Opinion
Civil No. 05-1759 JAH (LSP).
October 12, 2005
Plaintiff, James L. Pearson, Jr., currently detained at the San Diego County Central Jail, and proceeding pro se, has filed a civil rights action alleging gender discrimination pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5, on behalf of himself and another person named Phyllis R. Sharpe. Neither purported Plaintiff has prepaid the civil filing fee required by 28 U.S.C. § 1914(a), but Pearson has submitted a Motion to Proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2], as well as a Motion for Appointment of Counsel [Doc. No. 3].
I. Motion to Proceed IFP [Doc. No. 2]
Any party instituting a civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to prepay the entire fee only if the party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (" PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005) ("[P]risoners [seeking leave to proceed IFP per § 1915(a)(1) (2)] must demonstrate that they are not able to pay the filing fee with an affidavit and submission of their prison trust account records."). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
While Plaintiff Pearson has filed a Motion to Proceed IFP in this matter pursuant to 28 U.S.C. § 1915(a), he has not attached a certified copy of his prison trust account statement for the 6-month period immediately preceding the filing of his Complaint. See 28 U.S.C. § 1915(a)(2); S.D.CAL. CIVLR 3.2. Section 1915(a)(2) clearly mandates that prisoners "seeking to bring a civil action . . . without prepayment of fees . . . shall submit a certified copy of the trust fund account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). Without Plaintiff's trust account statement, the Court is simply unable to assess the appropriate amount of the filing fee required to initiate this action. See 28 U.S.C. § 1915(b)(1).
Therefore, Plaintiff Pearson's Motion to Proceed IFP [Doc. No. 2] must be DENIED. II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
A. Standard of Review
In addition, 28 U.S.C. § 1915A further obligates the Court to review complaints filed by prisoners, like Plaintiff, who are "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of IFP status. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).
"Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Id. at 447 (citing Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1997)). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in giving liberal interpretation to a pro se civil rights complaint, the court may not, "supply essential elements of the claim that were not initially pled." Ivey v. Bd of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
B. Application to Plaintiff's Complaint
Plaintiff's Complaint, in its entirety, alleges that:
Sycuan Resort and Casino did wrongfully accussed [sic] James Pearson and Phyllis R. Sharpe of thief [sic], settled with James Pearson, but denied Phyllis Sharpe any compensation. I contend they discriminated against Phyllis R. Sharpe on the basis of gender or sex after defaming her i.e., slandered her name unjustly.See Compl. at 1.
These allegations fail to state a claim for several reasons. First, to the extent a liberal construction of the Complaint indicates Plaintiff Pearson, who is proceeding pro se, intends to assert Phyllis Sharpe's rights under Title VII, he has no authority to do so. See Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (pro se litigants cannot assert the legal interests of anyone other than themselves).
Second, to the extent Pearson seeks to allege his own injury under Title VII, he has failed to state a claim. Title VII was enacted to eliminate discriminatory employment practices. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Title VII prohibits discrimination "against any individual with respect to his compensation, 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)(1). Thus, Title VII's prohibitions apply only to unlawful employment practices. Id. Here, while Pearson seeks to challenge Defendant Sycuan's "wrongful" accusation of theft; he does not, however, claim to have been terminated or discriminated against because of his "race, color, religion, sex or natural origin." Id.
Moreover, before filing an action in federal court under Title VII, a private litigant must first file a complaint with the Equal Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(e)(1); Stache v. Int'l Union of Bricklayers, 852 F.2d 1231, 1233 (9th Cir. 1988); Green v. Los Angeles County, 883 F.2d 1472, 1473 (9th Cir. 1989). "An action brought under Title VII must be filed [in district court] within ninety days of receipt of a right to sue letter from the EEOC or appropriate state agency. This filing period is a statute of limitations." Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990) (citation omitted). Failure to file a claim within the ninety day period bars relief. Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir. 1992).
Here, Plaintiff fails to allege that he has satisfied these basic requirements of stating a Title VII claim. Therefore, he cannot, based on the allegations in his Complaint, maintain a cause of action against Sycuan Casino under Title VII. Accordingly, the Court finds that Plaintiff's Complaint fails to state a claim upon which relief may be granted, and is therefore subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b).
III. Conclusion and Order
For all the reasons set forth above, IT IS ORDERED that:
(1) Plaintiff Pearson's Motion to Proceed IFP [Doc. No. 2] is DENIED and this civil action is DISMISSED without prejudice for failing to prepay the $250 filing fee mandated by 28 U.S.C. § 1914(a). Plaintiff if further GRANTED thirty (30) days from the date this Order is stamped "Filed" to either: (1) pay the entire $250 filing fee, or (2) submit a certified copy of his trust account statement for the 6-month period preceding the filing of his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2(b). IT IS FURTHER ORDERED that:
Plaintiff is cautioned that if he elects to proceed IFP but fails to amend, or if his Amended Complaint still fails to state a claim, he will be required to pay the entire $250 civil filing fee, pursuant to the installment provisions of 28 U.S.C. § 1915(b)(1), and may hereafter have the dismissal of this action counted as a "strike" against him under 28 U.S.C. § 1915(g). Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is in imminent danger of serious physical injury." See Andrews, 398 F.3d at 1116 n. 1 ("Pursuant to § 1915(g), a prisoner with three strikes," i.e., prior federal cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on grounds that they were frivolous, malicious, or failed to state a claim, "cannot proceed IFP.").
(2) Pearson's Complaint is DISMISSED sua sponte without prejudice pursuant to 28 U.S.C. § 1915A(b)(1) because it fails to state a claim upon which relief can be granted. However, Plaintiff Pearson is also GRANTED thirty (30) days leave from the date this Order is stamped "Filed" in which to file an Amended Complaint which cures all the deficiencies of pleading noted above. Pearson's Amended Complaint must be complete in itself without reference to his original pleading. See S.D. CAL. CIVLR. 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be considered waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
(3) In light of the dismissal of his Complaint, Plaintiff Pearson's Motion for Appointment of Counsel [Doc. No. 3] is DENIED without prejudice as moot.
IT IS SO ORDERED.