Minch v. Arizona State Board of Nursing et al

Filing 6

ORDER: Plaintiff Alice Minch's Application for Leave to Proceed In Forma Pauperis 2 is granted. Plaintiff's Complaint 1 is dismissed. Plaintiff may file an Amended Complaint that complies with the Federal Rules of Civil Procedure no later than 21 days from the date of this Order. If no Amended Complaint is timely filed, the Clerk shall dismiss this action without further Order of the Court. Signed by Judge John J Tuchi on 8/17/2017. (REK)

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alice Minch, No. CV-17-02525-PHX-JJT Plaintiff, 10 11 v. 12 Arizona State Board of Nursing, et al., 13 ORDER Defendants. 14 15 16 At issue is pro se Plaintiff Alice Minch’s Application for Leave to Proceed In 17 Forma Pauperis (Doc. 2). Having determined that Plaintiff is unable to pay the Court’s 18 fees, the Court grants the Application. However, as set forth below, upon screening 19 Plaintiff’s Complaint (Doc. 1, Compl.) pursuant to 28 U.S.C. § 1915(e)(2), the Court finds 20 that Plaintiff fails to state a plausible claim on which this Court may grant relief. 21 I. LEGAL STANDARDS 22 A. 28 U.S.C. § 1915(e)(2) 23 For cases in which a party is permitted to proceed in forma pauperis—that is, the 24 party lacks the means to pay court fees—Congress provided that a district court “shall 25 dismiss the case at any time if the court determines” that the “allegation of poverty is 26 untrue” or that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on 27 which relief may be granted,” or “seeks monetary relief against a defendant who is immune 28 from such relief.” 28 U.S.C. § 1915(e)(2). Section 1915(e) applies to all in forma pauperis 1 proceedings. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). “It is also clear that 2 section 1915(e) not only permits but requires a district court to dismiss an in forma 3 pauperis complaint that fails to state a claim.” Id. at 1127. 4 B. 5 A complaint must include “a short and plain statement of the claim showing that the 6 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain “sufficient 7 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 9 544, 570 (2007)). A dismissal under Rule 12(b)(6) for failure to state a claim can be based 10 on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a 11 cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 12 1990). The Court is to construe a pro se plaintiff’s complaint “liberally” and afford the 13 plaintiff “the benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) 14 (citation omitted). However, even where a complaint has the factual elements of a cause of 15 action present but scattered throughout the complaint and not organized into a “short and 16 plain statement of the claim,” it may be dismissed for failure to satisfy Rule 8(a). Sparling 17 v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). 18 II. Sufficiency of a Claim ANALYSIS 19 A. Pleading Requirements 20 Plaintiff’s Complaint alleges that Defendants violated Title VII of the Civil Rights 21 Act of 1964 by discriminating against Plaintiff on the basis of her religion. (Compl. 7–8.) 22 Plaintiff has named as Defendants the Arizona State Board of Nursing and twenty 23 individuals, all of whom Plaintiff lists as either current or former members of the Board. 24 (Compl. 1–6.) Although the extent of Plaintiff’s alleged injury is not entirely clear from 25 the face of the Complaint, the Court construes the Complaint as challenging the 26 revocation of Plaintiff’s nursing license by Defendants. (Compl. 22.) 27 Title VII prohibits “employer[s],” “employment agenc[ies],” and “labor 28 organizations” from discriminating on the basis of “race, color, religion, sex, or national -2- 1 origin.” 42 U.S.C § 2000e-2(a)-(c). The Act, however, further defines an “employer” as 2 “a person engaged in an industry affecting commerce who has fifteen or more employees 3 for each working day in each of twenty or more calendar weeks in the current or 4 preceding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b). As such, 5 the plain text of Title VII indicates that it does not apply to professional licensing boards, 6 such as the Arizona State Board of Nursing and its agents, when acting in a licensing 7 capacity. See Haddock v. Bd. of Dental Exam’rs, 777 F.2d 462, 463–64 (9th Cir. 1985) 8 (“The Board is neither an ‘employer,’ an ‘employment agency,’ nor a ‘labor 9 organization’ within the meaning of the Act.”). Plaintiff fails to allege that Defendants 10 either paid her wages or engaged her services, nor does she allege that any employer- 11 employee relationship has ever existed between the parties. Therefore, Plaintiff fails to 12 state a cognizable claim against Defendants under Title VII. See Haddock, 777 F.2d at 13 464. 14 B. 15 If a defective complaint can be cured, the plaintiff is entitled to amend the 16 complaint before the action is dismissed. See Lopez, 203 F.3d at 1127–30. Here, the 17 Court will give Plaintiff an opportunity to amend her Complaint, but any Amended 18 Complaint must meet the requirements of the Federal Rules of Civil Procedure. Leave to Amend 19 For links to the Federal Rules of Civil Procedure and Local Rules as well as 20 information about creating a complaint and filing it in this Court, Plaintiff may refer to the 21 section entitled “For those Proceeding Without an Attorney” on the Court’s website, 22 www.azd.uscourts.gov. IT IS THEREFORE ORDERED granting Plaintiff Alice Minch’s Application 23 24 for Leave to Proceed In Forma Pauperis (Doc. 2). IT IS FURTHER ORDERED that Plaintiff’s Complaint (Doc. 1) is dismissed. 25 26 .... 27 .... 28 .... -3- 1 IT IS FURTHER ORDERED that Plaintiff may file an Amended Complaint that 2 complies with the Federal Rules of Civil Procedure no later than 21 days from the date of 3 this Order. If no Amended Complaint is timely filed, the Clerk shall dismiss this action 4 without further Order of the Court. 5 Dated this 17th day of August, 2017. 6 7 8 Honorable John J. Tuchi United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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