Cohen v. Whitley

[4] UNITED STATES DISTRICT COURT [5] DISTRICT OF NEVADA [6] * * * [7] STEVEN COHEN, Case No. 2:19-cv-01033-APG-GWF [8] Plaintiff, 9 v. ORDER 10 RICHARD WHITLEY, et al., Defendants. [11] 12 This matter is before the Court on Plaintiff’s Application for Leave to Proceed in Forma 13 Pauperis (ECF No. 3) filed on June 24, 2019 and Complaint (ECF No. 1) filed on June 17, 2019. 14 BACKGROUND 15 Plaintiff alleges that he was wrongfully terminated from his employment in violation of 16 Title II of the Americans with Disabilities Act. Plaintiff alleges that Defendants terminated him 17 for requesting a reasonable accommodation. 18 DISCUSSION 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff initially filed this instant action and paid the requisite $400.00 filing fee. ECF 21 No. 1-2. Subsequently, he filed his application to proceed in forma pauperis (ECF No. 3) as 22 required by 28 U.S.C. § 1915 (a). Reviewing Plaintiff’s financial affidavit pursuant to 28 U.S.C. 23 §1915, the Court finds that Plaintiff is unable to pre-pay any additional filing fees. However, the 24 initial $400.00 pre-paid filing fee shall not be refunded. Accordingly, Plaintiff’s request to 25 proceed in forma pauperis is granted henceforth. 26 II. Screening the Complaint 27 Upon granting a request to proceed in forma pauperis, a court must additionally screen a 1 dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which 2 relief may be granted, or seeks monetary relief from a defendant/third party plaintiff who is 3 immune from such relief. 28 U.S.C. § 1915 (e)(2). A complaint, or portion thereof, should be 4 dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a 5 doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to 6 relief.” Buckey v. Los Angeles, 968 F.2d 791 , 794 (9th Cir. 1992). A complaint may be 7 dismissed as frivolous if it is premised on a nonexistent legal interest or delusional factual 8 scenario. Neitzke v. Williams, 490 U.S. 319 , 327–28 (1989). Moreover, “a finding of factual 9 frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly 10 incredible, whether or not there are judicially noticeable facts available to contradict them.” 11 Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 12 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing 13 its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be 14 cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832 16 F.2d 1132 , 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik 17 v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be 18 used to supply an essential element of the claim absent from the complaint. Bruns v. Nat’l 19 Credit Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Board of Regents, 673 20 F.2d 266, 268 (9th Cir. 1982)). 21 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 22 complaint for failure to state a claim upon which relief can be granted. Review under Rule 23 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of 24 America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short 25 and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 26 8(a)(2); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not 27 require detailed factual allegations, it demands “more than labels and conclusions” or a 1 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true 2 all well-pled factual allegations contained in the complaint, but the same requirement does not 3 apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of 4 action, supported only by conclusory allegations, do not suffice. Id. at 1949. Secondly, where 5 the claims in the complaint have not crossed the line from plausible to conceivable, the 6 complaint should be dismissed. Twombly, 550 U.S. at 570 . 7 III. Instant Complaint 8 As a preliminary matter, Plaintiff’s complaint alleges claims of wrongful termination, and 9 discrimination based on disability. He references an Equal Employment Opportunity 10 Commission (“EEOC”) investigation but failed to provide the requisite Notice of Right to Sue 11 letter issued by the Commission. Thus, the Court will issue this Order as if Plaintiff has 12 exhausted his administrative remedies. Plaintiff, however, must provide proof of such as 13 detailed more fully below. 14 The ADA prohibits certain employers from discriminating against individuals on the 15 basis of their disabilities. 42 U.S.C. § 12112 (a). To qualify for relief under the ADA, a plaintiff 16 must show that “(1) she is a disabled person within the meaning of the statute; (2) she is 17 qualified, with or without reasonable accommodation, to perform the essential functions of the 18 job she holds or seeks; and (3) that she suffered an adverse employment action because of her 19 disability.” Puckett v. Park Place Entm't Corp., 332 F.Supp.2d 1349, 1352 (D. Nev. 2004) 20 (citing Braunling v. Countrywide Home Loans, Inc., 220 F.33d 1154, 1156 (9th Cir. 2000)). A 21 disability is a physical or mental impairment that substantially limits one or more major life 22 activities, a record of such an impairment, or being regarded as having such an impairment. See [23] 42 U.S.C. § 12102 (1)(A)-(C). 24 It appears that Plaintiff seeks to pursue claims of discrimination based on his disability. 25 Although Plaintiff provides some factual description of the basis of his claim, his complaint does 26 not sufficiently allege the legal theory under which he is pursuing his claim. For example, 27 Plaintiff makes multiple references in his complaint to the EEOC record, but the Court does not 1 specify what disability he suffers from nor does he adequately assert that an adverse employment 2 action occurred as a result of his disability. Therefore, the Court dismisses Plaintiff’s complaint, 3 with leave to amend to correct the noted deficiencies. Plaintiff is advised that he must provide 4 the court with a proper factual and legal basis for his claims in his amended complaint. 5 If Plaintiff elects to proceed in this action by filing an amended complaint, she is informed 6 that the court cannot refer to a prior pleading in order to make her amended complaint complete. 7 Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any 8 prior pleading. This is because, as a general rule, an amended complaint supersedes the original 9 complaint. See Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see Loux v. Rhay, [10] 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended complaint, the original pleading 11 no longer serves any function in the case. Therefore, in an amended complaint, as in an original 12 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 13 Plaintiff is advised that litigation will not commence upon the filing of an amended complaint. 14 Rather, the Court will need to conduct an additional screening of the amended complaint pursuant 15 to 28 U.S.C. § 1915 (e). If Plaintiff fails to file an amended complaint or fails to cure the 16 deficiencies identified above, the Court will recommend that the complaint be dismissed with 17 prejudice. Accordingly, 18 IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in Forma Pauperis is 19 granted. Plaintiff, however, shall not be entitled to receive a refund of the initial filing fee 20 previously paid, pursuant to 28 U.S.C. 1915(b)(2). 21 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to 22 conclusion without the necessity of prepayment of any additional fees or costs or the giving of 23 security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the 24 issuance of subpoenas at government expense. 25 IT IS FURTHER ORDERED that Plaintiff’s complaint be dismissed without prejudice 26 with leave to amend. Plaintiff shall have until August 30, 2019 to file an amended complaint 27 correcting the noted deficiencies. 1 || IT IS FURTHER ORDERED that Plaintiff shall have until August 30, 2019 to provide the Court 2 || with proof that he has exhausted all administrative remedies with the EEOC. 3 NOTICE 4 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 5 |} in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 6 || held that the courts of appeal may determine that an appeal has been waived due to the failure to 7 || file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit 8 || has also held that (1) failure to file objections within the specified time and (2) failure to properly 9 || address and brief the objectionable issues waives the right to appeal the District Court’s order 10 || and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153 , 11 |} 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch, Dist., 708 F.2d 452 , 454 (9th Cir. 1983). 12 Dated this 31st day of July, 2019. [13] GEORGE FOLEY, JR. 15 UNITED STATES MAGISTRATE JUDGE