Warner v. W.M. Bolthouse Farms, Inc. et al.

Filing 6

ORDER GRANTING 2 5 Plaintiff's Motions to Proceed In Forma Pauperis; ORDER DISMISSING THE FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 5/5/2017. Amended complaint due within 30 days. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENYON N. WARNER, Plaintiff, 12 v. 13 14 W.M. BOLTHOUSE FARMS, INC., Defendant. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00217 - LJO - JLT ORDER GRANTING PLAINTIFF’S MOTIONS TO PROCEED IN FORMA PAUPERIS (Doc. 2, 5) ORDER DISMISSING THE FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND Kenyon Warner seeks to proceed pro se and in forma pauperis in this action alleging disability 18 discrimination and retaliation by his former employer, W.M. Bolthouse Farms, Inc. (Doc. 4) For the 19 following reasons, Plaintiff’s request to proceed in forma pauperis is GRANTED. However, because 20 the facts alleged are insufficient to support a claim for negligence, the complaint is DISMISSED with 21 leave to amend. 22 I. Motion to proceed in forma pauperis 23 The Court may authorize the commencement of an action without prepayment of fees when an 24 individual “submits an affidavit that includes a statement of all assets such person . . . possesses [and] 25 that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). The Court 26 has reviewed Plaintiff’s applications, and finds he satisfies the requirements of 28 U.S.C. § 1915(a). 27 Therefore, Plaintiff’s motion to proceed in forma pauperis is GRANTED. 28 /// 1 1 II. Screening Requirement 2 When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and 3 shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the 4 action or appeal is “frivolous, malicious or fails to state a claim on which relief may be granted; or . . . 5 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 1915(e)(2). A 6 claim is frivolous “when the facts alleged arise to the level of the irrational or the wholly incredible, 7 whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 8 504 U.S. 25, 32-33 (1992). 9 The Court must screen the First Amended Complaint because an amended complaint 10 supersedes the previously filed complaints. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th 11 Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 12 III. 13 Pleading Standards General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 14 pleading stating a claim for relief must include a statement affirming the court’s jurisdiction, “a short 15 and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the 16 relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 17 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to “less 18 stringent standards” than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 19 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and 20 succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). Further, a 21 plaintiff must identify the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 22 U.S. 506, 512 (2002). The Supreme Court noted, 23 24 25 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. 26 Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks and citations omitted). 27 Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 28 266, 268 (9th Cir. 1982). The Court clarified further, 2 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ 1 2 3 4 5 6 Iqbal, 566 U.S. at 678 (citations omitted). When factual allegations are well-pled, a court should 7 assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal 8 conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court has a duty to dismiss a case at any time it determines an action fails to state a claim, 9 10 “notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court 11 “may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a 12 claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal 13 Practice and Procedure, § 1357 at 593 (1963)). However, leave to amend a complaint may be granted 14 to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 15 1122, 1127-28 (9th Cir. 2000) (en banc). 16 IV. Factual Allegations Plaintiff alleges only: “On or about July 8, 2013, to September 7, 2016, [he] was denied a 17 18 reasonable accommodation, suspended, and then discharged… because of [his] disability and in 19 retaliation in violation of the Americans with [D]isabilities Act of 1990.” (Doc. 4 at 5) In addition, 20 Plaintiff attached a list of exhibits to his amended complaint, indicating he made charges of 21 discrimination with California’s Department of Fair Employment and Housing and the Equal 22 Employment Opportunity Commission and, which issued a “Notice of Rights to Sue.” (Id. at 12) 23 V. 24 Discussion and Analysis “The ADA prohibits discrimination against a qualified individual with a disability in regards to 25 terms, conditions and privileges of employment.” Gribben v. UPS, 528 F.3d 1166, 1169 (9th Cir. 26 2008); see also 42 U.S.C. § 12132. To state a cognizable claim for discrimination in violation of the 27 ADA, a plaintiff must show that, within the meaning of the ADA, he: “(1) is disabled; (2) is qualified; 28 and (3) suffered an adverse employment action because of [his] disability.” Snead v. Metro. Prop. & 3 1 Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). Thus, to recover under the ADA, a plaintiff must 2 demonstrate that he is disabled under the act. 42 U.S.C. § 12102(1)(A) (defining disability as “a 3 physical or mental impairment that substantially limits one or more major activities of [an] individual”). 4 The failure to provide a reasonable accommodation to a qualified individual with a disability 5 can constitute discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A); EEOC v. UPS Supply 6 Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010). As relevant here, the term “reasonable 7 accommodation” means “[m]odifications or adjustments that enable a covered entity's employee with a 8 disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly 9 situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii); UPS Supply Chain Solutions, 10 620 F.3d at 1110. While there is no comprehensive list, some “reasonable accommodations” include: 11 job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition 12 or modification of equipment or devices, appropriate adjustment or modifications of examinations, 13 training materials or policies, the provision of qualified readers or interpreters, and other similar 14 accommodations. 42 U.S.C. § 12111(9). Bates v. UPS, 511 F.3d 974 (9th Cir. 2007). In order for an 15 accommodation to be “reasonable,” it must be effective in enabling the employee to perform his job 16 duties. UPS Supply Chain Solutions, 620 F.3d at 1110; Humphrey v. Mem’l Hosps. Assn., 239 F.3d 17 1128, 1137 (9th Cir. 2001). 18 Once an employee requests an accommodation, “the employer must engage in an interactive 19 process with the employee to determine the appropriate reasonable accommodation.” UPS Supply 20 Chain Solutions, 620 F.3d at 1110; Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 21 2002). This interactive process requires: “(1) direct communication between the employer and 22 employee to explore in good faith the possible accommodations; (2) consideration of the employee’s 23 request; and (3) offering an accommodation that is reasonable and effective.” Id., 620 F.3d at 1110-11; 24 Zivkovic, 302 F.3d at 1089. An employer who fails to engage in the interactive process in good faith 25 faces “liability for the remedies imposed by the statute if a reasonable accommodation would have been 26 possible.” Humphrey, 239 F.3d at 1137-38; Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 27 2000) (en banc); EEOC v. Creative Networks, LLC, 912 F.Supp.2d 828, 837 (D. Ariz. 2012). 28 Here, Plaintiff fails to allege facts sufficient to support his claim for discrimination and failure 4 1 to accommodate in violation of the ADA. For example, Plaintiff offers the conclusion that he is 2 disabled, but fails to offer any facts supporting that statement, such as by explaining if or how his 3 impairment(s) limit major activities. See 42 U.S.C. § 12102(1)(A). Further, Plaintiff fails to state any 4 facts related to the alleged limitations he had that required accommodation, such as whether a physical 5 impairment caused him to need lifting limitations that were denied by his employer, options to stand 6 and walk, or any other limitation. 7 Without Plaintiff’s explanation of what occurred— including what accommodation was 8 requested, whether any accommodation was made or how by his employer— the Court is unable to find 9 that Plaintiff states a cognizable claim for failure to accommodate. As the Court previously informed 10 Plaintiff, it is his obligation to plead facts that support his claim, not simply offer legal conclusions. 11 VI. 12 Conclusion and Order Given the lack of factual allegations, the Court is unable to find Plaintiff states a cognizable 13 claim. However, it is not clear whether the factual deficiencies may be cured by amendment. See Noll 14 v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987); see also Lopez, 203 F.3d at 1128 (dismissal of a 15 pro se complaint without leave to amend for failure to state a claim is proper only where it is obvious 16 that an opportunity to amend would be futile). 17 Plaintiff is again advised that an amended complaint supersedes the original complaint. 18 Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th 19 Cir. 1987). In addition, the amended complaint must be “complete in itself without reference to the 20 prior or superseded pleading.” Local Rule 220. Once Plaintiff files an amended complaint, the 21 original pleading no longer serves any function in the case. The amended complaint must bear the 22 docket number assigned this case and must be labeled “Second Amended Complaint.” Finally, 23 Plaintiff is warned that “[a]ll causes of action alleged in an original complaint which are not alleged in 24 an amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (citing London 25 v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981). 26 27 In the Second Amended Complaint, Plaintiff SHALL include a statement of facts that inform the Court of the basis for his claims. If Plaintiff fails to allege facts and again offers only legal 28 5 1 conclusions in support of his claims, the Court will find he is unable to do so and recommend 2 dismissal of the action. 3 Based upon the foregoing, the Court ORDERS: 4 1. Plaintiff’s request to proceed in forma pauperis is GRANTED; 5 2. Plaintiff’s First Amended Complaint is DISMISSED with leave to amend; and 6 3. Within thirty days from the date of service of this order, Plaintiff SHALL file a Second Amended Complaint. 7 8 If Plaintiff fails to comply with this order to file a Second Amended Complaint, the action may 9 be dismissed for failure to prosecute and failure to obey the Court’s order. 10 11 12 13 IT IS SO ORDERED. Dated: May 5, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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