Opinion
CV-22-0464-PHX-JFM
04-26-2022
Leonso Castro, Plaintiff v. Food City, Defendant.
REPORT & RECOMMENDATION RE SCREENING OF IFP COMPLAINT
James F. Metcalf United States Magistrate Judge
A. REPORT AND RECOMMENDATION
This matter is before the undersigned magistrate judge awaiting consents pursuant to 28 U.S.C. § 636(c). Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 21-25.
B. SCREENING OF COMPLAINT
1. Screening Required
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a claim, or seek monetary relief from a defendant who is immune.
2. Pleading Standards
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 1 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. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Iqbal, 556 U.S. at 678.
Reasonable inferences can be drawn from the facts. “Iqbal demands more of plaintiffs than bare notice pleading, but it does not require us to flyspeck complaints looking for any gap in the facts.” Lacey v. Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012).
And, 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 prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
3. Application to Complaint
In his Complaint (Doc. 1) Plaintiff names as Defendant Food City, and asserts claims for employment discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e to 2000e-17, and under the Americans with Disabilities Act of 1990 (42 2 U.S.C. § 12112 to 12117). Plaintiff alleges that Defendants engaged in the following discriminatory conduct: failure to hire (and “rehire”), termination of employment, failure to accommodate his disability, unequal terms and conditions of employment, and retaliation. He alleges the discriminatory conduct occurred between July 4, 2018 and August 20, 2020, and is continuing. He asserts discrimination occurred only on the basis of a disability of a “pre-exi[s]tent condition ast[h]ma and doctor's visits. He asserts he filed a charge with the Equal Employment Opportunity Commission or his Equal Employment Opportunity counselor regarding this conduct on May 6, 2019. He makes no allegation regarding a Notice of Right to Sue letter, and does not attach one.1 He asserts damages for “20 hours in vacation leave pay and 12 hours in PST hours pay, ” damages for wrongful termination, for emotional damages. He alleges retaliation based on his complaint.
However, Plaintiff fails to make any statement of the facts of his case beyond responding to the basic questions in the form. (See Complaint, Doc. 1 at 4-5, ¶ III(E).)
Civil Rights Act Discrimination - Title VII of the Civil Rights Act of 1964 only provides remedies for discrimination on the basis of “race, color, religion, sex, or national origin, ” 42 U.S.C. § 2000e-2, (“status-based discrimination”) or for opposition to such discrimination or complaints alleging such discrimination, 42 U.S.C. § 2000e-3, (“protected employee conduct” discrimination). Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013). Here, although he asserts a violation of Title VII, Plaintiff fails to allege any facts to show discrimination based on “race, color, religion, sex, or national origin, ” or retaliation for “protected employee conduct” with respect to discrimination on those bases. Indeed, in asserting the bases for discrimination in Paragraph III(D) of his Complaint, he indicates only “disability or perceived disability.” (Doc. 1 at 4.) 1 The failure to allege exhaustion of the administrative right-to-sue requirement does not result in failure to adequately state a claim. See Fort BendCty., Texas v. Davis, 139 S.Ct. 1843 (2019) (Title Vil's administrative exhaustion requirement is not jurisdictional, and subject to waiver). “Courts have consistently applied Fort Bends holding to ADA claims.” Krupa v. 5 & Diner N 16th St. LLC, No. CV-20-00721-PHX-JJT, 2020 WL 7705986, at *2 (D. Ariz. Dec. 28, 2020). 3 Accordingly, Plaintiff fails to adequately state a claim under Title VII, and this claim should be dismissed with leave to amend.
Americans with Disabilities Discrimination - To state a claim for adverse employment action under the ADA, Plaintiff must adequately allege: (1) that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, with or without reasonable accommodation (which he must describe), he is able to perform the essential functions of the job; and (3) that the employer took adverse employment action because of his disability. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). “A ‘disability' is a ‘physical or mental impairment that substantially limits one or more of the major life activities of such individual.'” Humphrey v. Mem'lHosps. Ass'n, 239 F.3d 1128, 1133 (9th Cir. 2001).
Here, Plaintiff does not allege any facts to show disability within the meaning of the ADA. At most, he asserts he suffers from asthma, but alleges nothing to suggest that this condition limits any major life activity. He also fails to allege that he was able to perform the job, with or without accommodations, nor does he describe any reasonable accommodations necessary to allow him to do so. At most, Plaintiff adequately alleges adverse employment action on the basis of his condition.
Accordingly, Plaintiff fails to adequately state a claim of ADA discrimination, and this claim should be dismissed with leave to amend.
Americans with Disabilities Protected Conduct - To state a claim for adverse action for protected employee conduct under the ADA, Plaintiff must adequately allege that: “(1) [he] engaged in a protected activity; (2) suffered an adverse employment action; and (3) there was a causal link between the two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). Protected activity is that the “individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). Here, Plaintiff alleges only that he suffered “retaliation upon my complaint.” (Complaint, Doc. 1 at 5.) He alleges nothing to show that his “complaint” was in an “investigation, proceeding or hearing” under the ADA. Nor does 4 he allege what the retaliation was, i.e. to show that it amounted to an adverse employment action. He does add: “and refusing to rehire me.” (Complaint, Doc. 1 at 5.) But he does not allege that the refusal to rehire was in retaliation for his protected conduct, as opposed to simply another action of which he complains.
Accordingly, Plaintiff fails to adequately state a claim of retaliation under the ADA, and this claim should be dismissed with leave to amend.
4. Conclusions
Plaintiff fails to adequately state any claim for relief. Accordingly, the Complaint should be dismissed with leave to amend.
C. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” 5
D. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED
(A) Plaintiff's Complaint (Doc. 1) be DISMISSED WITH LEAVE TO AMEND.
(B) Plaintiff be given 21 days to file an amended complaint.
(C) If Plaintiff fails to timely file an amended complaint, that this case be DISMISSED WITHOUT PREJUDICE by the Clerk, without further notice or order.
E. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10)pages.” 6