Fox v. Carter
Filing
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FINDINGS and RECOMMENDATIONS recommending that Complaint be Dismissed re 1 Complaint filed by Keith Anderson Fox. Matter is referred to Judge Dale A. Drozd; Objections to F&R due within 14 days. signed by Magistrate Judge Michael J. Seng on 08/25/2016. (Yu, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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1:16-cv-00223 DAD MJS
KEITH A. FOX,
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v.
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FINDINGS AND RECOMMENDATION TO
Plaintiff, DISMISS COMPLAINT
ASHTON B. CARTER, Secretary of
Defense,
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Defendant.
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I.
Screening Requirement and Standard
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Plaintiff Keith Fox ("Plaintiff") is proceeding pro se and in forma pauperis in this
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civil action against Defendant Ashton Carter, Secretary of Defense (“Defendant”).
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Plaintiff initiated this action on February 18, 2016, and the Court granted Petitioner’s
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request to proceed in forma pauperis on March 1, 2016. (Docs. 1, 3.)
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The Court is required to screen complaints brought by pro se plaintiffs proceeding
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in forma pauperis. 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff's complaint, or any portion
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thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon
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which relief may be granted, or if it seeks monetary relief from a defendant who is
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immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii).
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A complaint must contain "a short and plain statement of the claim showing that
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the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but "[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S.
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662, 678, 129 S.Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)). While
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a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted
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inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal
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quotation marks and citation omitted).
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To survive screening, Plaintiff's claims must be facially plausible, which requires
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sufficient factual detail to allow the Court to reasonably infer that each named defendant
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is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation
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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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The sheer possibility that a defendant acted unlawfully is not sufficient, and mere
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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S.
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at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
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II.
Plaintiff's Allegations
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Plaintiff’s allegations are cursory. He states that he “was wrongfully terminated”
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and requests “back pay, job reinstatement, and damages.” (Compl., ECF No. 1, at 5-6.)
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He claims the amount in controversy is “back pay damages over $75,000.” (Compl., ECF
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No. 1.) That is the extent of the allegations in the complaint.
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III.
Discussion
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Plaintiff's complaint fails to comply with Federal Rule of Civil Procedure 8 and fails
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to state a cognizable claim. The Court recommends he be given leave to amend. To
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assist him in the event he chooses to amend, the Court outlines below the pleading and
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legal standards applicable to the types of claims it appears he wishes to assert.
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A.
Federal Rule of Civil Procedure 8
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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain "a short
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and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
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Civ. P. 8(a). As noted above, detailed factual allegations are not required, but
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"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice." Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set
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forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
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on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550
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U.S. at 556-557; Moss, 572 F.3d at 969.
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Plaintiff's complaint is short, but contains insufficient factual allegations to state a
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claim for relief. It lacks such fundamental and important details as the nature of the work
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he was terminated from, who terminated him, how Defendant is thought to be liable for
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the termination, when he was terminated, where he was employed, and why the
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termination was wrongful. Absent such information, the Court cannot determine whether
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Plaintiff states a cognizable claim or whether it has jurisdiction over Plaintiff's claims.
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The Ninth Circuit has "repeatedly held that a district court should grant leave to
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amend even if no request to amend the pleading was made, unless it determines that
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the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith,
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203 F.3d 1122, 1130 (9th Cir. 2000) (citations & quotation marks omitted). "Dismissal of
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a pro se complaint without leave to amend is proper only if it is absolutely clear that the
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deficiencies of the complaint could not be cured by amendment." Weilburg v. Shapiro,
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488 F.3d 1202, 1205 (9th Cir. 2007) (citation omitted). Here, the claims are so cursory
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that the Court cannot determine whether the claims may be cured by amendment.
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Accordingly, the Court recommends that the claim be dismissed without prejudice to
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provide Plaintiff the opportunity to state the claims with sufficient particularity.
Title VII — Employment Discrimination
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B.
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To the extent Plaintiff is pursuing a discrimination action pursuant to Title VII of
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the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5, et seq, or some other basis for wrongful
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termination, he must establish federal subject matter jurisdiction. See Cerrato v. San
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Francisco Community College Dist., 26 F.3d 968, 976 (9th Cir. 2009) (Congress has
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abrogated Eleventh Amendment immunity with respect to Title VII claims). To establish
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such jurisdiction for a Title VII claim, a plaintiff must exhaust his remedies by filing an
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administrative charge of discrimination with the Equal Employment Opportunity
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Commission (EEOC) before commencing an action in federal court. B.K.B. v. Maui
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Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002); Sommatino v. United States, 255 F.3d
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704, 708 (9th Cir. 2001). Plaintiff has made no indication in his complaint that he has
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complied with the exhaustion requirement.
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C.
State Law — Wrongful Termination and Negligence
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Insofar as Plaintiff seeks to bring a state law action for wrongful termination in
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violation of public policy, he may not do so. Such claims against a federal agency are
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barred pursuant to California Government Code section 815, which grants immunity to
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public entities unless otherwise provided for by statute, because there is no express
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statutory authority allowing for public entity liability. See Cal. Gov't Code § 815(a); see
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also Haack v. California Dep't of Corr. and Rehab., 2012 U.S. Dist. LEXIS 21556, 2012
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WL 570353, *4-5 (E.D. Cal. Feb. 21, 2012) (plaintiff could not maintain claim for wrongful
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termination in violation of public policy against state agency); Moore v. California Dep't of
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Corr. and Rehab., 2011 U.S. Dist. LEXIS 62852, 2011 WL 2433355, *8-9 (E.D. Cal. Jun.
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13, 2011) (same); Scott v. Solano Cnty. Health and Soc. Servs. Dep't, 2008 U.S. Dist.
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LEXIS 75757, 2008 WL 3835267, *18 (E.D. Cal. Aug. 15, 2008) (same).
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To the extent that Plaintiff seeks to pursue tort claims under California law for
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negligence, the Government Claims Act requires exhaustion of those claims with the
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California Victim Compensation and Government Claims Board, and Plaintiff is required
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to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42
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Cal.4th 201, 208-09, 64 Cal. Rptr. 3d 210, 164 P.3d 630 (Cal. 2007); State v. Superior
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Court of Kings Cnty. (Bodde), 32 Cal. 4th 1234, 1239, 13 Cal. Rptr. 3d 534, 90 P.3d 116
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(Cal. 2004); Mabe v. San Bernardino Cnty. Dep't of Pub. Soc. Servs., 237 F.3d 1101,
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1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th
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Cir. 1995); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988).
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Plaintiff has failed to allege such compliance or any facts excusing such compliance.
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IV.
Conclusion and Order
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Plaintiff's complaint fails to comply with Federal Rule of Civil Procedure 8 and fails
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to state a cognizable claim. As Plaintiff is proceeding pro se, the Court will provide him
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with an opportunity to amend his complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th
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Cir. 2000).
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Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state
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what each named defendant did that led to the deprivation of Plaintiff's constitutional or
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other federal rights. Iqbal, 556 U.S. at 676. Plaintiff also must set forth "sufficient factual
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matter . . . to 'state a claim that is plausible on its face.'" Id. at 678 (quoting Twombly,
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550 U.S. at 555).
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Finally, Plaintiff is advised that an amended complaint supersedes the original
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complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore,
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Plaintiff's amended complaint must be "complete in itself without reference to the prior or
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superseded pleading." Local Rule 220.
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V.
Recommendation
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Accordingly, it is hereby recommended that the dismissed for failure to comply
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with Federal Rule of Civil Procedure 8 and failure to state a cognizable claim. However,
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it is further recommended that Plaintiff be provided leave to file an amended complaint.
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This Findings and Recommendation is submitted to the assigned District Judge,
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pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after
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being served with the Findings and Recommendation, any party may file written
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objections with the Court and serve a copy on all parties. Such a document should be
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captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply
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to the objections shall be served and filed within fourteen (14) days after service of the
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objections. Plaintiff is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834,
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839 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
August 25, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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