Stevens v. IMKO Workforce Solutions et al

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 6/16/2017 GRANTING 2 Motion to Proceed IFP; DISMISSING the 1 Complaint with leave to amend; GRANTING the plaintiff twenty-eight (28) days to file a first amended complaint or request for voluntary dismissal of this action; CAUTIONING the plaintiff that a failure to timely comply with this order may result in the dismissal of this action, with prejudice. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAY STEVENS,

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Plaintiff,

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No. 2:17-cv-1026-MCE-KJN PS

v.

ORDER

IMKO WORKFORCE SOLUTIONS, et
al.,

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Defendants.

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Plaintiff Ray Stevens, who proceeds without counsel in this action, has requested leave to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s application in

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support of his request to proceed in forma pauperis makes the showing required by 28 U.S.C.

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§ 1915. Accordingly, the court grants plaintiff’s request to proceed in forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21).
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an immune defendant.

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).

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In this case, plaintiff alleges that, around December 21, 2014, he applied to defendant

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IMKO Workforce Solutions, a screening and placement agency, for an electrician assembler

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position with defendant Unison Corporation. However, on January 27, 2015, plaintiff was

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informed that he was disqualified from employment, and would not be hired at Unison, because
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of his criminal record. According to plaintiff, he was told that the disqualification was job related

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and consistent with company business necessity. When plaintiff inquired further, one

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representative informed plaintiff that he could not have any criminal record, and another

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representative stated that he could not have any felonies or serious misdemeanors. Plaintiff

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admits that he has a misdemeanor from 2010 for using his brother’s driver’s license and a

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misdemeanor from 2013 for petty theft, but does not believe that those convictions are job related

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or require exclusion from an electrician assembler position. Plaintiff contends that he was

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discriminated against on the basis of his race in violation of Title VII of the Civil Rights Act and

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on the basis of age in violation of the Age Discrimination in Employment Act (“ADEA”).

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Plaintiff’s complaint is subject to dismissal, because it states, on its face, a legitimate

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reason for why defendants refused to hire plaintiff. Generally, employers are free to refuse to hire

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applicants with any criminal record without violating Title VII or the ADEA, even if plaintiff

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personally disagrees with the relevance of such a requirement for the position he seeks.

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Furthermore, although plaintiff alleges that the reason given for the refusal to hire was pretextual,

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his allegation in that regard is entirely conclusory and unsupported by any specific factual

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allegations.

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In light of the above, the court dismisses plaintiff’s complaint, but with leave to amend.

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If plaintiff elects to file an amended complaint, it shall be captioned “First Amended Complaint”;

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shall address the deficiencies outlined above; and shall be filed within 28 days of this order.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order

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to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint, and once the first amended complaint is

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filed, the original complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff determines that he is unable to amend his complaint to state a viable claim in accordance

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with his obligations under Federal Rule of Civil Procedure 11, he may alternatively file a notice

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of voluntary dismissal of his claims without prejudice pursuant to Federal Rule of Civil Procedure
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41(a)(1)(A)(i) within 28 days of this order.

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Accordingly, IT IS HEREBY ORDERED that:

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

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2. Plaintiff’s complaint is dismissed with leave to amend.

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3. Within 28 days of this order, plaintiff shall file either a first amended complaint in

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compliance with this order or a request for voluntary dismissal of the action without

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prejudice.

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4. Failure to timely comply with this order may result in dismissal of the action with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
Dated: June 16, 2017

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