Goodmon v. Big O Tires, Inc.

Filing 6

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND signed by Magistrate Judge Dennis L. Beck on 4/8/2010. (Sant Agata, S)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 MICHAEL T. GOODMON, 9 10 Plaintiff, 11 v. 12 BIG O TIRES, INC., 13 14 Defendant. 15 16 Plaintiff Michael T. Goodmon ("Plaintiff"), appearing pro se and proceeding in forma 17 pauperis, filed the instant action on March 30, 2010. Plaintiff alleges violations of the Americans 18 with Disabilities Act by his former employer, Defendant Big O Tires, Inc, doing business as Big 19 O Tires/Sierra Quick Lube & Auto Repair ("Defendant"). 20 DISCUSSION 21 A. 22 Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the 23 complaint for sufficiency to state a claim. The Court must dismiss a complaint or portion thereof 24 if the Court determines that the action is legally "frivolous or malicious," fails to state a claim 25 upon which relief may be granted, or seeks monetary relief from a defendant who is immune 26 from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state 27 28 1 Screening Standard ) 1:10cv0550 OWW DLB ) ) ) ) ORDER DISMISSING COMPLAINT ) WITH LEAVE TO AMEND ) ) ) ) ) ) ) )

UNITED STATES DISTRICT COURT

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a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Fed. R. Civ. P. 8(a) provides: A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief: and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. A complaint must contain a short and plain statement as required by Fed. R. Civ. P.

8 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair 9 notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. 10 Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of 11 particularity overt acts which the Defendants engaged in that support Plaintiff's claim. Id. 12 Although a complaint need not outline all elements of a claim, it must be possible to infer from 13 the allegations that all elements exist and that there is entitlement to relief under some viable 14 legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); 15 Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998). 16 In reviewing a complaint under this standard, the Court must accept as true the allegations 17 of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 18 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick 19 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, 20 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 21 B. 22 Plaintiff alleges that on August 15, 2008, he asked Manager Jason Cieselinski to discuss 23 "the doctors orders after a work related injury." Mr. Cieselinski replied that he did not have to 24 follow any doctor's orders and was told to "stay out of it" by the insurance company. Plaintiff 25 alleges that Mr. Cieselinski told him that if he could not do the work, he should quit. He had 26 approached Mr. Cieselinski several times before this, but Mr. Cieselinski stated that he was busy. 27 28 2 Plaintiff's Allegations

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Plaintiff also alleges that he informed Mr. Cieselinski of a slip and fall that occurred earlier in the day and of his intention to go to the doctor and take a few days off. Mr. Cieselinski told Plaintiff that he should just quit, and Plaintiff replied that if he needed to quit to go to the doctor, then he quit. Plaintiff alleges that Mr. Cieselinski's unwillingness to accommodate the doctor's orders violates the Americans with Disabilities Act. Plaintiff further alleges that on August 16, 2008, he contacted Michael J. Sullivan and informed him of Mr. Cieselinski's actions. Mr. Sullivan told Plaintiff that he needed to speak to Mr. Cieselinski and would get back to him. On August 20, 2008, Plaintiff alleges that Mr. Sullivan called him and told him that he was no longer employed with Defendant. Mr. Sullivan stated that since Plaintiff took his tools home, he assumed he had quit. Plaintiff alleges that he took his tools because they were disappearing and being damaged. Plaintiff alleges that Mr. Sullivan told him that if he did not like it, he could sue or contact the Labor Board. Plaintiff requests $150,000 for each violation, along with attorneys' fees and costs. He also requests that Defendant put in place policies that prevent workplace discrimination. C. Analysis The ADA prohibits an employer from discriminating against a qualified individual on the basis of a disability. 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA that Defendant failed to accommodate a disability, Plaintiff must demonstrate that: (1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to perform the essential functions of the job, with reasonable accommodations; and (3) he suffered an adverse employment action because of his disability. Allen v. Pacific Bell, 348 F.3d 1113, 1114 (9th Cir.2003) (per curiam); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.1999). Here, although Plaintiff alleges that Defendant failed to accommodate his doctor's orders, he does not state the nature of his disability or allege that he was otherwise qualified to perform the position with reasonable accommodations. It is also not clear whether Plaintiff contends that he quit in response to Mr. Cieselinski's actions, or whether Mr. Sullivan terminated his employment.

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The Court will therefore dismiss the complaint with leave to amend. In his amended complaint, Plaintiff must allege the above elements of an ADA claim. For example, Plaintiff must allege that he is disabled within the meaning of the ADA. The ADA defines a disability as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Plaintiff must also allege that he is a qualified individual who can perform the essential function of his position with reasonable accommodations. D. Amended Complaint In amending his complaint, Plaintiff is informed that the Court cannot refer to a prior pleading in order to make an amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supercedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once Plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Accordingly, IT IS HEREBY ORDERED that Plaintiff's complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff may file an amended complaint within thirty (30) days of the date of service of this order. Plaintiff's complaint should be clearly titled, "First Amended Complaint," and shall refer to the case number assigned to this action. His complaint must allege the elements of an ADA claim, as set forth above. If Plaintiff does not file an amended complaint within this time frame and in accordance with this order, the Court will recommend that this action be dismissed.

IT IS SO ORDERED. Dated:

April 8, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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