Smith v. Wal-Mart Assoc. Inc. et al

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/9/2018 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of this order to file an amended complaint. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRAISURE EARL SMITH,

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Plaintiff,

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v.

No. 2:17-cv-968-GEB-EFB PS

ORDER

WAL-MART ASSOC. INC., WAL-MART
STORE #3708, and MIKE PHILLIPS,
Defendants.

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

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.
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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
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Determining that plaintiff may proceed in forma pauperis does not complete the required
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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the
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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on
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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed
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below, plaintiff’s complaint must be dismissed failure to state a claim.
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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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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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

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

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

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

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

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

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

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

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

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

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Under this standard, the court must accept as true the allegations of the complaint in

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

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading

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

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

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

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

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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

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

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

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

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the
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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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

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Liberally construed, plaintiff alleges that he was hired as an employee at a Wal-Mart store

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in Suisun, California. ECF No. 1 at 3. He claims that prior to receiving the position, he disclosed

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to Mike Phillips, the store manager, that he has a criminal record. Id. Notwithstanding this

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disclosure, plaintiff was offered a position and commenced employment with Wal-Mart on

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January 24, 2017. However, two days later he was “suspended pending investigation into [his]

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hiring.” Id. Shortly thereafter, his employment was terminated based on his criminal record. Id.

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He claims that his termination was discriminatory. Id.

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Plaintiff’s reference to employment termination based on discriminatory motives suggests

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an attempt to allege a claim under Title VII of the Civil Rights Act. However, plaintiff fails to

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allege facts necessary to state a claim under Title VII.

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Title VII prohibits an employer to “discriminate against any individual with respect to

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his compensation, terms, conditions, or privileges of employment, because of such individual’s

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race, color religion, sex, or national origin.” 42 U.S.C. § 2000e-2. To state a discrimination

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claim under Title VII, a plaintiff must allege “that (1) he belongs to some protected class; (2) he

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was qualified for the position; (3) he was subjected to an adverse employment action; and (4)

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similarly situated individuals outside his protected class were treated more favorably.” Chuang v.

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Univ. of Cal Davis, Bd. of Tr., 225 F.3d 1115, 1123 (9th Cir. 2000).

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To the extent plaintiff intended to allege a Title VII claim, the claim fails because plaintiff

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does not allege that he was terminated based on his being a member of a protected class. Plaintiff

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claims that he was subjected to discrimination based on his criminal record, but having a criminal

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record is not a protected class under Title VII. See 42 U.S.C. § 2000e-2 (prohibiting employment

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discrimination based on an “individual's race, color, religion, sex, or national origin”); see also,

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e.g., Manley v. Invesco, 555 Fed. Appx. 344, 348 (5th Cir. 2014) (“Persons with criminal records
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are not a protected class under Title VII”); Levy v. Primerica, Inc., 2016 WL 1698028, at *2

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(N.D. Cal. Apr. 26, 2016) (“having a criminal record is not a protected class under” Title XII.”).

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Thus, the complaint does not state a Title VII claim.

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Accordingly, the complaint must be dismissed for failure to state a claim. Plaintiff is

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granted leave to file an amended complaint, if he can allege a cognizable legal theory against a

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proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith,

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

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opportunity to amend to correct any deficiency in their complaints). Should 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. Any amended

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

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

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

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

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

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

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that support each claim under each header.

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

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

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

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

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

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

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

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

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

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

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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.
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Accordingly, IT IS ORDERED that:

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

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

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

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

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

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

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DATED: January 9, 2018.

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