Opinion
5-22-CV-01353-FB-RBF
04-11-2023
RUDY CASTANEDA, Plaintiff, v. STATE OF NEVADA, DOES 1-5, INCLUSIVE, JONI ABRAHAM, VIARA HRISTOV, SHEILA THOMKINS-HESS, DEVRON MCKINNEY, TIFFANY DYER, HAYLEY JAROLIMEK, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns Plaintiff Rudy Castaneda's pro se Application to Proceed in District Court Without Prepaying Fees or Costs and Amended Complaint. See Dkt. Nos. 1, 11. The Application and related matters were automatically referred for disposition, pursuant to 28 U.S.C. § 636(b) and the October 8, 2019, Standing Order regarding Court Docket Management of Cases Involving Applications to Proceed in Forma Pauperis for the San Antonio Division of the Western District of Texas. Authority to enter this Order and recommendation stems from 28 U.S.C. § 636(b)(1). For the reasons stated below, Castaneda's Amended Complaint, Dkt. No. 11, should be DISMISSED as frivolous, pursuant to 28 U.S.C. § 1915(e).
Factual and Procedural Background
Castaneda is a 60-year-old Mexican-American who resides in San Antonio. Castaneda alleges that he applied for countless jobs with the State of Nevada between 2009 and 2021, but he has been denied employment again and again. Castaneda believes that he was not hired for these positions due to his race, national origin, and age. Castaneda primarily describes several instances where he was required, but was unable, to provide work references for his applications. Castaneda also complains about receiving thank-you letters for jobs in Nevada he never interviewed for.
Castaneda previously lived in Mesa, Arizona. Castaneda does not state whether he has ever lived in Nevada, although he alleges no connections thereto, and he has never traveled north of Mesquite, Nevada. Castaneda doesn't explain why he wants a job in Nevada. See Dkt. Nos. 1, 4, 9, 11.
Castaneda filed a charge with the Equal Employment Opportunity Commission (“EEOC”) against the State of Nevada in San Jose, California, on October 7, 2021. Castaneda received his right-to-sue letter from the EEOC on September 14, 2022. See Dkt. No. 9 at 17-18. Castaneda filed his IFP application on December 19, 2022, asserting causes of action for race, national origin, and age discrimination under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (“ADEA”). Castaneda's proposed complaint named only the State of Nevada and Does 1-5 as defendants. See Dkt. Nos. 1, 4.
The Court ordered Castaneda to show cause why his complaint should not be dismissed as frivolous due to state sovereign immunity, lack of personal jurisdiction, venue, and other problems. See Dkt. No. 3. Castaneda filed a response, in part complaining that he had not been afforded an opportunity to amend his proposed complaint. See Dkt. No. 9. The Court subsequently granted leave to amend, and Castaneda timely filed his Amended Complaint. See Dkt. No. 11. Castaneda apparently seeks $1 million in actual and punitive damages.
Section 1915(e) Analysis
The Court previously set forth the law governing the process of screening IFP complaints pursuant to 28 U.S.C. § 1915(e). See Dkt. No. 6 at 3. An action is “frivolous” where there is no arguable legal or factual basis for the claims. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is also legally frivolous when the court lacks subject matter jurisdiction over it. See Bibbs v. Harris, 578 Fed.Appx. 448 (5th Cir. Aug. 20, 2014). And courts may raise sua sponte and dismiss IFP actions for “affirmative defenses that are apparent from the record.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
Castaneda's proposed complaint initially named the State of Nevada as the sole defendant, alongside Does 1-5. Accordingly, the Court's primary concern at the time was state sovereign immunity. Castaneda's Amended Complaint now appears to replace Nevada with its Department of Administration. See Dkt. No. 11. Castaneda then identifies six individuals, in lieu of Does 1-5, and asserts claims against each in their individual capacities. All six individuals apparently reside in Nevada. See id. at 3. In addition to his § 1981, Title VII, and ADEA claims for employment discrimination based on race, national origin, and age, Castaneda appears to impliedly assert parallel claims under Nevada state statutes. Despite Castaneda's attempt to clarify by amending his complaint, each claim is frivolous for the same reasons articulated in the Court's Order to Show Cause. Dkt. No. 3. The Court will explain why in further detail.
A. Castaneda's Title VII Claims Are Barred for Several Reasons.
The Court previously pointed out two potential flaws in Castaneda's Title VII claims. First, employment-discrimination suits under Title VII may only be filed in certain judicial districts. 42 U.S.C. § 2000e-5(f)(3). The Court thus ordered Castaneda to explain why the Western District of Texas-as opposed to the District of Nevada-is a proper forum. See Dkt. No. 3 at 6. Castaneda's response recites the Court's concerns over jurisdiction, but he supplies no answers. See Dkt. No. 9 at 10. And the Amended Complaint contains no answers either. See Dkt. No. 11. Indeed, Castaneda alleges no facts consistent with exercising jurisdiction over his Title VII claims: the alleged unlawful acts all took place in Nevada, the Department's employment records are all kept in Nevada, every job Castaneda applied for was in Nevada, and the Department's principal office is presumably in Nevada, too. See 42 U.S.C. § 2000e-5(f)(3). There is simply no connection to Texas evident in Castaneda's pleadings, and this Court therefore cannot entertain Castaneda's Title VII claims.
Castaneda's Title VII claims are also time-barred. As the Court previously explained, Title VII claims must be filed in federal court within 90 days of receipt of the EEOC right-to-sue letter, and that deadline is “strictly construed.” Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002); see also Dkt. No. 3 at 6-7; 42 U.S.C. § 2000e-5(f)(1). Although the Amended Complaint contains no mention of the EEOC right-to-sue letter, Castaneda explains in his show cause response that he “received his Right-to sue [sic] letter on September 14, 2022.” Dkt. No. 9 at 4. Because the 90-day period “begins to run on the date that the EEOC right-to-sue letter is received,” Taylor, 296 F.3d at 379, Castaneda's deadline to file suit was December 13, 2022. But Castaneda waited until December 19, 2022.
Castaneda argues that he was timely under the federal rules because the date of receipt is excluded from the calculation, three days are added when delivered by mail, and two more days due to an intervening weekend. See Dkt. No. 9 at 4; Fed.R.Civ.P. 6(a)(1)(A)-(C), (d). But Castaneda misunderstands how these rules work. Rule 6(a)(1)(A) is not an automatic one-day extension to all deadlines-it simply means that September 15 is counted as day one. Castaneda also does not get to rely on Rule 6(d), which is used for calculating receipt by mail when the day of receipt “is either unknown or disputed.” Taylor, 296 F.3d at 379. Here, Castaneda unambiguously states that he received his right-to-sue letter on September 14, 2022. See Dkt. No. 9 at 4. Castaneda cannot reap the benefit of Rule 6(d) when the receipt date is known. Even if the Court accepts Castaneda's argument and adds three days, the deadline to file would have been December 16, 2022. Cf. Taylor, 296 F.3d at 380 (affirming dismissal of Title VII claims when complaint was filed one day late). Castaneda's Title VII claims are untimely either way.
Additionally, to the extent Castaneda asserts a claim under Title VII against the newly added individual Defendants, such claims are unavailable. Title VII does not impose individual liability. See Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994). Castaneda explains that his claims all arise from seeking “employment by Defendant, State of Nevada.” Dkt. No. 11 at 2. Castaneda can only sue “employers” under Title VII, and none of the individual Defendants here appear to meet that description. For all the reasons stated above, Castaneda's Title VII claims should be dismissed.
B. Castaneda's Remaining § 1981 and ADEA Claims Against the Department and Its Employees Are Barred by Immunity Doctrines.
Simply replacing the State of Nevada with a state agency does not save Castaneda's Amended Complaint. “Even in cases where the State itself is not a named defendant, the State's Eleventh Amendment immunity will extend to any state agency or other political entity that is deemed the ‘alter ego' or an ‘arm' of the State.” Vogt v. Bd. of Comm'rs, 294 F.3d 684, 688-89 (5th Cir. 2002); accord Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). It is beyond dispute that the Department is a state agency. See, e.g., Wilson v. Ayers, 470 Fed. App'x 654, 655 (9th Cir. 2012) (affirming dismissal of claims against Department employee in official capacity under the Eleventh Amendment); Cohen v. Whitley, No. 2:19-CV-01033-APG-EJY, 2021 WL 1553814, at *5 (D. Nev. Apr. 20, 2021) (finding the Department's Division of Human Resource Management immune from suit under the Eleventh Amendment). See generally Nev. Rev. Stat. §§ 232.212 et seq. (establishing the Department and describing its duties). And neither the ADEA nor § 1981 contains a valid abrogation of state sovereign immunity. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000); Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981). For the same reasons stated in the Court's Order to Show Cause, Dkt. No. 3, Castaneda's remaining ADEA and § 1983 claims against the Department are barred.
Although Castaneda cites Nevada state statutes in support of his argument that immunity has been waived, the plain text of the cited provisions reveals that no such waiver is applicable here. Nevada may have waived certain aspects of its immunity, but only for causes of action under Nevada state law. See Nev. Rev. Stat. § 41.031(1). That same statute explicitly proclaims that “Nevada does not waive its immunity from suit conferred by Amendment XI of the Constitution of the United States.” Id. § 41.031(3). Moreover, this waiver appears to extend only to suits brought in Nevada state courts. See id. § 41.031(2). Accordingly, Nevada never waived its state sovereign immunity from suit under federal laws. And because Castaneda elected to file suit against Nevada in Texas, he cannot avail himself of Nevada's waiver statute for state-law claims in Nevada state courts.
As for the individual Defendants, state employees sued in their individual capacities under § 1981 are generally entitled to qualified immunity. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 338 (5th Cir. 2003). That defense in turn triggers a heightened pleading standard. See Wicks v. Miss. State Emp. Servs., 41 F.3d 991, 994-95 (5th Cir. 1995). And like Title VII, “the ADEA provides no basis for individual liability.” Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996). The Court surmises from the allegations that the six named individual Defendants are all Nevada state employees, although perhaps not all employed by the Department. Castaneda offers no explanation for who each Defendant is or how they violated his rights, other than alleging that each responded in some manner to one or more of his many employment applications. But without more, Castaneda simply cannot satisfy the heightened pleading standard for overcoming qualified immunity. And there may be additional reasons why any state-law claims against these individual state employees are barred under Nevada state law. See Nev. Rev. Stat. §§ 41.032 (discretionary acts), .0337 (state employer as required party). As the Court attempted to explain in its Order to Show Cause, Dkt. No. 3, Castaneda should have sought relief in the District of Nevada. All claims against all Defendants should be dismissed under immunity doctrines.
According to the Amended Complaint, Dkt. No. 11, Joni Abraham appears to be a recruiter with the Department; Viara Hristov is a psychiatric nurse in Las Vegas; Sheila Thomkins-Hess is a program officer at a treatment facility in Las Vegas; Devron McKinney works for the Aging and Disability Services Division in Reno; Tiffany Dyer is a CPMI in Reno; and Hayley Jarolimek works for the Division of Child and Family Services in Carson.
In this respect, the Court notes that Castaneda likely fails to even satisfy basic federal pleading standards. See Fed.R.Civ.P. 8(a); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
The Court declines to analyze any unarticulated and cursorily raised claims Castaneda may have under Nevada state law. Castaneda asserts no viable federal questions, and he does not invoke diversity jurisdiction. Even so, Nevada employment-discrimination laws, see Nev. Rev. Stat. § 613.330, require individuals to exhaust administrative remedies with the state agency before filing suit. See id. § 613.420; Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005). Castaneda never alleges that he filed his state-law discrimination claims with the Nevada Equal Rights Commission. Any state-law claims, regardless of the merits, are thus barred for failure to exhaust.
C. The Court Lacks Personal Jurisdiction Over Any Named Defendant and Venue Is Improper.
Regardless of immunity or the merits of Castaneda's claims, the Court lacks personal jurisdiction over Defendants and thus venue is improper in the Western District of Texas. The Court previously explained the law as it pertains to general and specific personal jurisdiction, as well as federal venue requirements. See Dkt. No. 3 at 5; 28 U.S.C. § 1391(a). Only those “contacts proximately result[ing] from actions by the defendant himself” are relevant to the “purposeful availment” inquiry, not “unilateral activity of another party or a third person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); see also Admar Int'l, Inc. v. Eastrock, L.L.C., 18 F.4th 783, 788 & n.1 (5th Cir. 2021) (clarifying that operation of commercial website accessible in forum state is not “purposeful availment,” even with “isolated” sales to forum state residents).
The only reference to Texas in the Amended Complaint is Castaneda's place of residence. See Dkt. No. 11 at 3. But specific personal jurisdiction can only result from a defendant's actions-Castaneda's unilateral act of filing online job applications cannot create minimum contacts for Nevada residents, much less Nevada state agencies. Nor is it evident from the allegations whether Castaneda was even in Texas when he applied for these positions, assuming arguendo that such actions could establish personal jurisdiction. The attached exhibits only list his former home address in Mesa, Arizona. See id. at 24, 28. And Castaneda states that he filed his EEOC charge in San Jose, California. Id. at 3. In other words, aside from the fact that Castaneda now lives in San Antonio, none of the underlying events he complains of are alleged to have taken place in Texas.
Castaneda's show cause response contains no explanation for why personal jurisdiction or venue are proper here. Instead, Castaneda appears to concede these issues and merely argues that “Rule 12 (b) (1-3) is a defense to respond or otherwise [sic] by motion where Plaintiff is not asserting.” Dkt. No. 9 at 9; see also Dkt. No. 11 at 11 (“Personal Jurisdiction may be waived and considered waived if a defendant (not the Court) does not raise the issue at the start of the proceedings.”). But as noted above, the Court is under no obligation to wait until Defendants are served and a motion is filed to dismiss a frivolous IFP action based on an “obvious and facially meritorious” affirmative defense. Ali, 892 F.2d at 440.
The Amended Complaint's venue section likewise fails to alleviate the Court's concerns:
The Employment practices alleged herein to be unlawful were committed within the Jurisdiction of this United States District Court for the District of Texas. Venue is proper in this District Court pursuant to 28 U.S.C. 1391 (e) (2). All acts complained of herein through Clark County and surrounding Counties of Nevada.Dkt. No. 11 at 3. Title 28 U.S.C. § 1391(e)(2) concerns actions against officers or employees of the federal government, not state employees. And Castaneda's contention that the alleged employment practices “were committed within” this judicial district runs counter to the subsequent explanation that “[a]ll acts complained of herein” occurred in Nevada. Moreover, as noted above, none of Castaneda's factual allegations support the conclusory legal assertion that venue is proper in this District. Castaneda even alleges that “[t]hese laws were violated in Phoenix, Arizona, and Orange County, California.” Dkt. No. 11 at 7. But there is nothing remotely connected to Texas. Personal jurisdiction and venue are both obviously lacking here and require dismissal.
D. Castaneda Fails to Plead Any Employment Discrimination Because of Race, National Origin, or Age.
In addition to Castaneda's claims being barred by state sovereign immunity and other procedural issues, he fails to plausibly state any claim for relief. Title VII prohibits employment discrimination “because of” race or national origin. 42 U.S.C. § 2000e-2(a)(1). Although § 1981 prohibits racial discrimination, it does not reach “discrimination purely on the basis of national origin.” Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. 1981). The ADEA likewise only prohibits discrimination “because of such individual's age.” 29 U.S.C. § 623(a)(1); accord Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 176 (2009). Under any theory, either race, national origin, or age must at least be a “motivating factor” in the adverse employment action, if not a “but-for” cause. See Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009, 1017-18 (2020) (clarifying that “motivating factor” framework applies to Title VII but not § 1981); cf. Gross, 557 U.S. at 180 (2009) (requiring “but-for” causation in ADEA context). Nonetheless, “a subjective belief of discrimination, however genuine, may not be the basis of judicial relief.” Lawrence v. Univ. of Tex. Med. Branch, 163 F.3d 309, 313 (5th Cir. 1999) (cleaned up).
Castaneda agrees in his Amended Complaint that causation is a necessary element he must plead and eventually establish. See Dkt. No. 11 at 6-7. And although Castaneda professes that he “believes that he has been discriminated against and denied hire based on his race/national origin (Mexican) . . . and because of [his] age (60),” he then states that “[t]he Age and National Origins of the eligible applicants, including Plaintiff, were not known to [the Department].” Id. at 12. Even Castaneda's explanations for why he was not hired make no mention of his race, national origin, or age as a potential factor. Instead, Castaneda complains that he was unable to find references to finish his applications, or that he was thanked for interviewing when he never applied for that position. See id. at 8-11. In other words, not only does Castaneda allege his potential employer never knew his race, national origin, or age, he also apparently never fully completed a single job application. Castaneda cannot seek monetary damages for discrimination he never faced, based on jobs he never actually applied for. Castaneda thus fails to plausibly state any claims for which relief may be granted, and the Amended Complaint should be dismissed as frivolous.
E. Castaneda Is Admonished Against Further Frivolous IFP Actions.
On a final note, the Court observes that this is not Castaneda's first IFP action asserting frivolous employment-discrimination claims. Castaneda previously raised similar claims in this Division against another potential employer, which were dismissed as frivolous. See Castaneda v. Maxim Healthcare Services, Inc., No. SA-21-CV-0632-JKP, 2022 WL 585338, at *1 (W.D. Tex. Feb. 25, 2022), appeal dismissed, No. 22-50224, 2022 WL 4459914 (5th Cir. Aug. 8, 2022). And a simple Westlaw search reveals several older, yet strikingly similar, employmentdiscrimination actions in the Ninth Circuit. See Castaneda v. Arizona Dep't of Econ. Sec., 142 F.3d 442 (9th Cir. 1998) (Title VII retaliation); Castaneda v. Sims, 124 F.3d 210 (9th Cir. 1997) (§ 1981 racial discrimination); Castaneda v. Arizona Boys Ranch, Inc., 97 F.3d 1458 (9th Cir. 1996) (Title VII, § 1981, and other claims). Castaneda also appears to be involved in a long-running feud with the IRS, see, e.g., Castaneda v. Comm'r of Internal Revenue, 828 Fed.Appx. 471, 472 (9th Cir. 2020), which may explain some of the debts and liabilities claimed in his IFP application. See Dkt. No. 1.
The Court's review of publicly available records thus generally confirms a pattern of filing frivolous motions and lawsuits while proceeding pro se and presumably IFP. Although the Court does not believe any additional measures are necessary at this time, Castaneda is hereby put on notice that the repeated filing of frivolous IFP applications may result in future sanctions. The range of sanctions available includes assessing monetary fines or designating Castaneda a “vexatious litigant” and enjoining him from filing any civil lawsuit in this district without first obtaining permission. See Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 187 (5th Cir. 2008); Fed.R.Civ.P. 11(b).
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Castaneda's Amended Complaint, Dkt. No. 11, be DISMISSED as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B).
Having considered and acted upon all matters for which this was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.