Dema v. Allegiant Air LLC

Filing 11

ORDER vacating 9 Order and 5 Order. The complaint is dismissed with leave to amend by 7/31/2014. Clerk shall dismiss and terminate this action if plaintiff fails to comply. Signed by Judge Steven P Logan on 7/11/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor O. Dema,

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Plaintiff,
vs.
Allegiant Air, LLC,

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Defendant.

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No. CV-14-00968-PHX-SPL
ORDER

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Having reviewed Plaintiff’s Response to the Order to Show Cause (Doc. 10), the

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Court will vacate the July 9, 2014 Order (Doc. 9) dismissing this case for failure to

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prosecute. However, having reviewed this matter on reassignment, for the reasons that

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follow, Plaintiff’s complaint will be dismissed with leave to amend.

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I.

Screening of In Forma Pauperis Complaint

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On May 6, 2014, Plaintiff filed a Complaint (Doc. 1) and Application to Proceed

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In District Court Without Prepaying Fees or Costs (Doc. 2). In an Order dated June 12,

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2014 (Doc. 4), Plaintiff’s request to proceed in forma pauperis was granted, and he was

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directed to serve his complaint on Defendant.

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A.

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With respect to in forma pauperis proceedings, the Court shall dismiss such action

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Legal Standards

at any time if it determines that:

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(A) the allegation of poverty is untrue; or

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(B) the action or appeal –

(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.

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28 U.S.C. § 1915(e)(2). See also Lopez v. Smith, 203 F.3d 1122, 1126 fnt. 7 (9th Cir.

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2000) (28 U.S.C. § 1915(e) “applies to all in forma pauperis complaints,” not merely

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those filed by prisoners). The Court must therefore dismiss an in forma pauperis

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complaint if it fails to state a claim or if it is frivolous or malicious. Lopez, 203 F.3d at

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1127 (“It is also clear that section 1915(e) not only permits but requires a district court to

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dismiss an in forma pauperis complaint that fails to state a claim.”); Franklin v. Murphy,

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745 F.2d 1221, 1226-27 (9th Cir. 1984).

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Rule 8 of the Federal Rules of Civil Procedure provides that in order to state a

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claim for relief, a complaint must include: (1) “a short and plain statement of the grounds

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for the court’s jurisdiction;” (2) “a short and plain statement of the claim showing that the

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pleader is entitled to relief;” and (3) “a demand for the relief sought.” Fed. R. Civ. P.

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8(a). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Id.

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Further, “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P.

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8(d)(1). Even where a complaint has the factual elements of a cause of action present but

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scattered throughout the complaint and not organized into a “short and plain statement of

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the claim,” it may be dismissed for failure to satisfy Rule 8. Sparling v. Hoffman Constr.

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Co., 864 F.2d 635, 640 (9th Cir. 1988).

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B.

Plaintiff’s Complaint

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Plaintiff sues Allegiant Air for violations under Title VII of the Civil Rights Act of

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1964, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment.
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Plaintiff claims that he was employed as an aircraft maintenance mechanic for Allegiant

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Air, LLC. He alleges that in November of 2010, he was wrongfully accused of stealing “a

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very expensive pair of glasses and its red case from an aircraft.”(Doc. 1 at 6-7.) “Not long

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afterwards, [h]e was unjustly terminated from Allegiant’s employment for a reason that

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was not [h]is own fault but of numerous others not of the similar racial identity as [h]im.”

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(Doc. 1 at 8.) Plaintiff further alleges that in February of 2011, he reapplied for a position

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with Allegiant Air, LLC. However, the following day, he received an e-mail indicating

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“without reason” that it “declined to consider [h]im for the Mesa position constituting

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[an] act of retaliation against [him] for complaining to [the] EEOC about employment

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discrimination. TO BE AMENDED.” (Id. ) Plaintiff states that he received a “Notice of

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Right to Sue” from the Equal Employment Opportunity Commission (“EEOC”). (Doc. 1

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at 1.)

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Although the Court construes Plaintiff’s pro se complaint liberally, see Hebbe v.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010), it nonetheless finds that it fails to satisfy the

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federal pleading requirements. First, Plaintiff generally claims that he was terminated

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based on his race in violation of Title VII of the Civil Rights Act of 1964. However, the

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complaint does not include facts sufficient to create a nexus between Plaintiff’s race and

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his termination. Stated differently, Plaintiff has not presented any facts to show that he

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was terminated because of his race. See 42 U.S.C. § 2000e–2(a)(1); Iqbal, 556 U.S. at

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679 (“where the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged - but has not show[n] - that the

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pleader is entitled to relief”) (internal citations omitted). Rather, he suggests that he was

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terminated because he was falsely accused of theft. Plaintiff has not otherwise offered

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any allegation which shows that he was subject to an adverse employment action or a

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hostile work environment based on his race. See Kortan v. Cal. Youth Auth., 217 F.3d

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1104, 1109–10 (9th Cir. 2000).

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Second, Plaintiff alleges that he was retaliated against because he filed an EEOC

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complaint in violation of Title VII of the Civil Rights Act of 1964. Again, Plaintiff fails
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to offer any allegations showing a nexus between the alleged retaliatory hiring decision

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and the filing of his EEOC complaint. “[M]ere conclusory statements” are not enough to

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show that he is entitled to relief. Iqbal, 556 U.S. at 678.

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Lastly, Plaintiff cites that his claims are brought pursuant to 42 U.S.C. § 1981 and

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the Equal Protection Clause of the Fourteenth Amendment. However, he fails to explain

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exactly what actions Defendant is alleged to have taken that would amount to liability

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under those provisions. The complaint simply does not provide sufficient notice to

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Defendant how they allegedly violated Plaintiff’s legal rights. See Holgate v. Baldwin,

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425 F.3d 671, 676 (9th Cir. 2005). Nor does the complaint state any demand for relief for

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the claims alleged.
Therefore, finding Plaintiff fails to state a claim for relief, his complaint will be

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dismissed.

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II.

Leave to Amend

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Plaintiff will be given one opportunity, if he so chooses, to amend his complaint.

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See Lopez, 203 F.3d at 1127 (when dismissing for failure to state a claim, “a district court

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should grant leave to amend even if no request to amend the pleading was made, unless it

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determines that the pleading could not possibly be cured by the allegation of other facts”)

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(quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Any amended

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complaint filed by Plaintiff must conform to the requirements of Rule 8 of the Federal

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Rules of Civil Procedure. For example, the amended complaint must set forth in a clear

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and simple manner the basis for federal court jurisdiction, state a cause of action that

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shows Plaintiff is entitled to relief, and provide a demand for relief.

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Plaintiff is advised that if he elects to file an amended complaint but fails to

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comply with the instructions explained in this Order, the action will be dismissed

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pursuant to 28 U.S.C. § 1915(e), Rule 41(b) of the Federal Rules of Civil Procedure, or

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both. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal

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with prejudice of amended complaint that did not comply with Rule 8(a)); Nevijel v.

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North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1965) (affirming dismissal
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without leave to amend second complaint that was “so verbose, confused and redundant

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that its true substance, if any, [was] well disguised”). Accordingly,

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IT IS ORDERED:

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1. That the Court’s Order dated July 9, 2014 (Doc. 9) is vacated;

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2. That the Initial Discovery Protocols Standing Order (Doc. 5) issued on June

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12, 2014 is vacated;
3. That the Complaint (Doc. 1) is dismissed for failure to comply with Rule 8 of
the Federal Rules of Civil Procedure;
4. That Plaintiff is granted leave to file an amended complaint in accordance with
this Order no later than July 31, 2014;

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5. That if Plaintiff elects to file an amended complaint, the amended complaint

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may not be served until and unless the Court screens it pursuant to 18 U.S.C. §

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1915(e)(2); and

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6. That if Plaintiff elects not to file an amended complaint by July 31, 2014, the

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Clerk of Court shall dismiss and terminate this action without further order of

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this Court.

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Dated this 11th day of July, 2014.

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Honorable Steven P. Logan
United States District Judge

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