Opinion
CV-23-00254-PHX-MTM
04-26-2023
Tanya L Deri-Alvarado, Plaintiff, v. Waste Management, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
This Report and Recommendation is filed under General Order 21-25.
General Order 21-25 states in relevant part:
When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee.
On February 9, 2023, Plaintiff commenced this civil action with a pro se Complaint for violation of civil rights and an Application to Proceed in District Court without paying fees or costs. Docs. 1, 2. On February 10, 2023, the Court granted Plaintiff's Application to Proceed in District Court without paying fees or costs. Doc. 5. The Court will recommend the Complaint be dismissed with leave to amend.
I. Statutory Screening of In Forma Pauperis Complaints
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to review complaints brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a complaint, or portion of it, if the plaintiff has raised claims that are legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief.
A pleading 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) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
II. Complaint
Plaintiff names as Defendants her former employer, Waste Management, and several employees of Waste Management. Doc. 1. Plaintiff alleges violations of the Americans with Disabilities Act and “RICO-Stalking/Cyber Bullying/Hacking, organized criminal activities.” Doc. 1 at 3.
A. Plaintiff's Claims under the Racketeer Influenced and Corrupt Organizations Act
Plaintiff alleges that she was “cyber bull[ied] . . . on ALL my social media accounts,” in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Doc. 1 at 3, 8. Plaintiff does not contend that any of the named Defendants engaged in the alleged conduct. Doc. 1 at 8-9.
The Court will dismiss Plaintiff's claims under RICO because there is no private right of action for Plaintiff to bring a criminal charge. See Leeke v. Timmerman, 454 U.S. 83, 85-86 (1981) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).
B. Plaintiff's Claims under the Americans with Disabilities Act
Plaintiff alleges that she suffers from irritable bowel syndrome. Doc. 1 at 4. Plaintiff further alleges Defendants engaged in the following discriminatory conduct: “termination of my employment,” “failure to promote me,” and “retaliation.” Doc. 1 at 4.
The Americans with Disabilities Act (“ADA”) provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. To prevail on an ADA claim of unlawful discharge or failure to promote, “the plaintiff must establish a prima facie case by showing that: (1) he is a disabled person within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) he suffered an adverse employment action because of his disability.” Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001).
Additionally, the ADA prohibits an employer from retaliating against an employee who seeks an accommodation in good faith. Coons v. Sec y of U.S. Dep t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). To prevail on an ADA claim of retaliation, the plaintiff must show: “(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two.” Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269 (9th Cir. 2009).
Here, Plaintiff states that she was provided an accommodation for her irritable bowel syndrome and that at that time, she “started to recognize vehicles and their similarities and took to social media about it.” Doc. 1 at 8. Plaintiff states that Defendants accused her of “stealing from Waste Management's time and violating [her] accommodations by being on social media during these times.” Doc. 1 at 8. Plaintiff notes that following the meeting with Defendants, she “took to social media again to vent.” Doc. 1 at 9. Plaintiff alleges that she was then fired for “exercising [her] freedom of speech rights . . . because [she] disclosed names on social media and that was a violation of [Defendant's policy].” Doc. 1 at 9. Plaintiff believes she was “singled out and chosen to be picked on because [her] ex-husband was in an affair with someone at Waste Management.” Doc. 1 at 9.
Plaintiff has failed to establish the elements necessary to state a claim for disability discrimination under the ADA. Notably, Plaintiff has failed to demonstrate that she suffered an adverse employment action because of her disability. See Hutton, 273 F.3d at 891. Plaintiff has also failed to establish the elements necessary to state a claim for retaliation under the ADA. Plaintiff has not established any link between a request for reasonable accommodation and an adverse employment action. See Coons, 383 F.3d at 887. As a result, Plaintiff has failed to state claims for disability discrimination and retaliation under the ADA.
IT IS RECOMMENDED Plaintiff's Complaint (doc. 1) be DISMISSED WITHOUT PREJUDICE.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.