Moses Flores v. Wespak

Filing 15

SCREENING ORDER granting Plaintiff leave to file amended complaint 3 signed by Magistrate Judge Barbara A. McAuliffe on 7/25/2018. (First Amended Complaint due by 8/28/2018). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MOSES FLORES,
Plaintiff,

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SCREENING ORDER GRANTING
PLAINTIFF LEAVE TO FILE AMENDED
COMPLAINT

v.

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Case No. 1:17-cv-00326 AWI-BAM

WESPAK and J.V. FARM LABOR
SERVICES,

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(ECF No. 3)
THIRTY (30) DAY DEADLINE

Defendant.

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/

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I.

Introduction

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Plaintiff Moses Flores, a Nevada state prisoner proceeding pro se and in forma pauperis, filed

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his initial Complaint on March 6, 2017. On March 20, 2017, Plaintiff filed the operative First Amended

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Complaint (“FAC”) as a matter of right. (ECF No. 3). Plaintiff brings this civil action pursuant to Title

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VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (“Title VII”) against Defendants Wespak

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and J.V. Farm Labor Services (“Defendants”). Plaintiff’s FAC is currently before the Court for

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screening. (ECF No. 3.)

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II.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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

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a defendant who is immune from such relief.

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

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28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §

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

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). 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 statements, do

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not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations

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are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally

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construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which

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requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is

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liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a

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defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying

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the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss,

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572 F.3d at 969.

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III.

Plaintiff’s Allegations

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Plaintiff alleges that on “April 28, 2017,” [sic] his employers Wespak and J.V. Farm Labor

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Services wrongfully terminated him for complaining about the working conditions of Defendants’

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migrant farm worker employees. Plaintiff claims that he was fired after he told Defendants that he knew

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of their “ongoing exploitations, wage theft, and embezzlement” practices. In addition to his firing,

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Plaintiff alleges that Defendants had him wrongfully arrested as a result of complaints. As relief,

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Plaintiff would like his employment reinstated, back pay and overtimes wages for himself and the other

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employees, as well as any other damages or relief authorized by law.

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IV.

Discussion

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A.

Claims Failing to Satisfy Federal Rule of Civil Procedure 8

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As noted above, 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 are not required,
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but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 555). Plaintiff

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must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the

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mere possibility that a defendant committed misconduct, Iqbal at 679, and while factual allegations are

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accepted as true, legal conclusions are not. Id. at 678.

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Plaintiff’s FAC provides insufficient factual detail in support of his employment discrimination

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action. Accordingly, the Court will provide Plaintiff with the legal standards for these causes of action.

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Plaintiff is advised that he must provide specific examples of the alleged misconduct including particular

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facts identifying the misconduct, when the conduct occurred, and who was involved. Plaintiff is further

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advised that the causes of action must be clearly organized so that there is one cause of action for each

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alleged violation of law. Moreover, any amended complaint must clearly identify which defendant is

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named under each cause of action. In order for the Court to properly screen Plaintiff’s complaint, it must

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be clear which defendants are alleged to have committed each specific violation. Finally, any amended

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complaint must contain all necessary allegations for each cause of action and defendant's actions must

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be linked to the specific violation of law alleged. Mere speculation regarding a defendant’s behavior or

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making legal conclusions is not sufficient to state a claim.

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B.

Title VII Claims
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Exhaustion Requirement

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As a threshold matter, Title VII has exhaustion requirements that must be met prior to filing a

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court action. 42 U.S.C.§ 2000(e) et seq. A person seeking relief under Title VII must first file a charge

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with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged

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unlawful employment practice, or, if the person initially instituted proceedings with the state or local

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administrative agency, within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-

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5(e)(1). If the EEOC does not bring suit based on the charge, the EEOC will issue a “right to sue letter.”

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42 U.S.C. § 2000e-5(f)(1). Once a person receives this letter, he has 90 days to file suit. 42 U.S.C. §

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2000e-5(f)(1).

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Plaintiff’s FAC does not allege that he exhausted his administrative remedies. If he has not yet

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filed a timely claim with the EEOC and received a right-to-sue letter, this case is subject to dismissal.

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Furthermore, since Plaintiff does not accurately specify the timeframe in which he was retaliated against

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and fired, the Court is unable to determine if he may yet file a timely claim.1 Therefore, Plaintiff may

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either file an amended complaint asserting that he has exhausted his administrative remedies, or he may

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dismiss this action and refile once he has filed a timely claim with the EEOC and received a right-to-

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sue notice.
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Retaliation

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Title VII prohibits adverse employment actions against an employee who has “opposed any

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practice made an unlawful employment practice by this subchapter [(Title VII)]” or who has “made a

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charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under

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this subchapter.” 42 U.S.C. § 2000e–3. The analysis of a retaliation case is similar to that of a

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discrimination case under Title VII, where the plaintiff must establish a prima facie case of retaliation,

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then the employer must articulate a legitimate, non-retaliatory reason for its action, and the plaintiff

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must show that the employer’s reason is a pretext. See Stegall v. Citadel Broadcasting Co., 350 F.3d

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1061, 1065 (9th Cir. 2003).

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To state a claim for retaliation, Plaintiff must establish: (1) that he engaged in a protected activity

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under Title VII; (2) that the employer subjected the plaintiff to an adverse employment action; and (3)

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that a causal link exists between the protected activity and the employer’s action. Westendorf v. W.

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Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th Cir. 2013); Villiarimo v. Aloha Is. Air, Inc.,

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281 F.3d 1054, 1064 (9th Cir. 2002); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d

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493, 506 (9th Cir. 2000); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.1994);

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Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987).

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circumstantial evidence, such as the employer’s knowledge that the plaintiff engaged in protected

Causation “may be inferred from

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Plaintiff’s FAC states that he was terminated on April 28, 2017. However, Plaintiff filed his FAC on March 20,
2017; one month prior to his purported firing. The Court therefore construes Plaintiff’s termination date as a typographical
error. In his amended complaint, Plaintiff should correct his alleged date of termination.

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activities and the proximity in time between the protected action and the allegedly retaliatory

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employment decision.” Yartzoff v. Thomas, 809 F.2d at 1376.

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Here, Plaintiff alleges that he complained of adverse working conditions and he was later

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terminated. Plaintiff has therefore sufficiently alleged that he engaged in protected activity and that he

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suffered an adverse employment decision. However, Plaintiff has not sufficiently alleged the necessary

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causation element of the prima facie case for retaliation under Title VII. As indicated above, there is

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insufficient factual detail that the adverse actions occurred because of his protected complaints. As

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alleged, Plaintiff has failed to state a claim upon which relief can be granted, and this cause of action

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will be dismissed with leave to amend.

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II.

Conclusion and Order

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Plaintiff’s FAC fails to state a claim upon which relief may be granted. However, the Court will

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provide Plaintiff with the opportunity to file an amended complaint to cure the identified deficiencies.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature of this suit

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by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007) (no “buckshot” complaints).

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Plaintiff’s amended complaint should be brief, but it must state what the named defendant did

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that led to the deprivation of Plaintiff’s rights, Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1948-49. Although

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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the

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speculative level. . . .” Twombly, 550 U.S. at 555 (citations omitted).

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

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

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complaint must be “complete in itself without reference to the prior or superseded pleading.” Local

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Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended

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complaint curing the deficiencies identified by the Court in this order (or file a notice of voluntary

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dismissal); and

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If Plaintiff fails to file an amended complaint in compliance with this order, the Court will

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recommend dismissal of this action, with prejudice, for failure to obey a court order and for failure to

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state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 25, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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