Marks v. Walmart Supercenter #2113

Filing 23

ORDER: The Motion to Dismiss (Doc. 20 ) is GRANTED. The amended complaint (Doc. 17 ) is DISMISSED. ORDERED the Motion for Leave to File Second Amended Complaint (Doc. 21 ) is DENIED. FURTHER ORDERED the Clerk of Court shall enter judgment in favor of Defendant and close this case. Signed by Judge Krissa M Lanham on 11/26/24. (EJA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Chester Lee Marks,
Plaintiff,

10
11

v.

12

Walmart Supercenter #2113,

13

No. CV-24-00381-PHX-KML
ORDER

Defendant.

14
15

On September 11, 2024, the court dismissed plaintiff Chester Lee Marks’s initial

16

complaint. (Doc. 16.) The court noted the complaint was difficult to follow but appeared

17

to be based on defendant Walmart allegedly discriminating against Marks in connection

18

with his employment application. The court dismissed without leave to amend Mark’s

19

claims alleging Walmart’s actions violated his constitutional rights. The court also

20

dismissed Marks’s statutory discrimination claims but granted Marks leave to amend them.

21

Marks filed documents after that order that now establish dismissal without leave to amend

22

is appropriate.

23

I.

Background

24

Marks’s filings after the dismissal of his initial complaint are again difficult to

25

understand. On September 24, 2024, Marks filed what he labeled his “Amended

26

Complaint.” (Doc. 17.) That document, however, did not reference Walmart. Instead, the

27

amended complaint stated, in full:

28

Pursuant to rule 15 Ariz, R. Civil P. the Plaintiff is part of the
DEPARTMENT OF JUSTICE INVESTIGATION and

REPORT FACTUAL FINDING on the City of Phoenix and
Phoenix City Police Department discriminatory practices
against black people and other races constitutional rights
violations.

1
2
3

The Plaintiff reserve the Constitutional rights to amend his
complaint pursuant to federal district court statutory rule and
claims pleading under the United States Constitution. To wit:

4
5
6

(Doc. 17.) Neither the Department of Justice nor the City of Phoenix Police Department is

7

relevant to the present suit.

8

Walmart moved to dismiss the amended complaint. (Doc. 20.) As required by Local

9

Rule 12.1(c), the motion was accompanied by a certificate stating Walmart’s counsel had

10

discussed the basis for the motion to dismiss with Marks but he did not wish to amend his

11

complaint. (Doc. 20 at 7.) Instead of responding to the motion to dismiss, Marks filed a

12

document titled “Order Granting Plaintiff Leave to File Second Amended Complaint.”

13

(Doc. 21 at 1.) That document does not explain why Marks’s amended complaint

14

referenced only the Department of Justice and the City of Phoenix Police, but does seem

15

to try to reallege claims against Walmart. Construing the document as a proposed second

16

amended complaint, it does not meaningfully improve on the allegations in Marks’s

17

complaint the court already dismissed.

18

According to the proposed second amended complaint, Marks has established his

19

“PRIMA FACIE case . . . based upon Arizona statutory law and discrimination law acts.”

20

(Doc. 21 at 2.) Marks alleges “Walmart manager Nelly and her co-worker employees”

21

discriminated against him, but there are no allegations indicating what Nelly or her co-

22

workers did. Instead of providing factual allegations, Marks seems to believe he should not

23

be required to explain the basis for this suit. Marks’s “understanding” is “that you can sue

24

Dogs and Cats under the United States for constitutional rights violations. Therefore, under

25

civil proceedings any living organ or person can be sue.”1 (Doc. 21 at 2.)

26

1

27
28

Marks does not cite any authority for this understanding, and it is unlikely a dog, cat, or
any other non-human would be a proper defendant in a suit for constitutional rights
violations. Cf. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004) (holding
Congress had not authorized suit brought by “all of the world’s whales, porpoises, and
dolphins”); Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (concluding monkey could
not bring claim under Copyright Act).
-2-

1

II.

Analysis

2

To survive a motion to dismiss “a complaint must contain sufficient factual matter,

3

accepted as true” and viewed in the light most favorable to the nonmoving party “to state

4

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

5

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This does not require

6

“detailed factual allegations,” but does require “more than an unadorned, the-defendant-

7

unlawfully-harmed-me accusation.” Id. “Threadbare recitals of the elements of a cause of

8

action, supported by mere conclusory statements, do not suffice.” Id.

9

The amended complaint filed on September 24, 2024, must be dismissed because it

10

contains no allegations against Walmart, the only named defendant. As for Marks’s “Order

11

Granting Plaintiff Leave to File Second Amended Complaint,” the court construes that

12

document as both a motion to file a second amended complaint and the proposed second

13

amended complaint.

14

“Although leave to amend should be given freely, denying leave is not an abuse of

15

discretion if it is clear that granting leave to amend [will be] futile.” In re Cloudera, Inc.,

16

--- F.4th ----, 2024 WL 4821506, at *6 (9th Cir. Nov. 19, 2024) (quotation marks and

17

citation omitted). Marks’s request to amend does not remedy the most significant flaws

18

identified by the court when dismissing the initial complaint. As explained by the court,

19

Marks had not included sufficient factual allegations explaining the type of claim he was

20

attempting to pursue. That is, it was unclear if Marks was attempting to allege Walmart

21

had failed to hire him based on his race or age or if he had been hired and then “subjected

22

to disparate treatment based on his race or age.” (Doc. 16 at 4.) Marks’s proposed second

23

amended complaint does not clear up that confusion. (Doc. 21 at 2) (alleging Marks

24

“accepted the job offer” but also Marks “does not know who get the job after it was offered

25

to me”).

26

Another reason for dismissing Marks’s initial complaint was his failure to make any

27

“allegations hinting that Walmart’s actions were based on a prohibited intent.” (Doc. 16 at

28

5.) The proposed second amended complaint suffers from the same flaw. The closest to a

-3-

1

substantive allegation the proposed second amended complaint contains is a statement that

2

“Walmart manager Nelly and her co-worker employees” discriminated against Marks.

3

(Doc. 21 at 2.) But a pleading is not sufficient if it contains only “an unadorned, the-

4

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

5

S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

6

The court’s prior order granted Marks leave to amend but he responded by filing a

7

complaint referencing only the Department of Justice and the City of Phoenix Police

8

Department. When Walmart discussed the flaws in that complaint before moving to

9

dismiss, Marks indicated he would not file an amended complaint. After Walmart filed its

10

motion to dismiss, Marks filed a proposed second amended complaint that did not fix the

11

flaws identified in the court’s prior order. Given Marks’s behavior, there is “no reason to

12

believe that [Marks] would do better with another try” if he were again granted leave to

13

mend. Cloudera, Inc., 2024 WL 4821506, at *7. Thus, leave to amend is denied.

14

Accordingly,

15

IT IS ORDERED the Motion to Dismiss (Doc. 20) is GRANTED. The amended

16
17
18
19
20
21

complaint (Doc. 17) is DISMISSED.
IT IS FURTHER ORDERED the Motion for Leave to File Second Amended
Complaint (Doc. 21) is DENIED.
IT IS FURTHER ORDERED the Clerk of Court shall enter judgment in favor of
Defendant and close this case.
Dated this 26th day of November, 2024.

22
23
24
25
26
27
28

-4-