECINOS, CASE NO. 3:23-CV-5155-RJB 11 Plaintiff, ORDER RENOTING APPLICATION 12 v. TO PROCEED IN FORMA PAUPERIS 13 CONCERTO HEALTHCARE, 14 Defendant. [15] The District Court has referred Plaintiff’s pending Application to Proceed In Forma [16] Pauperis (“IFP”) and Proposed Complaint to United States Chief Magistrate Judge David W. [17] Christel pursuant to Amended General Order 11-22. On February 27, 2023, Plaintiff Tiffany [18] Recinos filed a proposed civil complaint and application to proceed in forma pauperis (“IFP”), [19] that is, without paying the filing fee for a civil case. See Dkt. 1.. [20] Standard for Granting Application for IFP. The district court may permit indigent [21] litigants to proceed IFP upon completion of a proper affidavit of indigency. See 28 U.S.C. § 22 1915(a). However, the court has broad discretion in denying an application to proceed IFP. [23] Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963), cert. denied 375 U.S. 845 (1963). [24] 1 Plaintiff’s Application to Proceed IFP. Plaintiff states that she is unemployed. See Dkt. 2 1, p. 1. Plaintiff receives $1,848 per month in disability, unemployment, workers compensation 3 or public assistance. Id. She has $200 in cash on hand, $200 in her checking account, and $8,000 4 in her savings account. Id. at p. 2. Plaintiff has no assets and states her monthly expenses vary. 5 Id. Plaintiff states she is “on disability for PTSD, otherwise unemployed.” Id. 6 Review of the Complaint. The Court has carefully reviewed the proposed complaint in 7 this matter. Because Plaintiff filed this proposed complaint pro se, the Court has construed the 8 pleadings liberally and has afforded Plaintiff the benefit of any doubt. See Karim-Panahi v. Los 9 Angeles Police Dep't, 839 F.2d 621 , 623 (9th Cir.1988). 10 In the proposed complaint, Plaintiff states Defendant Concerto terminated Plaintiff’s 11 employment in 2019 without just cause. Dkt. 1-1 at 4. She asserts that she had become a liability 12 because she was in three car accidents and had major eye surgery while employed from 201813 2019. Id. 14 Sua Sponte Dismissal – Standard on Rule 12 (b). Pursuant to Fed. R. Civ. P. 12(b), a 15 case may be dismissed for “(1) lack of subject matter jurisdiction; (2) lack of personal 16 jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) 17 failure to state a claim upon which relief can be granted; and (7) failure to join a party under 18 Rule 19.” Under Fed. R. Civ. P. 12b)(6), a federal court may dismiss a case sua sponte when it is 19 clear that the plaintiff has not stated a claim upon which relief may be granted. See Omar v. Sea20 Land Serv., Inc., 813 F.2d 986 , 991 (9th Cir.1987) (“A trial court may dismiss a claim sua sponte 21 under Fed. R. Civ. P. 12 (b)(6). Such a dismissal may be made without notice where the claimant 22 cannot possibly win relief.”). See also Mallard v. United States Dist. Court, 490 U.S. 296 , 30723 08 (1989) (there is little doubt a federal court would have the power to dismiss frivolous [24] 1 complaint sua sponte, even in absence of an express statutory provision). A complaint is 2 frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221 , 1228 3 (9th Cir. 1984). 4 Analysis of Plaintiff’s Claims. Plaintiff brings claims under Title VII of the Civil Rights 5 Act of 1964, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act of 1973. 6 Dkt. 1-1. Plaintiff's proposed complaint does not appear to adequately state a claim because the 7 claims alleged appear to be barred by her failure to: exhaust administrative remedies, timely file 8 this action, and provide non-conclusory allegations. 9 First, Plaintiff does not sufficiently allege that she exhausted her administrative remedies 10 prior to initiating this action. Plaintiff was required to file her claims with the Equal Employment 11 Opportunity Commission (“EEOC”) before bringing suit in this Court. See Jasch v. Potter, 302 12 F.3d 1092, 1094 (9th Cir. 2002) (EEOC charge required prior to initiating Title VII action); 13 Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (EEOC charge required prior to 14 initiating ADA action); Wilson v. MVM, Inc., 475 F.3d 166 , 173 (3rd Cir. 2007) (Rehabilitation 15 Act adopts Title VII procedures). Plaintiff states she received a Notice of Right to Sue letter in 16 2020. Dkt. 1-1, p. 8. Despite instructions to do so, she did not attach a copy of the Notice of 17 Right to Sue from the EEOC to the proposed complaint. Without a copy of the Notice of Right to 18 Sue letter, this Court cannot determine if it has subject matter jurisdiction over this matter. See 19 Arthur v. Whitman Cty., 24 F. Supp. 3d 1024, 1031 (E.D. Wash. 2014) (quoting B.K.B. v. Maui 20 Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002)) (“In order for a court to have subject matter 21 jurisdiction over a Title VII claim, an individual is required to exhaust his administrative 22 remedies by either ‘filing a timely charge with the EEOC, or the appropriate state agency, 23 thereby affording the agency an opportunity to investigate the charge.’”). Therefore, Plaintiff [24] 1 must attach a copy of the Notice of Right to Sue letter to any amended complaint filed in this 2 lawsuit. 3 Second, Plaintiff was required to file her claims with the EEOC within a specific period 4 following the time the unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1) (180 5 or 300-day period for Title VII, ADA, and Rehabilitation Act claims); 29 U.S.C. § 626 (d) (1806 day period for ADEA claims). Further still, Plaintiff was required to file her action within 90 7 days of receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. 8 §12117; 29 U.S.C. § 626 (e). Plaintiff states the unlawful employment action – her termination – 9 occurred in 2019. Dkt. 1-1, p. 6. She states she received the EEOC issued the right-to-sue letter 10 in 2020. Id. Even without specific dates, the allegations in the proposed complaint show the 11 claims are untimely. Plaintiff must show cause why this case should not be dismissed as 12 untimely. 13 Finally, Plaintiff has provided only conclusory allegations related to her alleged wrongful 14 termination. See Dkt. 1-1, p. 4. She has failed to provide clarity regarding the nature of her 15 claims and has not provided sufficient allegations to show what happened, when it happened, 16 who was involved, and how those acts violated her rights. As such, Plaintiff has not stated a 17 claim showing she is entitled to relief. See Iqbal, 556 U.S. at 678 (2009) (a pleading must be 18 more than an “unadorned, the-defendant-unlawfully-harmed-me accusation”); see also Twombly, 19 550 U.S. at 545 (to state a claim for relief, “[f]actual allegations must be enough to raise a right 20 to relief above the speculative level”). In sum, “the Court cannot glean what claims for relief 21 might lay hidden in the narration provided by [P]laintiff and it is [P]laintiff’s responsibility to 22 make each claim clear and provide only a short statement of facts supporting [each] claim.” 23 Henderson v. Scott, 2005 WL 1335220 , at *1 (E.D. Cal. May 4, 2005). [24] 1 Plaintiff is ordered to show cause why this case should not be dismissed for the reasons 2 articulated in this Order. Plaintiff is directed to file an amended complaint which complies with 3 Federal Rule of Civil Procedure 8 and corrects the deficiencies outlined in this Order. The 4 amended complaint should contain a single complaint that includes a short, plain statement 5 explaining the claims in this action. The amended complaint must also show this Court has 6 jurisdiction to hear this case and must explain why the statute of limitations has not run. 7 Leave to Amend. Unless it is absolutely clear that no amendment can cure the defect, a 8 pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend 9 prior to dismissal of the action. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). 10 While it appears any attempt by Plaintiff to amend the proposed complaint would be 11 futile, in an abundance of caution, the Court finds Plaintiff should be afforded an opportunity to 12 amend her proposed complaint to try to state a claim. Plaintiff’s proposed amended complaint, if 13 any, should be filed on or before April 27, 2023. 14 Decision on Application to Proceed IFP. A district court may deny leave to proceed in 15 forma pauperis at the outset if it appears from the face of the proposed complaint that the action 16 is frivolous or without merit. Minetti v. Port of Seattle, 152 F.3d 1113 (9th Cir. 1998) (quoting 17 Tripati v. First Nat'l Bank & Trust, 821 F. 2d 1368, 1370 (9th Cir. 1987)). 18 Based upon the above analysis of the deficiencies in the proposed complaint, the Court 19 finds it appropriate to re-note Plaintiff’s application to proceed IFP (Dkt. 1) to April 27, 2023. 20 Conclusion. If Plaintiff intends to pursue this action, she is directed to file response to 21 this Order and a proposed amended complaint on or before APRIL 27, 2023. If Plaintiff fails to 22 file an amended complaint or otherwise respond to this Order, the undersigned will recommend 23 that the Application to Proceed IFP be denied and that the case be closed. [24] 1 If Plaintiff submits an adequate complaint, the Court will further consider the Application 2 to Proceed IFP. The Clerk is directed to re-note the Application to Proceed IFP (Dkt. 1) for 3 consideration to APRIL 27, 2023. 4 Dated this 29th day of March, 2023. [5] A [6] David W. Christel Chief United States Magistrate Judge