Stevens v. IMKO Workforce Solutions et al
Filing
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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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