Marilyn Gladle v. U. S. Department of Veterans Affairs et al

Filing 35

MINUTES (IN CHAMBERS) - DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT 32 by Judge Christina A. Snyder: In accordance with the foregoing, the Court GRANTS WITHOUT PREJUDICE defendant's motion to dismiss the FAC. Plaintiff is hereby granted twenty-one (21) days to file an amended complaint addressing the deficiencies identified herein. Failure to do so may result in dismissal of plaintiff's complaint with prejudice. IT IS SO ORDERED. (clee)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-00057-CAS(FFMx)

Title

MARILYN GLADLE v. ROBERT MCDONALD

Present: The Honorable

Date

April 19, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) - DEFENDANT’S MOTION TO DISMISS
PLAINTIFF’S FOURTH AMENDED COMPLAINT

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of April 25,
2016, is vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION

On January 5, 2015, plaintiff Marilyn Gladle initiated this action against
defendants the United States Department of Veterans Affairs (“the VA”), Robert A.
McDonald, Secretary of the VA (“McDonald”), and a number of VA employees. Dkt. 1.
On August 7, 2015, plaintiff filed a First Amended Complaint naming only the VA and
McDonald as defendants. Dkt. 11. Thereafter, the parties entered into a joint stipulation
permitting plaintiff to file a Second Amended Complaint. Dkt. 15. Plaintiff filed her
Second Amended Complaint on October 12, 2015. Dkt. 19. On November 30, 2015,
plaintiff attempted to file a Third Amended Complaint; however, this complaint was
stricken by the Court because plaintiff had not been granted leave to file an amendd
complaint. Dkt. 23.
On December 4, 2015, defendants filed a motion to dismiss plaintiff’s Second
Amended Complaint arguing, inter alia, that plaintiff had failed to comply with the
requirement of Federal Rule of Civil Procedure 8(a) that her complaint contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Dkt. 25.
On January 4, 2016, the Court granted defendants’ motion without prejudice. Dkt. 28.
On February 4, 2016, plaintiff filed the operative Fourth Amended Complaint (“FAC”) in
this action naming only McDonald as a defendant. Dkt. 29. The FAC asserts claims
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

against McDonald for: (1) Discrimination – Denial of Reasonable Accommodation; (2)
Discrimination – Failure to Engage in Interactive Process; (3) Retaliation – Title VII; (4)
Retaliation – 1973 Rehabilitation Act; and (5) Harassment – 1973 Rehabilitation Act. Id.

On March 21, 2016, defendant filed a motion to dismiss the FAC. Dkt. 32. On
April 4, 2016, plaintiff filed an opposition, Dkt. 33, and on April 11, 2016, defendant
filed a reply, Dkt. 34. Having carefully considered the parties’ arguments, the Court
finds and concludes as follows.
II.

BACKGROUND

Plaintiff is an employee of the VA residing in Los Angeles. FAC ¶¶ 1, 4. In
January, 2010, plaintiff was diagnosed with permanent physical disabilities in her knees
which affected her ability to walk and bend. Id ¶ 6. In her complaint, plaintiff alleges
that the VA discriminated against her on the basis of her disability. For example, plaintiff
alleges that, on April 27, 2010, her supervisor ordered her “to get under her desk” during
a fire drill, despite plaintiff’s protests that she would be unable to do so with her knee
condition. Id. ¶ 8. Plaintiff also alleges that, on May 6, 2011, she received a letter from
the VA offering her a job at a different VA location. Id. ¶ 21. Moving to the new
location could have caused exacerbation of plaintiff’s disability, but plaintiff alleges she
felt intimidated to take the transfer. Id. Plaintiff declined the job offer, but nevertheless
was informed, on August 24, 2011, that she had been transferred to a different VA
location in West Los Angeles. Id. ¶ 23. In addition, plaintiff claims that one of her
supervisors spread rumors at the VA that plaintiff had been falsifying her medical claims.
Id. ¶ 24. And, on July 29, 2013, plaintiff claims that another supervisor marked her as
being absent from work without permission despite knowledge that plaintiff was
recovering from a surgery. Id. ¶ 26.
Plaintiff also alleges that she has filed a number of complaints with the VA. See,
e.g., ¶¶ 9, 20, 25. Plaintiff contends that, in addition to discriminating against her on the
basis of her disability, defendant retaliated against her for filing these complaints. For
example, plaintiff alleges that unspecified individuals at the VA yelled at her in front of
patients and staff, spread rumors that she was stealing prescription pads, and falsely
reported that her injuries were due to willful misconduct and intoxication. Id. ¶¶ 49, 54.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

On December 10, 2014, plaintiff filed an informal complaint through the VA’s
internal grievance process based on the above conduct. Id. ¶ 29. Plaintiff contends that
this process reached no resolution. Id. Thereafter, on January 5, 2015, plaintiff initiated
the instant action. Dkt. 1.
III.

LEGAL STANDARD
A.

Federal Rule of Civil Procedure 8

Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8(a)”) provides that a
pleading stating a claim for relief 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). In order to meet
this standard, a claim for relief must be stated with “brevity, conciseness, and clarity.”
See Charles A. Wright & Arthur R. Miller, 5 Fed. Practice and Procedure § 1215 (3d ed.).
The purpose of Rule 8(a) is to ensure that a complaint “fully sets forth who is being sued,
for what relief, and on what theory, with enough detail to guide discovery.” McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
B.

Federal Rule of Civil Procedure 12(b)(6)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
IV.

ANALYSIS
A.

Federal Rule of Civil Procedure 8(a)

Defendant argues first that the FAC should be dismissed for failure to comply with
Rule 8. As stated above, the Court previously dismissed plaintiff’s Second Amended
Complaint (“SAC”) for failure to comply with Rule 8. Dkt. 28. However, compared to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

the SAC, the FAC is significantly shorter and clearly sets forth, in chronological order,
the events that form the basis of plaintiff’s claims.
Defendant contends that the FAC still fails to clearly identify which factual
allegations support each of plaintiff’s individual claims. While plaintiff does not always
align the factual allegations in the FAC with her individual claims, compared to her
previous pleadings, the Court finds that the FAC is not so prolix or convoluted that
defendant is unable to discern the basis of plaintiff’s claims. In fact, defendant’s
argument is belied by the fact that, in the remainder of its motion, it has been able to set
forth detailed argument as to why the FAC should alternatively be dismissed, on its
merits, pursuant to Federal Rule of Civil Procedure 12(b)(6). Accordingly, the Court
finds that the FAC sufficiently complies with the requirements of Rule 8.
B.

Plaintiff’s First Claim: Discrimination––Denial of Reasonable
Accommodation

Plaintiff’s first claim is entitled “Discrimination–Denial of Reasonable
Accommodation.” Plaintiff does not expressly state under which law this claim arises;
however, when read in conjunction with the remainder of the FAC and plaintiff’s
opposition, it appears most likely that this claim arises under the Rehabilitation Act of
1973. “A failure to provide reasonable accommodation can constitute discrimination
under section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288 F.3d 1145, 1154
(9th Cir. 2002). To state a claim for failure to accommodate a disability, a plaintiff must
show that: (1) she is disabled, (2) she is a qualified individual, and (3) that a reasonable
accommodation is possible. See Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041,
1045 (9th Cir.1999). A “reasonable accommodation” is defined as “modifications or
adjustments to the work environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable a qualified individual with
a disability to perform the essential functions of that position.” 29 C.F.R. §
1630.2(o)(1)(ii).
In the FAC, plaintiff alleges that she suffers from a permanent disability in her
knees, which affects two of her major life activities––namely, her ability to (1) walk and
(2) bend. FAC ¶¶ 6, 31. In addition, plaintiff identifies five distinct incidents in which
defendant purportedly failed to make reasonable accommodations for this disability. Id.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

¶¶ 31-35. Nonetheless, plaintiff fails to allege sufficient details regarding any of these
incidents to state a claim for failure to accommodate.
At the pleading stage, a plaintiff must, at a minimum, “describe the requested
accommodation and allege when and to whom it was made.” Abdul-Haqq v. Kaiser
Found. Hosps., 2015 WL 335863, at *3 (N.D. Cal. Jan. 23, 2015). In four of the five
incidents identified in the FAC, plaintiff fails to allege “when and to whom” she
requested an accommodation. See FAC ¶¶ 32-35. Moreover, in three of these incidents,
plaintiff states that defendant denied her a reasonable accommodation by: (1) denying her
access to her hard drive, Id. ¶ 33; (2) reassigning her to the VA’s West Los Angeles
campus, Id. ¶ 34; and (3) refusing to provide her with software and a headset, Id. ¶ 35.
Yet plaintiff fails to explain how any of these accommodations would have enabled her to
perform the essential functions of her job, let alone how they relate to her disability. See
also Anaya v. Marin Cnty. Sheriff, 2014 WL 6660415, at *11 (N.D. Cal. Nov. 24, 2014)
(dismissing plaintiff’s failure to accommodate claim where plaintiff did not identify why
requested reasonable accommodations were necessary).
Finally, plaintiff alleges that, on April 27, 2010, during a “non-emergency, routine,
mock fire drill,” she was instructed to “get under her desk.” FAC ¶ 31. In light of her
disability, plaintiff asked her supervisor if there was something she could do besides
getting under her desk, but her supervisor allegedly denied this request. Id. Nonetheless,
as previously noted, “reasonable accommodations” are defined as “modifications or
adjustments to the work environment . . . that enable a qualified individual with a
disability to perform the essential functions of that position.” 29 C.F.R. §
1630.2(o)(1)(ii) (emphasis added). In the FAC, plaintiff fails to allege how participating
in a “non-emergency, routine mock fire drill” constitutes an “essential function” of her
position at the VA. See also 29 C.F.R. 1630.2(n)(1) (“The term ‘essential functions’ does
not include the marginal functions of the position.”). Rather, it appears to the Court that
the April 27, 2010 incident was more in the nature of an isolated occurrence, unrelated to
plaintiff’s job duties and responsibilities.
Accordingly, plaintiff has failed to plead the minimal allegations necessary to state
a claim for denial of reasonable accommodation under the Rehabilitation Act of 1973.
Defendant’s motion to dismiss is, therefore, GRANTED as to plaintiff’s first claim for
relief.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Title

MARILYN GLADLE v. ROBERT MCDONALD
C.

Date

‘O’

April 19, 2016

Plaintiff’s Second Claim: Discrimination––Failure to Enter Into
Interactive Process

Plaintiff’s second claim is entitled “Discrimination––Failure to Enter Into
Interactive Process.” Again, while plaintiff has failed to identify expressly under which
law this claim arises, it appears most likely that she is asserting a claim under the
Rehabilitation Act of 1973. “[O]nce the need for accommodation has been established,
there is a mandatory obligation to engage in an informal interactive process to clarify
what the individual needs and identify the appropriate accommodation.” Vinson, 288
F.3d at 1154 (citations omitted). “This interactive process is triggered upon notification
of the disability and the desire for accommodation.” Id. Nonetheless, there is no
“stand-alone claim for failure to engage in the interactive process.” Yonemoto v.
McDonald, 114 F. Supp. 3d 1067, 1114 (D. Haw. 2015); see also Barnett v. U.S. Air,
Inc., 157 F.3d 744, 752 (9th Cir. 1998) (“We do not agree . . . that an employer can be
independently liable for failing to engage in an interactive process.”), vacated on other
grounds by 535 U.S. 391 (2002); Bunn v. Khoury Enters., Inc., 753 F.3d 676, 683 (7th
Cir. 2014) (noting that, while the EEOC’s regulations may require an employer “to
initiate an informal, interactive process with the [employee] to determine an appropriate
accommodation, there is no separate cause of action for a failure of that interactive
process.”) (citations omitted).
Accordingly, plaintiff’s second claim for failure to enter into an interactive process
is not a viable claim for relief. The Court, therefore, GRANTS defendant’s motion to
dismiss plaintiff’s second claim for relief.
D.

Plaintiff’s Third and Fourth Claims: Retaliation in Violation of Title
VII and the Rehabilitation Act of 1973

Plaintiff’s Third and Fourth claims are for retaliation in violation of both Title VII
of the Civil Rights Act and the Rehabilitation Act. The standards for establishing
retaliation are the same under both Title VII and the Rehabilitation Act. Brooks v.
Capistrano Unified Sch. Dist., 1 F. Supp. 3d 1029, 1035-36 (C.D. Cal. 2014). A plaintiff
may establish a prima facie case of retaliation by showing that: “(1) she engaged in
protected activity; (2) she suffered a materially adverse employment action; and (3) there
exists a causal connection between the protected activity and the adverse employment
action.” Id. at 1036.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

While not particularly clear on the face of the FAC, it appears that plaintiff is
asserting that she was retaliated against after she filed a series of complaints with her
employer, the VA. See FAC ¶¶ 48, 53. Defendant does not seem to dispute that the
filing of these complaints constitutes protected activity. Moreover, in the FAC, plaintiff
has identified at least six purported “adverse employment actions”: (1) improperly citing
plaintiff as being absent from work when she was recovering from a surgery; (2) failing
to investigate allegations of retaliation and harassment by plaintiff’s supervisors and
coworkers; (3) spreading rumors that plaintiff stole prescription pads and made false
EEOC claims; (4) yelling at plaintiff in front of patients and staff; (5) falsely reporting
that plaintiff’s knee injury was due to willful misconduct or intoxication; and (6) ordering
plaintiff to go under her desk during a mock fire drill. Id. ¶¶ 49, 54.
However, assuming arguendo that these incidents constitute “adverse employment
actions,” plaintiff has failed to allege sufficient facts demonstrating a causal connection
between her complaints to the VA and these purportedly adverse employment actions.
Plaintiff states conclusorily that “[d]efendant’s motive for retaliation was related to
[plaintiff’s] participating in the protected activity.” Id. ¶¶ 51, 57. However, plaintiff
alleges no facts regarding the circumstances under which these events occurred.
Moreover, and crucially, plaintiff does not identify who engaged in these activities or
whether those individuals were even aware that she had filed complaints with the VA.
See also Brooks, 1 F. Supp. 3d at 1037 (“In general, if the decision maker does not have
knowledge of the plaintiff’s protected activity, there can be no retaliation for engaging in
that activity.”); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (“Essential
to a causal link is evidence that the employer was aware that the plaintiff had engaged in
the protected activity.”).
Accordingly, the Court finds that plaintiff has failed to state a claim for retaliation
under either Title VII or the Rehabilitation Act. The Court, therefore, GRANTS
defendant’s motion to dismiss plaintiff’s third and fourth claims for relief.
E.

Plaintiff’s Fifth Claim: Harassment in Violation of the Rehabilitation
Act

Plaintiff’s fifth and final claim is for harassment in violation of the Rehabilitation
Act. A claim for harassment based on disability require the plaintiff to show that: (1)
plaintiff is a qualified individual with a disability under the Rehabilitation Act; (2) she
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

was subject to unwelcome harassment; (3) the harassment was based on her disability or
a request for an accommodation; (4) the harassment was sufficiently severe or pervasive
to alter the conditions of her employment and to create an abusive working environment;
and (5) that defendant knew or should have known of the harassment and failed to take
prompt effective remedial action. Ostrofsky v. Dept. of Rehab., 2009 WL 3011578, at *8
(E.D. Cal. Sep. 17, 2009).
In the FAC, Plaintiff bases her harassment claim on virtually the same allegations
as her retaliation claims. Plaintiff identifies the same six incidents, this time labeled as
“harassing conduct.” FAC ¶ 61. But, once again, plaintiff fails to identify who engaged
in these specific acts, or whether those individuals were even aware that plaintiff had a
disability or had requested an accommodation. In fact, nowhere in the FAC does plaintiff
allege, even conclusorily, that she was harassed “based on her disability or a request for
accommodation.” Moreover, to constitute harassment, conduct must be “sufficiently
severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an
abusive working environment.” Horvath v. Dalton, 1999 WL 13714, at * 9 (N.D. Cal.
Jan. 7, 1999). Here, plaintiff alleges only conclusorily that defendant’s conduct was
“severe.” FAC ¶ 62. This is insufficient to state a claim for harassment. See Iqbal, 556
U.S. at 678 (“naked assertion[s]’ devoid of further factual enhancement” will not suffice)
(citations and internal quotation marks omitted).
Accordingly, plaintiff has failed to state a claim for harassment. The Court,
therefore, GRANTS defendant’s motion to dismiss plaintiff’s fifth claim for relief.
V.

CONCLUSION

In accordance with the foregoing, the Court GRANTS WITHOUT PREJUDICE
defendants motion to dismiss the FAC. Plaintiff is hereby granted twenty-one (21) days

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00057-CAS(FFMx)

Date

Title

‘O’

April 19, 2016

MARILYN GLADLE v. ROBERT MCDONALD

to file an amended complaint addressing the deficiencies identified herein. Failure to do
so may result in dismissal of plaintiff’s complaint with prejudice.1
IT IS SO ORDERED.
00
Initials of Preparer

:

00

CMJ

1

The Government requests that the Court grant its motion to dismiss with
prejudice. However, while plaintiff has had several opportunities to amend her
complaint, this is the first time the Court has addressed the merits of plaintiff’s claims.
Moreover, plaintiff has been proceeding pro se for much of the pendency of this action,
and has only recently obtained counsel. Accordingly, the Court finds it appropriate to
grant plaintiff leave to amend her complaint. Nevertheless, the Court notes that plaintiff
has attached a draft Fifth Amended Complaint to her opposition. While plaintiff
contends that this draft complaint cures the defects in the FAC, it in fact contains many of
the same conclusory and unsupported allegations as the FAC and, likewise, appears to
fail to state a claim for relief. Moreover, like many of plaintiff’s previous complaints, the
proposed Fifth Amended Complaint may not satisfy the requirements of Rule 8. For
example, the draft complaint contains long lists of facts without clearly explaining how
those facts support plaintiff’s individual claims. Thus, the Court cautions plaintiff that
merely submitting this proposed Fifth Amended Complaint will likely be considered
insufficient to cure the defects noted supra.
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