Kononov v. Wal-Mart Stores, Inc. et al.

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/7/2016 GRANTING 2 Motion to Proceed IFP; DISMISSING the 1 Complaint with leave to amend; GRANTING the plaintiff thirty days to file an amended complaint; CAUTIONING the plaintiff that a failure to timely file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed. (Michel, G.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

VITALY V. KONONOV,

12
13
14
15

Plaintiff,
v.

ORDER

WAL-MART STORES, INC.; SHANNON
BENOIT; DANIEL ISLAS,
Defendants.

16
17

No. 2:16-cv-376-JAM-EFB PS

Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 Plaintiff’s

18
declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.
19
Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
20
Determining that plaintiff may proceed in forma pauperis does not complete the required
21
inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the
22
allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on
23
which relief may be granted, or seeks monetary relief against an immune defendant. As discussed
24
below, plaintiff’s complaint fails to establish this court’s jurisdiction and must therefore be
25
dismissed.
26
27
28

1

This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
1

1

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

2

520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

3

fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

4

Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

5

(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

6

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

7

a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

8

relief above the speculative level on the assumption that all of the complaint’s allegations are

9

true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

10

legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

11

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

12

In reviewing a complaint under this standard, the court must accept as true the allegations

13

of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

14

construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the

15

plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy

16

the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

17

requires a complaint to include “a short and plain statement of the claim showing that the pleader

18

is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds

19

upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

20

Plaintiff brings this action under 42 U.S.C. § 1983 against Walmart Stores, Inc., Shannon

21

Benoit, and Daniel Islas for purported violation of the First Amendment right to freedom of

22

speech. ECF No. 1 at 5. The complaint alleges that on January 23, 2016, plaintiff, who worked

23

at a Walmart store in Rocklin, California, was having a conversation with a coworker regarding

24

their personal relationships. Id. During the conversation, which occurred during a lunch break,

25

plaintiff used curse words. Id. Management overheard the inappropriate language and terminated

26

plaintiff’s employment for “Misconduct with Coaching.” Id. Plaintiff explained to Shannon

27

Bennoit and Daniel Islas, plaintiff’s supervisor, that inappropriate language was never used when

28

working with customers. Id. Although they agreed, these defendants concluded that plaintiff
2

1

violated company rules and regulations and therefore they terminated plaintiff’s employment. Id.

2

at 7-8.

3

Although plaintiff’s claim is styled as one brought under section 1983 for violation of

4

plaintiff’s First Amendment rights, the allegations of the complaint fail to state a claim under that

5

statute. To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

6

constitutional or statutory right; and (2) that the violation was committed by a person acting under

7

the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

8

930, 934 (9th Cir. 2002). Here, none of the defendants appear to be state actors. Instead, the

9

individual defendants appear to be private citizens working in management positions for

10

Walmart, a corporation. Under the facts as alleged in the complaint, none of the defendants acted

11

under color of state law and the complaint fails to state a claim under section 1983 claim.

12

Furthermore, the complaint does not appear to otherwise invoke this court’s subject matter

13

jurisdiction. Whatever plaintiff’s disputes are with plaintiff’s former employer, a federal court is

14

a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution

15

and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The basic

16

federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal question” and “diversity”

17

jurisdiction, respectively. Federal question jurisdiction requires that the complaint (1) arise under

18

a federal law or the U. S. Constitution, (2) allege a “case or controversy” within the meaning of

19

Article III, § 2 of the U. S. Constitution, or (3) be authorized by a federal statute that both

20

regulates a specific subject matter and confers federal jurisdiction. Baker v. Carr, 369 U.S. 186,

21

198 (1962). To invoke the court’s diversity jurisdiction, a plaintiff must specifically allege the

22

diverse citizenship of all parties, and that the matter in controversy exceeds $75,000. 28 U.S.C. §

23

1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A

24

case presumably lies outside the jurisdiction of the federal courts unless demonstrated otherwise.

25

Kokkonen, 511 U.S. at 376-78. Lack of subject matter jurisdiction may be raised at any time by

26

either party or by the court. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593,

27

594-95 (9th Cir. 1996).

28

/////
3

1

As noted, plaintiff has not stated a claim under section 1983. Nor has plaintiff alleged any

2

other federal question claim. The complaint indicates that both plaintiff and the individual

3

defendants are citizens of California and therefore diversity jurisdiction is lacking. Accordingly,

4

the complaint must be dismissed. However, the dismissal is with leave to amend to accord

5

plaintiff an opportunity to allege a basis for this court’s jurisdiction, as well as a cognizable legal

6

theory against a proper defendant and sufficient facts in support of that claim. Lopez v. Smith,

7

203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an

8

opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to

9

file an amended complaint, the amended complaint shall clearly set forth the allegations against

10

defendant and shall specify a basis for this court’s subject matter jurisdiction. Any amended

11

complaint shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as

12

practicable to a single set of circumstances,” as required by Federal Rule of Civil Procedure

13

10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as

14

required by Eastern District of California Local Rules 130(b) and 130(c). Any amended

15

complaint shall also use clear headings to delineate each claim alleged and against which

16

defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts

17

that support each claim under each header.

18

Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

19

make an amended complaint complete. Local Rule 220 requires that an amended complaint be

20

complete in itself. This is because, as a general rule, an amended complaint supersedes the

21

original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

22

plaintiff files an amended complaint, the original no longer serves any function in the case.

23

Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

24

alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

25

1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

26

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

27

comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

28

may result in a recommendation that this action be dismissed. See Local Rule 110.
4

1

Accordingly, IT IS ORDERED that:

2

1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

3

2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

4

3. Plaintiff is granted thirty days from the date of service of this order to file an amended

5

complaint. The amended complaint must bear the docket number assigned to this case and must

6

be labeled “Amended Complaint.” Failure to timely file an amended complaint in accordance

7

with this order will result in a recommendation this action be dismissed.

8

DATED: June 7, 2016.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5