Contreras v. Moreno et al

Filing 8

ORDER Dismissing Complaint With Leave to Amend signed by Magistrate Judge Dennis L. Beck on 1/20/2009. Amended Complaint due by 2/23/2009. (Esteves, C)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 ROCKY MEL CONTRERAS, 9 10 Plaintiff, 11 v. 12 ERNIE MORENO, et al., 13 14 Defendants. 15 16 Plaintiff Rocky Mel Contreras, appearing pro se and proceeding in forma pauperis, filed 17 this civil rights and employment discrimination action on January 14, 2009. He names Ernie 18 Moreno and Albright Electric, Inc., as Defendants. 19 DISCUSSION 20 A. 21 Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the 22 complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof 23 if the court determines that the action is legally "frivolous or malicious," fails to state a claim 24 upon which relief may be granted, or seeks monetary relief from a defendant who is immune 25 from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state 26 a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be 27 cured by amendment. 28 1 Screening Standard ) 1:09cv0087 OWW DLB ) ) ) ) ORDER DISMISSING COMPLAINT ) WITH LEAVE TO AMEND ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT

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In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Fed. R. Civ. P. 8(a) provides: A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support Plaintiff's claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998). B. Plaintiff's Allegations Plaintiff's one-page complaint is severely lacking in details. He appears to be alleging claims for gender discrimination under Title VII of the Civil Rights Act of 1964, and violations of his civil rights under 42 U.S.C. § 1983. Plaintiff names both Ernie Moreno and Albright Electric, Inc. in the caption of the complaint, and alleges that "Ernie Moreno (Foreman) representative of Albright Electric, Inc." violated Title VII and Plaintiff's equal protection and due process rights. Although Plaintiff cites to numerous cases, his factual allegations are sparse. His sole allegation is that "Defendant threatened [him] and is preventing [him] from entering a public 2

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parking area." Plaintiff alleges that he has suffered "mentally and emotionally due to the Defendant's threat and abuse of [his] federally protected rights." C. Analysis Plaintiff's Complaint is deficient under Rule 8, which requires enough factual detail to give Defendants fair notice of the allegations against them. Plaintiff provides only a vague, onesentence explanation of his claim, which insufficient to apprise Defendants of his claims. However, Plaintiff will be given an opportunity to amend, as discussed below. The vagueness of Plaintiff's complaint also prevents the Court from thoroughly screening his claims. The Court therefore provides Plaintiff with the following legal standard to assist him in amending his complaint. Plaintiff should carefully review the standards and amend only those claims that he believes, in good faith, are cognizable. 1. Title VII Action

Title VII of the Civil Rights Act of 1964 provides as follows: (b) Employment agency practices It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin. 42 U..S.C. § 2000e-2(b).

18 A prima facie case of discrimination requires that Plaintiff (1) show a significant 19 disparate impact on a protected class, (2) identify specific employment practices or selection 20 criteria and (3) show the causal relationship between the identified practices and the impact. 21 Donoghue v. Orange County, 848 F.2d 926, 932 (9th Cir. 1987). 22 Insofar as Plaintiff is attempting to allege a hostile work environment based on gender, a 23 prima facie case requires proof that (1) he was subjected to verbal or physical conduct because of 24 his gender; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or 25 pervasive to alter conditions of his employment and create an abusive work environment. 26 Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998). 27 28 3

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Plaintiff is further advised that Title VII has an exhaustion requirement. A person seeking relief under Title VII must first file a charge with the Equal Employment Opportunity Commission ("EEOC") within 180 days of the alleged unlawful employment practice, or, if the person initially instituted proceedings with the state or local administrative agency, within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). If the EEOC does not bring suit based on the charge, the EEOC will issue a "right to sue letter." 42 U.S.C. § 2000e-5(f)(1). Once a person received this letter, he has 90 days to file suit. 42 U.S.C. § 2000e-5(f)(1). Although Plaintiff states in a separate filing that he attached the Notice of Right to Sue letter to his complaint, the Notice is not attached. Without the letter or related allegations, the Court cannot determine whether Plaintiff exhausted a Title VII claim. 2. 42 U.S.C. § 1983 Claims

Plaintiff cannot state a civil rights claim under section 1983 because Defendants are not government actors. To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). There is no indication that Defendants were acting under color of state law. It therefore appears that Plaintiff cannot state a section 1983 claim against these Defendants. ORDER For these reasons, Plaintiff's complaint must be dismissed. He will be given an opportunity to amend his complaint, however, to correct these deficiencies. Again, Plaintiff should only amend those claims that he believes, given the above standards, are cognizable. Plaintiff must submit an amended complaint within thirty (30) days. Failure to do so will result in a recommendation that this action be dismissed. Plaintiff is reminded that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an 4

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original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.

IT IS SO ORDERED. Dated: 3b142a

January 20, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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