Opinion
ORDER DISMISSING COMPLAINT (ECF No. 1) FIRST AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is proceeding pro se and in forma pauperis in this employment discrimination and retaliation action filed on October 14, 2015. Plaintiff's complaint is before the Court for screening.
I. SCREENING REQUIREMENT
The in forma pauperis statute provides, "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
II. PLEADING STANDARD
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id . Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
III. PLAINTIFF'S ALLEGATIONS
Plaintiff is an African-American man who worked as a custodian for Defendant Zero Waste Solutions (and its predecessor, Rainbow Bright) since October 2005. Plaintiff last worked at the Robert E. Coyle Federal Courthouse in Fresno, California. Plaintiff's supervisor was Carmen Rodriguez.
On an unspecified date in 2015, Rigo Rodriguez was assigned to work at the courthouse. Since Rigo Rodriguez was new, Plaintiff trained him and gave him a new shirt to get him started. Afterward, Carmen Rodriguez and Rigo Rodriguez subjected Plaintiff to stricter work standards, stricter leave standards, and a work schedule designed to track his whereabouts. No other employee was treated in this manner.
The complaint suggests, but does not clearly allege, that Rigo Rodriguez is Carmen Rodriguez's cousin If Plaintiff chooses to amend his complaint, he is advised to clearly set forth the relation, if any, between these two individuals.
Plaintiff complained about this treatment "to the company." During the ten years that Plaintiff worked for Defendant, he had only been written up two or three times. Following his complaints and in retaliation for them, Plaintiff was written up six times in three months and then fired. Carmen Rodriguez then hired her cousin, a male, to replace Plaintiff.
Plaintiff claims that he was discriminated against because of his race and sex and retaliated against in violation of Title VII of the Civil Rights Act. Plaintiff also asserts that he was wrongfully terminated. He seeks back pay and/or reinstatement.
IV. ANALYSIS
A. Title VII Claims
Title VII makes it "an unlawful employment practice for an employer" to "discriminate against any individual with respect to" the "terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A disparate treatment claim must be supported by direct evidence of discrimination, or may instead be evaluated under the burden-of-proof-and production analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See, e.g., Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (applying McDonnell Douglas framework to Title VII discrimination claim).
1. Exhaustion of Administrative Remedies
To establish subject-matter jurisdiction over a Title VII claim, a plaintiff must exhaust his or her administrative remedies. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)). "Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the [Equal Employment Opportunity Commission ("EEOC")], or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge." B.K.B., 276 F.3d at 1099 (citing 42 U.S.C. § 2000e-5(b)). "The administrative charge requirement serves the important purposes of giving the charged party notice of the claim and narrowing the issues for prompt adjudication and decision." Id . (citation, internal quotation marks, and alteration omitted).
A plaintiff must file an administrative claim with the EEOC against his employer within one hundred and eighty days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5. This administrative claim is a prerequisite to the filing of a civil action against that employer under federal law. Id . Title VII provides that within ninety days after the issuance of a right-to-sue notice, "a civil action may be brought against the respondent." 42 U.S.C. § 2000e-5(f)(1).
Plaintiff's complaint does not allege that he exhausted his administrative remedies. If he has not yet filed a timely claim with the EEOC and received a right-to-sue letter, this case is subject to dismissal. Furthermore, since Plaintiff does not specify the timeframe in which he was discriminated against and fired, the Court is unable to determine if he may yet file a timely claim. Therefore, Plaintiff may either file an amended complaint asserting that he has exhausted his administrative remedies, or he may dismiss this action and refile once he has filed a timely claim with the EEOC and received a right-to-sue notice.
2. Sex and Race Discrimination
If Plaintiff has properly exhausted his administrative remedies, the Court will proceed with an analysis of his claims. To establish a prima facie case of discrimination based on gender/sex or race, Plaintiff must show that he is a member of a protected class; that he was qualified for his position or was performing satisfactorily; that he experienced an adverse employment action; and that similarly situated individuals outside his protected class were treated more favorably, or that some other circumstances surrounding the adverse employment action give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802; Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The facts asserted in the complaint do not state a claim for race or sex discrimination. Plaintiff alleges only that he is an African-American man and that he was fired. He does not state who fired him; he does not allege the specific facts leading up to, or the reasons given for, his termination; he does not claim that females or people of other races were treated more favorably than him; he does not assert any other facts that would give rise to an inference of discrimination. Indeed, Plaintiff admits that after he was fired, a man was hired to replace him. Similarly, Plaintiff fails to include any allegations that might give rise to an inference of discrimination on the basis of race. These claims will therefore be dismissed with leave to amend.
3. Title VII Retaliation
To make out a prima facie case of retaliation under Title VII, a plaintiff must establish that he engaged in a protected activity, such as the filing of a complaint alleging racial discrimination, that his employer subjected him to an adverse employment action, and that a causal link exists between the protected activity and the adverse action. Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006)
The McDonnell Douglas framework is also used to analyze claims of retaliation. To prove a retaliation claim, a plaintiff must first establish a prima facie case by showing that he engaged in protected activity, such as opposing unlawful discrimination or making a charge of employment discrimination; that he was thereafter subjected to a materially adverse action; and that there was a causal connection between the adverse action and his protected activity. See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1107-08 (9th Cir. 2008).
To establish causation, a plaintiff must show by a preponderance of the evidence that engaging in the protected activity was one of the reasons for the adverse employment decision and that but for such activity the decision would not have been made. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). The causal link may be established by an inference derived from circumstantial evidence, "such as the employer's knowledge that the [plaintiff] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision." Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). "[W]hen adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred." Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000).
Plaintiff's complaint does clearly allege a materially adverse action (being written up six times in three months and then fired), but does not describe a protected activity which gave rise to the adverse action or clearly allege a causal connection between a protected activity and the adverse action. For example, Plaintiff does not explain why or how Rigo Rodriguez, a newly-hired employee trained by Plaintiff, was able to impose work and leave standards on Plaintiff; he does not state who he complained to or how he filed his complaints "at the company"; he does not state that either Carmen Rodriguez or Rigo Rodriguez was aware that Plaintiff made complaints; he does not state who wrote him up six times or the circumstances surrounding those write-ups; and lastly, he does not state who fired him or what the reason was given for his firing. Accordingly, this claim will be dismissed with leave to amend.
4. Supplemental Jurisdiction
Plaintiff is hereby informed that absent a viable Title VII claim, any state law claims arising from the conduct described in the complaint (see discussion below) would need to be filed in state court. See 28 U.S.C. § 1367. This is because federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). In the absence of a claim based on original jurisdiction, such as Plaintiff's Title VII claims, the Court may decline to exercise supplemental jurisdiction over all other state law claims. See 28 U.S.C. § 1367(a).
B. FEHA Claims
Plaintiff's complaint can also be fairly read to state claims under California's Fair Employment and Housing Act ("FEHA"), which prohibits employers from discriminating against employees on various bases, including sex and race. Cal. Gov't Code § 12940(a). In evaluating claims under FEHA, California courts look to federal precedent governing analogous federal discrimination laws. See Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354 (2000) ("Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.... In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination... based on a theory of disparate treatment" (citations omitted)); Caldwell v. Paramount Unified School District, 41 Cal.App.4th 189, 195 (1995); Mixon v. Fair Employment & Housing Comm., 192 Cal.App.3d 1306, 1317 (1987).
As in the context of a Title VII claim, Plaintiff must first exhaust his administrative remedies before bringing a FEHA claim. To properly exhaust a FEHA claim, a claimant must first file a charge with California's Department of Fair Employment and Housing ("DFEH") within one year of the alleged unlawful conduct. Cal. Gov't Code § 12960(d).4 When Title VII and FEHA claims overlap, under the worksharing agreement, the EEOC and DFEH are each the agent of the other for purposes of receiving charges, and thus a filing with one agency is considered to be constructively filed with the other. See, e.g., EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000) ("Constructive filing is made possible by worksharing agreements, ' which designate the EEOC and the state agency each other's agents for the purpose of receiving charges."); Paige v. State of Cal., 102 F.3d 1035, 1041 (9th Cir. 1996) ("[T]he filing of a charge with one agency is deemed to be a filing with both.").
A claimant cannot file a lawsuit until receiving a right-to-sue notice from the agency that specifically enforces those laws. See Alberti v. City & County of S.F. Sheriff's Dept., 32 F.Supp.2d 1164, 1174 (N.D. Cal. Nov. 25, 1998) ("An EEOC right-to-sue letter does not satisfy the jurisdictional requirement of exhaustion of remedies as to FEHA claims."); see also Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1726 (1994) ("an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on Title VII"). If a claimant receives a right-to-sue notice, he or she has one year from receipt of a DFEH letter to file FEHA claims, Cal. Gov't Code § 12965(b), but only ninety days from receipt of an EEOC letter to file Title VII claims, 42 U.S.C. § 2000e-5(f)(1).
It is unclear if Plaintiff has exhausted his administrative remedies under California law. In an amended pleading, Plaintiff shall specify whether he filed a timely claim with DFEH. Moreover, as to any discrimination or retaliation claims that may be asserted under FEHA, Plaintiff's allegations fail for the same reasons they fail as to his Title VII claims.
C. Wrongful Termination
Lastly, Plaintiff asserts that he was wrongfully terminated. He does not, however, specify under what authority he brings this claim. Absent reference to a statute or policy, the Court will assume that Plaintiff brings a claim for wrongful termination in violation of public policy.
Under California law, the elements of a wrongful discharge in violation of public policy are: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of the plaintiff's employment was in violation of public policy; (4) the termination was a legal cause of the plaintiff's damages; and (5) damages. Holmes v. General Dynamic Corp., 17 Cal.App. 4th. 1418, 1426 (1993).
Plaintiff's complaint might be construed as attempting to allege a claim for wrongful discharge based on race or sex discrimination or retaliation. As noted above, however, Plaintiff does not provide sufficient factual allegations to state a claim for discrimination or retaliation, and there are no other facts before the Court that would support a claim of wrongful discharge in violation of public policy. This claim will therefore also be dismissed with leave to amend.
V. CONCLUSION AND ORDER
The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must address the deficiencies noted in this Screening Order. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth "sufficient factual matter... to state a claim that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 555).
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George, 507 F.3d at 607. Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint, " refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555 (citations omitted).
Accordingly, it is HEREBY ORDERED that:
1. Within thirty (30) days from the service of this order, Plaintiff shall a first amended complaint curing the deficiencies identified by the Court in this Screening Order;
2. The Clerk of Court is directed to send Plaintiff a copy of his complaint filed on October 14, 2015, and a copy of the Pro Se Packet; and
3. If Plaintiff fails to file a first amended complaint or otherwise respond to this Order, the Court will dismiss this action, with prejudice, for failure to comply with a court order and failure to prosecute.
IT IS SO ORDERED.
PRO SE PACKAGE
A SIMPLE GUIDE TO FILING A CIVIIL ACTION
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Office Hours are 9:00 to 4:00 p.m., Monday through Friday revised 04/2014
The following instructions have been compiled to assist any person wishing to file a complaint in this court. We have attempted to simplify procedures; however, we cannot and will not act as lawyers nor give advice as counsel. We do not anticipate that these simple procedures will satisfy all needs, and the Local Rules of Practice for the U.S. District Court are available for more specific guidance. You should use the Local Rules along with the Federal Rules of Civil Procedures. The Federal Rules are available at a public library and the Local Rules are available on our web site at www.caed.uscourts.gov.
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If you believe that you have been injured or wronged by someone, some individual, corporation or government agency and you also believe you should be compensated for the harm you have suffered, you may decide to file a civil suit in the United States District Court, without the help of an attorney.
FUNDAMENTAL INFORMATION
First, there are a few simple concepts you must get to know and understand.
The PLAINTIFF is the person who files the lawsuit.
The DEFENDANT is the person who is being sued.
If you are representing yourself without the benefit of an attorney, you are known as a PRO SE LITIGANT. "Pro Se" is a Latin term meaning "for yourself."
As a pro se litigant, you enjoy every right entitled to you under the law. You need not worry if you have had little or no experience with the courts before. However, pro se litigants are expected to follow/abide by the rules that govern the practice of law in the Federal Courts. Pro Se Litigants should be familiar with the Federal Rules of Civil Procedure and the Local Rules of this court.
FEDERAL COURT vs STATE COURT
There is a difference between State Court and Federal Court. The difference being in what types of cases (law suits) they can decide. This is called JURISDICTION. State Court has general/broad jurisdiction and Federal Court has limited/specific jurisdiction. Under Federal Court jurisdiction, the two main types of cases are Federal Question Cases and Diversity Cases.
FEDERAL QUESTION CASES: are cases where the issue involves violation of Federal Law.
DIVERSITY CASES: are cases where the Plaintiff and Defendant are citizens of different states and the amount in controversy exceeds the sum or value of $75,000. exclusive of interest and costs.
STEP ONE: WRITE YOUR COMPLAINT
All cases are comprised of documents prepared and filed by litigants. The most common documents are the complaint, answer and motions. The first documents that you must write/file is called a COMPLAINT (See Attachment No. 1).
The function of the COMPLAINT is to tell the Court and the defendant the reason for filing the lawsuit and what relief you desire. You must provide an original and one of the complaint, if you would like a copy for your records. The COMPLAINT must state:
1. The NAME AND ADDRESS of the plaintiff in the upper left hand corner of the complaint. The names of all the plaintiffs and defendants must be stated in the caption. The Court will provide the case number.
2. The JURISDICTION or reason your case is being filed in Federal Court. See 28 U.S.C. § 1331 et seq.
3. The ALLEGATIONS or claims that you are making against the defendant(s). Place each allegation in a short clearly-written paragraph. See Rule 10 Federal Rules of Civil Procedure.
4. The RELIEF you are seeking from the court. This can be money or something you want the Judge to make the defendant do or stop doing. This information is usually written in the last paragraph of the COMPLAINT.
If you believe that you are entitled to a trial by jury, you must indicate in a paragraph following the relief request that you claim trial by jury. See Rule 38(b) of the Federal Rules of Civil Procedure.
Do not worry that your COMPLAINT is not professionally written. It should be typed if possible. The Court will take into consideration that you are a PRO SE litigant and untrained in drafting legal documents. You should, however, make every effort to state your case in clear, concise terms. See Rules 8 and 10 of the Federal Rules of Civil Procedure. YOU MUST SIGN YOUR COMPLAINT.
Forms for filing a petition under Title 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody or a motion under Title 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in Federal custody are available from the Clerk's Office.
All pleadings submitted to this Court must be on 8 ½ × 11" paper. See Rule 130 of the Local Rules.
STEP TWO: FILE YOUR COMPLAINT
Your next step is to file the COMPLAINT with the Court. In addition to filing the COMPLAINT the following forms will have to be completed and submitted with the complaint:
1. A Civil Cover Sheet - (Attachment 2)
2. A $400.00 file fee for a civil case (the filing fee for a petition for writ of habeas corpus is $5.00)
The filing fee may be waived if you cannot afford to pay it. For more information, see below. All checks or money orders should be made payable to: "CLERK, UNITED STATES DISTRICT COURT".
IF YOU CANNOT AFFORD TO PAY THE FILING FEE you may be allowed to have the filing fee waived if you fill out an APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS - (Attachment 3) and send it to the Court with the COMPLAINT and Cover Sheet. The Financial Affidavit is requires to be completed so that the selected Judge can make a determination of your inability to pay the filing fee.
When you file the COMPLAINT, Cover Sheet and Application for Leave to Proceed in Forma Pauperis, each of these will be reviewed and forwarded to a Judge for consideration. If your Application is approved, the filing fee will be waived and your case will proceed. If you Application is not approved, you must pay the filing fee to have your case proceed.
If your In Forma Pauperis application is granted, the Court will direct the U.S. Marshal to serve your summons and complaint upon the defendants. In order for the Marshall to effectuate service on all defendants, you will be ordered to provide service copies of the complaint for each defendant and complete a Marshall's 285 form for each defendant. You are responsible for the movement of your case once it is filed.
CONSENT FORMS
When you file your complaint you will be given forms called: NOTICE OF RIGHT TO CONSENT TO THE EXERCISE OF CIVIL JURISDICTION BY A MAGISTRATE JUDGE AND APPEAL OPTION and CONSENT TO PROCEED BEFORE UNITED MAGISTRATE JUDGE, which you will need to serve on the parties in your case. Upon the voluntary consent of ALL parties (who must file the consent form with the Court), a Magistrate Judge may conduct any and all proceedings in your civil case, including a jury or non-jury trial, and the entry of final judgment, in accordance with the provisions of Title 28, U.S.C. § 636(c) and Local Rule 305.
STEP THREE: SERVICE OF PROCESS
If you are NOT proceeding In Forma Pauperis, your next step is to SERVE (inform) each of the defendants that he or she is being sued. This may be done in two ways:
1. NOTICE AND REQUEST FOR WAIVER OF SERVICE
If you are suing the United States (and its agencies, corporations, or officers) or a state, local or foreign government, you CANNOT use this method and you MUST arrange for Service of Process (described below at number 2).
You may notify non-government defendant(s) of the commencement of the lawsuit by sending a "NOTICE OF LAWSUIT AND REQUEST FOR WAIVER OF SERVICE OF SUMMONS" - Form AO 398 (Attachment 4) along with a copy of the complaint by first-class mail or other reliable means. You must also include a copy of the WAIVER OF SERVICE OF SUMMONS - Form AO 399 (Attachment 5) and a self addressed return envelope. See Rule 4(d) of the Federal Rules of Civil Procedure. If service is waived by the defendant the Waiver of Service form is returned to the plaintiff for filing with the court and the action shall proceed. If the defendant does not waive service, the plaintiff must proceed with service of process.
2. SERVICE OF PROCESS
Making "service of process" involves serving a copy of the complaint upon each of the defendants.
A SUMMONS is a writ used to notify the person named as the defendant of the commencement of the civil action and the requirement to appear and answer.
If a defendant has not "waived service of summons" OR you are suing a government (federal, state, local, foreign) you MUST arrange to have a copy of an original Summons and a copy of the complaint served upon each defendant.
The court will issue a summons for all defendants and a copy of the summons must be served upon each defendant with a copy of the complaint. The original summons is for the use of the person making service.
You can make service of process by having a "disinterested" (non-party) person who is over the age of eighteen deliver copies of the SUMMONS and COMPLAINT to each of the defendants. When using this method of making service of process, have the server fill out the back of the original SUMMONS and send it to the Court. See Rule 4, Federal Rules of Civil Procedure.
NOTE: Service of the COMPLAINT on the defendant must be made within 120 days from the date the complaint was filed or the case will be subject to dismissal. See Rule 4(m), Federal Rules of Civil Procedure.
THINGS YOU SHOULD KNOW ABOUT
The ANSWER is the formal written statement by the defendant responding to a complaint setting forth any defenses and objections to the claims by the plaintiff.
A MOTION is an application or request made to the court for the purpose of obtaining a ruling or order directing some act to be done in favor of the applicant. See Rule 7(b), Federal Rules of Civil Procedure and Local Rule 7.1.
AFTER THE ANSWER
In most cases the Court will issue a SCHEDULING ORDER which sets forth a timetable with deadlines the litigants must follow.
The DISCOVERY PERIOD is the time frame allowed by the Court for both plaintiff and defendant to discover facts, research the law, and gather evidence to be presented at trial to prove the litigant's position/case. The discovery period always comes after the filing of the answer by the defendant and before the first day of the trial.
COMPLAINT/ANSWER/DISCOVERY PERIOD/TRIAL
Whenever you file any document with the Court, you must always:
1. Send a copy to each of the parties who are involved in the case, or their lawyers, and indicate on a Proof of Service form (see attachment 6) at the end of the document that you have done so in accordance with Federal Rule of Civil Procedure 5.
2. Provide the correct civil action number of your case on ALL documents and correspondence and have it readily available whenever you call the Court for information.
3. Sign all documents you file with the Court. Place the words "PRO SE" after your name. Place your address and telephone number on all documents and inform the Court of any changes, in accordance with Local Rule 182(d), as soon as possible to ensure proper service of Court issued orders. It is very important that you provide a telephone number in the event it is necessary to obtain further information or clarification or advise you of any changes in hearing schedules. In addition, you must comply with the Local Rule 131, regarding counsel identification.
If you do not know an attorney, perhaps you should contact the Lawyer Referral Service of your local county Bar Association.
If you cannot afford an attorney, perhaps you should contact the Neighborhood Legal Services or Legal Aid in your area.
Attachment 1
A civil complaint can be typed or printed by hand. Your complaint must be legible and clearly stated, so that it is easily understood. Clearly set out your grievance, against whom and what you would like the court to do to correct the situation. The format of a civil complaint is clearly outlines in the Federal Rules of Civil Procedure. You may add additional pages on numbered pleading paper as necessary. Please refer to Federal Rule of Civil Procedure 10.
You must sign your complaint.
Sample Format for Pro Se Litigants
UNITED STATES DISTRICT COURT for the
Plaintiff/Petitioner Defendant/RespondentAPPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of perjury:
1. If incarcerated. I am being held at: __________________________. If employed there, or have an account in the institution, I have attached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name. I am also submitting a similar statement from any other institution where I was incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer's name and address are:
My gross pay or wages are: $ ________, and my take-home pay or wages are: $ ___________ per. (specify pay period) ____________.
3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
If you answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
4. Amount of money that I have in cash or in a checking or savings account: $. __________.
5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and its approximate value):
6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amount of the monthly expense):
7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support:
8. Any debts or financial obligations (describe the amounts owed and to whom they are payable):
Declaration: I declare under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims.
Applicant's signature Printed name Plaintiff DefendantNOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS
To: ________________________________________________________________________________________________________________________________________________ (Name of the defendatn or -if the defendant is a corporation, partnership, or association - an officer or agent authorized to receive service)
Why are you getting this?
A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached.
This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within _____ days (give at least 30 days, or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy.
What happens next?
If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States).
If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service.
Please read the enclosed statement about the duty to avoid unnecessary expenses.
I certify that this request is being sent to you on the date below.
Signature of the attorney or unrepresented party Printed name Address E-mail address Telephone number Plaintiff DefendantWAIVER OF THE SERVICE OF SUMMONS
TO: ___________________________________________________________________________ (Name of the plaintiff's attorney or unrepresented plaintiff)
I have received your request to waive service of a summons in this action along with a copy of the complaint, two copies of this waiver form, and a prepaid means of returning one signed copy of the form to you.
I, or the entity I represent, agree to save the expense of serving a summons and complaint in this case.
I understand that I, or the entity I represent, will keep all defenses or objections to the lawsuit, the court's jurisdiction, and the venue of the action, but that I waive any objections to the absence of a summons or of service.
I also understand that I, or the entity I represent, must file and serve an answer or a motion under Rule 12 within 60 days from ________________, the date when this request was sent (or 90 days if it was sent outside the United States). If I fail to do so, a default judgment will be entered against me or the entity I represent.
Signature of the attorney or unrepresented party Printed name of party waiving service of summons Printed name Address E-mail address Telephone numberDuty to Avoid Unnecessary Expenses of Serving a Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain defendants to cooperate in saving unnecessary expenses of serving a summons and complaint. A defendant who is located in the United States and who fails to return a signed waiver of service requested by a plaintiff located in the United States will be required to pay the expenses of service, unless the defendant shows good cause for the failure.
"Good cause" does not include a belief that the lawsuit is groundless, or that it has been brought in an improper venue, or that the court has no jurisdiction over this matter or over the defendant or the defendant's property.
If the waiver is signed and returned, you can still make these and all other defenses and objections, but you cannot object to the absence of a summons or of service.
If you waive service, then you must, within the time specified on the waiver form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy with the court. By signing and returning the waiver form, you are allowed more time to respond than if a summons had been served.
Attachment 6
I, the undersigned, hereby certify that I am over the age of eighteen years and, On __________________________________, 20_____, I served a copy of ____________________________________________________________________________. by placing a copy in a postage paid envelope addressed to the person hereinafter listed by depositing said envelope in the United States Mail:
(List All Defendants and Addresses Served)
I declare under penalty of perjury that the foregoing is true and correct.