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

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/3/17 RECOMMENDING that plaintiff's first amended complaint be DISMISSED without leave to amend and the Clerk be directed to close this case. Referred to Judge John A. Mendez; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VITALY V. KONONOV,

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

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

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

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The court previously granted plaintiff’s request for leave to proceed in forma pauperis,

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but dismissed the complaint with leave to amend pursuant to 28 U.S.C. 1915(e)(2).1 See ECF No.

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2. Plaintiff has since filed a first amended complaint. However, the amended complaint fails to

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cure the defects that resulted in the dismissal of the original complaint and it, too, must be

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dismissed.

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Plaintiff’s original complaint alleged that in January 2016, defendants wrongfully

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terminated plaintiff’s employment with Walmart after management overheard plaintiff use

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inappropriate language. ECF No. 1 at 5. Plaintiff claims that the inappropriate language was

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used in a private conversation during plaintiff’s lunch break, and that plaintiff never used such

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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).
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language when working with customers. Id. Plaintiff alleged that terminating plaintiff’s

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employment based on such statements violated plaintiff’s right to free speech under the First

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Amendment. Id.

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In dismissing that complaint, the court noted that plaintiff failed to establish the court’s

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subject matter jurisdiction. Plaintiff failed to adequately allege facts establishing a federal claim

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and the complaint demonstrated that diversity jurisdiction was lacking. Accordingly, the court

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dismissed plaintiff’s complaint, but provided plaintiff an opportunity to “allege a basis for this

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court’s jurisdiction, as well as a cognizable legal theory and sufficient facts in support of that

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cognizable legal theory.” ECF No. 4 at 4. The order provided that “[s]hould plaintiff choose to

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

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defendant and shall specify a basis for this court’s subject matter jurisdiction.” Id.

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Plaintiff subsequently filed a first amended complaint which again alleges that during a

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lunch break, plaintiff used profanity during a conversation with a co-worker. ECF No. 5 at 5.

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Plaintiff alleges that as a result, plaintiff’s employment was terminated for “Misconduct with

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Coaching.” Plaintiff tried to explain to the supervisors, defendants Shannon Benoit and Daniel

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Islas, that inappropriate language was never used while plaintiff was “on the clock” or working

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with customers, but these defendants determined that plaintiff’s conduct violated company rules

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and regulations and warranted termination of employment. Id. Plaintiff further claims that the

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termination violated plaintiff’s right to freedom of speech under the First Amendment. Id. at 4.

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As previously explained, although pro se pleadings are liberally construed, see Haines v.

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Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for

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failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible

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on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v.

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Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and

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a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be

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enough to raise a right to relief above the speculative level on the assumption that all of the

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complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate based either on
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the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable

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

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In reviewing the complaint the court must accept its allegations as true, Hospital Bldg. Co.

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v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable

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to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411,

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421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to include “a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).
Additionally, the complaint must include a basis for the court’s subject matter jurisdiction.

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A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized

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by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377

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(1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal

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question” and “diversity” jurisdiction, respectively. Federal question jurisdiction requires that the

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complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a “case or

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controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be authorized

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by a federal statute that both regulates a specific subject matter and confers federal jurisdiction.

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Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity jurisdiction, a plaintiff

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must specifically allege the diverse citizenship of all parties, and that the matter in controversy

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exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d

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546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction of the federal courts

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unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of subject matter

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jurisdiction may be raised at any time by either party or by the court. Attorneys Trust v.

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Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Like plaintiff’s original complaint, the amended complaint fails to adequately allege a

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basis for this court’s jurisdiction. Plaintiff claims that the court has diversity jurisdiction pursuant

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to 42 U.S.C. 1332 because there is “diverse citizenship of all parties” and the amount in
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controversy exceeds $75,000. ECF. No. 5. The amended complaint, however, does not identify

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the citizenship of the parties. Moreover, plaintiff’s original complaint indicated that plaintiff and

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the individual defendants are citizens of California. ECF No. 1 at 2-3. Accordingly, diversity

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jurisdiction is lacking.

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Moreover, assuming jurisdiction, the complaint fails to state a federal claim upon which

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relief may be granted. The only federal claim alleged in the amended complaint is for violation

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of plaintiff’s right to free speech under the First Amendment to the United States Constitution.

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As previously explained to plaintiff, to state a claim under § 1983,2 a plaintiff must allege: (1) the

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violation of a federal constitutional or statutory right; and (2) that the violation was committed by

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a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). The amended complaint fails to allege any facts

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indicating that the defendants are state actors. Instead, the individual defendants appear to be

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private citizens working in management positions for Walmart, a corporation. Thus, the

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complaint fails to state a claim under § 1983, and no other federal claim is asserted. Absent a

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cognizable federal claim, plaintiff has failed to establish the court’s subject matter jurisdiction.

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Given plaintiff’s failure to remedy the deficiency in her amended complaint, as well as

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the earlier allegations demonstrating that the conduct complained of was private, not state action

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and that diversity of citizenship is absent for purposes of jurisdiction over any non-federal claim,

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further leave to amend would be futile. Accordingly, plaintiff’s complaint should be dismissed

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without leave to amend. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court

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ordinarily would permit a pro se plaintiff leave to amend, leave to amend should not be granted

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where it appears amendment would be futile).

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In the amended complaint, plaintiff states that plaintiff is “[r]emoving the 42 U.S.C.
§ 1983 portion of this complaint,” but then claims to be alleging a First Amendment claim. ECF
No. 5 at 7. Plaintiff, however, “has no cause of action directly under the United States
Constitution,” and “a litigant complaining of a violation of a constitutional right must utilize 42
U.S.C. § 1983.” Azul-Pacifico, Inc. v. City of L.A., 973 F.2d 704, 705 (9th Cir. 1992).
Accordingly, plaintiff’s First Amendment claim is construed as a claim brought pursuant to
§ 1983.
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Accordingly, it is hereby RECOMMENDED that plaintiff’s first amended complaint be
dismissed without leave to amend and the Clerk be directed to close this case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, 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 captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 3, 2017.

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