Mitchell v. Shulkin

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/23/18: Plaintiff's request for leave to proceed in forma pauperis 2 is granted. Plaintiff's complaint is dismissed with leave to amend. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT MITCHELL JR.,

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Plaintiff,

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v.

No. 2:17-cv-1239-JAM-EFB PS

ORDER

DAVID J. SHULKIN, Secretary of
Veterans Affairs,
Defendant.

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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 fails to state a claim and must be dismissed.
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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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Applying these standards here, plaintiff’s complaint must be dismissed for failure to state

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a claim. Plaintiff filed this employment discrimination action against defendant the Secretary of

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United States Department of Veterans Affairs (“VA”), alleging that he was subjected to racial

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discrimination and a hostile work environment while working for the VA. ECF No. 1. The

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“Statement of Claim” section of the complaint, rather than providing factual allegations, merely

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states “See Attached ‘Reports of Contact,” which are appended to the complaint. The four

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Reports of Conduct indicate that plaintiff, who worked for the VA as an addiction therapist, felt

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he was mistreated by other VA employees. For example, in one report plaintiff describes disputes

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between himself and other employees—including plaintiff’s supervisor, Dr. Tara Neavins—
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regarding the appropriate treatment of two patients. Id. at 8. Plaintiff claims that he had a plan

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for treating the patients, but other employees subjected plaintiff to questioning and required him

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to explain his clinical decisions. Id. He claims that he was being singled out and that the

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questions were the “direct result of the color of [his] skin.” Id.

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Another report details a meeting plaintiff subsequently had with Dr. Martin Leamon, who

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appears to be the director of plaintiff’s department, and Dr. Neavins. Id. At the meeting, plaintiff

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expressed his frustrations regarding how others were treating him, and informed Dr. Leamon that

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he wanted to be treated the same as his colleagues. Id. Dr. Leamon allegedly responded by

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stating, “That’s just it, you do want to be treated different than you are being treated.” Id.

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Plaintiff contends that Dr. Leamon’s statement confirmed that plaintiff has “been the victim of

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discrimination, harassment, and subjected to a hostile and toxic work environment . . . based on

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the color of [his] skin, by Dr. Tara Neavins . . . .” Id.

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A third report describes an incident where plaintiff found Dr. Neavins accessing his

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computer. Id. at 14. When plaintiff asked Dr. Neavins why she was accessing his computer, she

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stated that she was turning down music that was playing through the computer. Id. Plaintiff

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claims, however, that Dr. Neavins’ explanation was a lie because plaintiff witnessed her

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accessing computer files. Plaintiff further states that she is in mediation with Dr. Neavins

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regarding a prior dispute and suggests that Dr. Neavins may have been trying to access

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documents related to the mediation. Id.

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The last report concerns a dispute plaintiff had with other employees during a retreat. Id.

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Dr. Neavin allegedly brought up a previous conflict plaintiff had with another employee named

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Caren. During the prior conflict, Caren allegedly stated that plaintiff had no right to make clinical

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decision regarding a patient since he was only an addiction therapist and not a nurse. Id. at 17.

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During the retreat, another prior altercation, which plaintiff refers to as the “Hang Town”

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conversation, was raised by a different employee. Plaintiff contends that raising these prior

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disputes caused an environment that was “really hostile and racially charged.” Id. (emphasis in

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original).

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Also appended to the complaint is an email dated October 30, 2016, from Dr. Neavins to

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plaintiff and another African American employee. In the email, Dr. Neavins asks if plaintiff and

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the other employee had “seen the green rag” for the “large group room (B-119). Id. at 11.

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Plaintiff “view[s] this email as Dr. Neavins associating ‘A rag’ to the color of [his] skin (Black)”

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because the email was sent to the only two African American clinicians working in the building.”

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Id.

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Although the complaint does not assert any particular cause of action, the reports

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appended to the complaint suggests that plaintiff seeks to assert a hostile work environment claim

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under Title VII claim. To state a Title VII claim predicate on a hostile work environment, a

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plaintiff must allege (1) that he “was subjected to verbal or physical conduct based on race or

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national origin; (2) that the conduct was unwelcome; (3) that the conduct was ‘sufficiently severe

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or pervasive to alter the conditions of [his] employment and create an abusive work

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environment.” Galdamez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 2005). The plaintiff must

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demonstrate that the work environment was both subjectively and objectively hostile. Id. In

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assessing whether the environment was objectively hostile, the court looks “to all of the

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circumstances, including the frequency, severity, and nature (i.e., physically threatening or

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humiliating as opposed to merely verbally offensive) of the conduct.” Id.

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The documents appended to plaintiff’s complaint reflect that plaintiff was involved in

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various work-related disputes, which plaintiff attributes to racial animus. The complaint,

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however, is devoid of any factual allegations demonstrating that the work-related disputes were

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sufficiently severe or pervasive to alter the condition of plaintiff’s employment. Further, the

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Reports of Conduct do not reflect that plaintiff’s work environment was objectively hostile. The

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few incidents described in the reports, which occurred over the course of a year, do not involve

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threatening or humiliating conduct. Instead, they largely reflect disagreements as to the

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appropriate course of care for patients. Accordingly, plaintiff’s complaint must be dismissed for

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failure to state a claim.

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Plaintiff is granted leave to file an amended complaint, if he can allege a cognizable legal
theory against a proper defendant and sufficient facts in support of that cognizable legal theory.
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Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro

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se litigants an opportunity to amend to correct any deficiency in their complaints). Should

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plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the

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allegations against defendant and shall specify a basis for this court’s subject matter jurisdiction.

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

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far as 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: August 23, 2018.

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