Price v. Mabus

Filing 10

ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 11/28/2016. Fourth Amended Complaint due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD PRICE,

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Plaintiff,
v.
RAYMOND E. MABUS, Secretary,
Department of the Navy,
Defendant.

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1:16-cv-00702-LJO-BAM
SCREENING ORDER DISMISSING THIRD
AMENDED COMPLAINT WITH LEAVE
TO AMEND
(Doc. 9)
THIRTY-DAY DEADLINE

SCREENING ORDER

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Plaintiff Edward Price (“Plaintiff”) proceeds pro se and in forma pauperis in this civil

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action. On September 2, 2016, the Court dismissed Plaintiff’s first amended complaint with

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leave to amend within thirty (30) days. On September 16, 2016, Plaintiff filed a letter with the

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Court, which included a decision issued by the U.S. Equal Employment Opportunity

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Commission on September 1, 2016. (Doc. 6). On September 7, 2016, Plaintiff filed a right to

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sue letter issued by the California Department of Fair Employment & Housing on September 20,

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2016. (Doc. 7). The Court construed these documents as Plaintiff’s second amended complaint.

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On October 18, 2016, the Court dismissed Plaintiff’s second amended complaint with leave to

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amend because the letters filed with the Court failed to comply with Federal Rules of Civil

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Procedure 8 and 10. (Doc. 8). Plaintiff’s third amended complaint, filed on November 10, 2016,

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is currently before the Court for screening. (Doc. 9).
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Screening Requirement

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The Court is required to screen complaints brought by persons proceeding in pro per. 28

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U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is

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frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks

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monetary relief from a defendant who is immune from such relief.

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1915(e)(2)(B)(ii).

28 U.S.C. §

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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Pro se litigants are entitled to have their pleadings liberally construed and to have any

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doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-1123 (9th Cir. 2012),

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), but to survive screening, Plaintiff’s claims

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must be facially plausible, which requires sufficient factual detail to allow the Court to

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reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S.

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at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. United States Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.

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Plaintiff’s Allegations

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Plaintiff, an African-American male civil service employee, worked as a transportation

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assistant in the Fleet Logistics Center in Lemoore, California. He alleges that in October 2009,

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Grace Sotelo was appointed as his supervisor in the Fleet Logistics Center. Plaintiff repeatedly

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reported problems in the shipping department to Ms. Sotelo. Plaintiff claims that he was
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responsible for keeping the shipping department running from September 2009 through March

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2014, including paying shipping bills and booking trucks. Plaintiff alleges that every time he

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applied for a different job, Human Resources said that he was not qualified. Plaintiff also alleges

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that Ms. Sotelo and Mr. Getty had him investigated by N.C.I.S. for fraud, bribery, wire fraud and

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other unethical behavior. Plaintiff was cleared of all charges, but Ms. Sotelo and Mr. Getty

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continued to harass him and make false accusations until he was terminated. Plaintiff complains

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of racial discrimination and wrongful termination.

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DISCUSSION

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Plaintiff’s third amended complaint is comprised of (1) a letter to Robert J. Barnhart in

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support of Plaintiff’s Equal Employment Opportunity Commission Appeal; and (2) a letter to the

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Office of Federal Operations dated 9/23/2016.

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complaint, Plaintiff’s third amended complaint fails to comply with Federal Rules of Civil

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Procedure 8 and 10. Plaintiff may not simply file letters to other persons or government agencies

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in lieu of a complaint containing factual allegations and causes of action. Further, the letter

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addressed to Robert J. Barnhart is identical to the one filed as part of Plaintiff’s first amended

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complaint (Doc. 4, pp. 3-5), which was dismissed, in part, for failure to comply with Federal

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Rules of Civil Procedure 8 and 10 (Doc. 5).

(Doc. 9).

As with his second amended

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The Court previously advised Plaintiff that he would be permitted one final opportunity

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to amend his complaint. However, in an abundance of caution, Plaintiff will be given one final

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opportunity to amend his complaint. To assist Plaintiff, the Court provides the following the

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pleading and legal standards that appear applicable:

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1. Federal Rule of Civil Procedure 8

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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id.; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

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As stated, Plaintiff’s filing of letters addressed to other persons or government agencies is

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not sufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8. If

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Plaintiff elects to amend his complaint, Plaintiff must prepare a separate complaint that includes

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the relevant factual allegations, including what happened, when it happened and who was

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involved. Plaintiff also should include his asserted causes of action and requested relief.

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2. Federal Rule of Civil Procedure 10

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Federal Rule of Civil Procedure 10 outlines the form of pleadings required in federal

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court. In particular, Rule 10 requires a party to “state its claims or defenses in numbered

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paragraphs, each limited as far as practicable to single set of circumstances.” Fed. R. Civ. P.

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10(b). Additionally, if doing so would promote clarity, “each claim founded on a separate

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transaction or occurrence . . . must be stated in a separate count or defense.” Id.

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Here, Plaintiff’s letters are not sufficient to satisfy the pleading requirements of Federal

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Rule of Civil Procedure 10. Plaintiff’s letters do not contain numbered paragraphs or separate

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claims based on separate transactions or occurrences. If Plaintiff elects to amend his complaint,

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he must prepare a stand-alone complaint, which is not comprised of letters to other persons or

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government agencies, that includes separate numbered paragraphs limited to a single set of

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circumstances and he must state separate claims founded on separate transactions or occurrences.

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3. Plaintiff’s Claims

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Plaintiff appears to be pursuing a discrimination claim pursuant to Title VII of the Civil

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Rights Act. The protection against employment discrimination provided by Title VII applies to

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civilian employees of the military through 42 U.S.C. § 2000e–16(a). Gonzalez v. Dep’t. of Army,

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718 F.2d 926, 928 (9th Cir. 1983). However, it is not clear what precise employment actions he

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believes were discriminatory beyond the failure to receive positions for which he reportedly was

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not qualified. In his complaint, Plaintiff has detailed various issues with billing, computer

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systems and the availability of trucks, but he does not adequately explain how these issues

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involved discrimination. Instead, they appear to be Plaintiff’s complaints about inadequacies in
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management of the Fleet Logistics Center. Plaintiff also has not explained the circumstances

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surrounding his termination from employment by Human Resources. Conclusory statements that

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he was discriminated against are not sufficient to state a cognizable claim. Iqbal, 556 U.S. at

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678. Plaintiff will be given leave to amend to cure these deficiencies.

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However, to the extent Plaintiff’s termination claims are not premised upon

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discrimination, they are preempted by the Civil Service Reform Act (“CSRA”), 5 U.S.C. § 1101

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et seq., which is the exclusive administrative remedy for a federal civil service employee alleging

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wrongful termination. See Elgin v. Dep’t of Treasury, 132 S.Ct. 2126 (2012); Saul v. United

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States, 928 F.2d 829, 842 (9th Cir. 1991).

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CONCLUSION AND ORDER

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Plaintiff’s third amended complaint fails to comply with Federal Rule of Civil Procedure

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8 and 10, and fails to state a cognizable claim. As Plaintiff is proceeding pro se, the Court will

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provide him with one final opportunity to amend his complaint.

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1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature of this suit by adding new,

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unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)

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(no “buckshot” complaints).

Lopez v. Smith, 203 F.3d

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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the named defendant did that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678-

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79, 129 S.Ct. at 1948-49.

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[sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555

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(citations omitted).

Although accepted as true, the “[f]actual allegations must be

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s

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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s third amended complaint is dismissed for failure to comply with
Federal Rules of Civil Procedure 8 and 10 and failure to state a cognizable claim;
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2.

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Within thirty (30) days from the date of service of this order, Plaintiff shall file a
fourth amended complaint; and

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If Plaintiff fails to file a fourth amended complaint in compliance with this

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order, this action will be dismissed for failure to obey a court order and

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failure to state a cognizable claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 28, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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