Moore v. United Food and Commercial Workers 8 Golden State

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA [6] MICHAEL TROY MOORE, 7 Case No.: 2:20-cv-01911-RFB-NJK Plaintiff, 8 ORDER v. 9 [Docket No. 1] UNITED FOOD AND COMMERCIAL 10 WORKERS 8 GOLDEN STATE, et al., 11 Defendants. 12 Plaintiff is proceeding in this action pro se and has requested authority under 28. U.S.C. § 13 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a complaint. Docket 14 No. 1-1. 15 I. In Forma Pauperis Application 16 Plaintiff has submitted the affidavit required by § 1915(a). Docket No. 1. Plaintiff has 17 shown an inability to prepay fees and costs or give security for them. Accordingly, Plaintiff’s 18 request to proceed in forma pauperis under § 1915(a) is granted. 19 II. Screening Complaint 20 A. Standard 21 Upon granting an application to proceed in forma pauperis, courts screen the complaint. [22] 28 U.S.C. § 1915 (e). Section 1915(e) permits courts to dismiss a case if the action is legally 23 “frivolous or malicious,” the complaint fails to state a claim upon which relief may be granted, or 24 the plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). When a court dismisses a complaint under § 1915, the plaintiff should be given 26 leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from 27 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United 28 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 1 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 2 for failure to state a claim upon which relief can be granted.1 Review under Rule 12(b)(6) is 3 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719 , 723 4 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 5 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v. 6 Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, 7 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 8 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265 , 9 286 (1986)). The Court must accept as true all well-pled factual allegations contained in the 10 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679 . 11 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 12 not suffice. Id. at 678 . Additionally, where the claims in the complaint have not crossed the line 13 from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570 . 14 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 15 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 2010) (finding that liberal 16 construction of pro se pleadings is required after Twombly and Iqbal). “However, a liberal 17 interpretation of a civil rights complaint may not supply essential elements of the claim that were 18 not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 B. Analysis 20 Plaintiff asserts claims against two labor unions, two private individuals, and a family trust 21 (“Defendants”). Docket No. 1-1 at 1. Plaintiff’s claims arise out of allegations that Defendants 22 underreported the number of hours he worked for them, resulting in an incorrect calculation of his 23 pension benefits. Docket No. 1-1 at 2. Plaintiff alleges that, despite multiple requests over two 24 years, Defendants have withheld documents related to his pension benefits. Id. at 11. Plaintiff 25 further alleges that Defendants have prevented him from filing “for all pension(s) promised and 26 earned during his employment.” Id. at 13. Specifically, Plaintiff alleges that Defendants [27] 1 Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil 28 Procedure. 1 threatened to retaliate against him if he continues to pursue efforts to correct the calculation of his 2 pension benefits. Id. at 9, 13. Based on these allegations, Plaintiff asserts causes of action under 3 § 1983, the First Amendment, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 4 and the Employee Retirement Income Security Act (“ERISA”). Id. at 1, 9. 5 Plaintiff submits that Defendants’ actions constitute a § 1983 violation. Id. at 10, 13. “To 6 state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured 7 by the Constitution or laws of the United States was violated, and (2) that the alleged violation as 8 committed by a person acting under the color of State law.” Long v. Cty. of Los Angeles, 442 F.3d 9 1178, 1185 (9th Cir. 2006). Although private parties are generally not considered state actors, a 10 private party may bear liability for a constitutional deprivation under § 1983 where a plaintiff 11 demonstrates that “‘the conduct allegedly causing the deprivation of a federal right [was] fairly 12 attributable to the State.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) 13 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)); see also Quezambra v. United 14 Domestic Workers of Am. AFSCME Local 3930, 445 F. Supp. 3d 695 , 703 (C.D. Cal. 2020) 15 (“There is a general rule that unions are not state actors[.]”). Here, Plaintiff’s complaint fails to 16 allege that he suffered a constitutional deprivation. Moreover, Plaintiff fails to allege sufficient 17 facts to demonstrate that Defendants’ private conduct is attributable to the state. 18 Plaintiff further submits that Defendants’ conduct violated the First Amendment. Docket 19 No. 1-1 at 1, 5, 10, 13, 14. Private parties are generally not bound by the First Amendment, unless 20 the private party “has acted ‘in concert’ with the state ‘in effecting a particular deprivation of 21 constitutional right.”’ Belgau v. Inslee, 975 F.3d 940, 947 (9th Cir. 2020) (quoting Tsao, 698 F.3d 22 at 1140 ). In this case, Plaintiff fails to allege sufficient facts showing Defendants acted in concert 23 with the state to cause a constitutional deprivation. 24 Plaintiff also submits that Defendants engaged in conduct prohibited under RICO. Docket 25 No. 1-1 at 11. “The elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise 26 (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing injury to 27 plaintiff’s business or property.” Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 28 353, 361 (9th Cir. 2005). To establish a “pattern of racketeering activity,” a plaintiff must show 1 that a defendant committed two or more predicate acts, which create a threat of continuing criminal 2 activity. H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229 , 237–38 (1989). Here, Plaintiff alleges that 3 Defendants sent two threatening letters in response to his letters requesting an amicable resolution 4 of the underreported hours. Docket No. 1-1 at 8. Plaintiff’s complaint fails to plead sufficient 5 facts demonstrating that the content in the letters was criminal in nature. Further, it is unclear what 6 injury Plaintiff alleges he sustained because of Defendants’ letters. 7 Finally, Plaintiff submits that Defendants violated ERISA by withholding documents 8 pertaining to his pension benefits. Docket No. 1-1 at 1. 9, 11, 12, 16. ERISA permits a plaintiff 9 to file a civil action against the administrator of a plan for failure to produce requested information. [10] 29 U.S.C. § 1132 (c). ERISA requires the administrator of a plan to comply with a request for 11 certain information. Id. For instance, a party may request “the annual report, and documents 12 relating to the employee benefit plan including an updated summary plan description, the 13 bargaining agreement, trust agreement, or contract.” Id. To fully comply with this requirement, 14 the administrator must mail the requested information to the last known address of the requesting 15 party no later than thirty days after the request. Id. If the administrator fails to respond to the 16 requesting party with the information within thirty days, the administrator is liable to pay the 17 requesting party up to $100 per day from the date of the failure. Id. 18 Here, Plaintiff alleges that he requested all pension documents on September 24, 2018. 19 Docket No. 1-1 at 16. “The provisions of § 1132(c) are very specific regarding the exact 20 documents an administrator is required to provide to a participant or beneficiary upon request.” 21 Maldonado v. Empire HealthChoice Assurance, Inc., 2020 WL 5240625 , at *6 (C.D. Cal. June 29, 22 2020). Plaintiff fails to allege that he submitted written requests for the specific documents ERISA 23 commands an administrator to produce, such as an annual report or summary plan description. In 24 addition, it is not clear whether Defendants are the administrators of the pension benefits plan. As 25 a result, the Court cannot plausibly infer that Plaintiff is entitled to relief under § 1132(c). [28] 1} 11. Conclusion 2 Accordingly, IT IS ORDERED that: 3 1. Plaintiffs request to proceed in forma pauperis is hereby GRANTED. Docket No. 4 1. Plaintiff shall not be required to pay the filing fee. 5 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 6 prepayment of any additional fees or costs or the giving of a security therefor. This 7 Order granting leave to proceed in forma pauperis shall not extend to the issuance 8 and/or service of subpoenas at government expense. 9 3. The Complaint is DISMISSED with leave to amend. Plaintiff will have until 10 January 6, 2021, to file an Amended Complaint, if the noted deficiencies can be 11 corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that 12 the Court cannot refer to a prior pleading (i.e., the original Complaint) in order to 13 make the Amended Complaint complete. This is because, as a general rule, an 14 Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) 15 requires that an Amended Complaint be complete in itself without reference to any 16 prior pleading. Once a plaintiff files an Amended Complaint, the original 17 Complaint no longer serves any function in the case. Therefore, in an Amended 18 Complaint, as in an original Complaint, each claim and the involvement of each 19 Defendant must be sufficiently alleged. 20 4. Failure to comply with this order will result in the recommended dismissal of 21 this case. 22 IT IS SO ORDERED. 23 Dated: December 7, 2020 34 “ go Nancy Roppe . 25 United States Magistrate Judge