Stevens v. Siemens Mobility

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/9/18 Recommending that Plaintiff's Amended Complaint 6 be dismissed without leave to amend for failure to state a claim upon which relief can be granted. These Findings and Recommendations are submitted to U.S. District Judge Troy L. Nunley; Objections to these F&Rs due within twenty one days. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAY STEVENS, 12 13 14 15 16 No. 2:18-cv-01065 TLN AC (PS) Plaintiff, v. FINDINGS AND RECOMMENDATIONS SIEMENS MOBILITY and SUPERIOR GROUP, Defendants. 17 18 Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the 19 undersigned by E.D. Cal. 302(c)(21). Plaintiff previously filed a complaint with a request for 20 leave to proceed in forma pauperis (“IFP”). ECF Nos. 1 and 2. The motion to proceed IFP was 21 granted, but plaintiff’s complaint was dismissed on screening with leave to amend. ECF No. 3. 22 Plaintiff timely filed a First Amended Complaint (“FAC”). The undersigned has reviewed the 23 FAC and recommends it be dismissed without leave to amend. 24 25 I. SCREENING The federal IFP statute requires federal courts to dismiss a case if the action is legally 26 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 28 Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting 1 1 the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). 2 Under these rules, the complaint must contain (1) a “short and plain statement” of the basis for 3 federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court), 4 (2) a short and plain statement showing that plaintiff is entitled to relief (that is, who harmed the 5 plaintiff, and in what way), and (3) a demand for the relief sought. Fed. R. Civ. P. 8(a). 6 Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R. Civ. P. 8(d)(1). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 9 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 10 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 11 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von 12 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 13 denied, 564 U.S. 1037 (2011). 14 The court applies the same rules of construction in determining whether the complaint 15 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 16 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 17 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 18 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 19 (1972). However, the court need not accept as true conclusory allegations, unreasonable 20 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 21 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 22 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 23 556 U.S. 662, 678 (2009). 24 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 25 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has 26 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 27 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 28 678.  A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 2 1 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v. 2 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in 3 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc). 4 II. ANALYSIS 5 A. Allegations in the FAC 6 Plaintiff brings suit against Siemens Mobility and Superior Group under “Title VII FEP 7 laws.” ECF No. 6 at 4. Plaintiff’s FAC is apparently premised on being denied employment due 8 to a past criminal conviction. Specifically, plaintiff alleges defendant Superior Group did an 9 employment screening for Siemens, and found him qualified pending a background check. Id. at 10 5. Plaintiff alleges Siemens failed to hire him after his background check, and the position 11 remained open until another applicant filled it. Id. Plaintiff asserts Siemen’s policy regarding 12 criminal history with respect to misdemeanors fails to protect the group. Id. Plaintiff’s FAC is 13 very similar to his original complaint, with the FAC alleging fewer facts than the original 14 complaint. Compare ECF Nos. 1 and 6. 15 B. The FAC Cannot Withstand Screening 16 Plaintiff’s FAC alleges no additional facts, and so requires dismissal on screening for the 17 same reasons his initial complaint was dismissed. Compare ECF Nos. 1 and 6. As with the 18 initial complaint, the FAC does not contain facts supporting any cognizable legal claim against 19 any defendant. Plaintiff has been cautioned in a previous case that, in general, “employers are 20 free to refuse to hire applicants with any criminal record without violating Title VII or the ADEA, 21 even if plaintiff personally disagrees with the relevance of such a requirement for the position he 22 seeks.” Stevens v. IMKO Workforce Sols., No. 217-cv-1026-MCE-KJN-PS, 2017 WL 4284639, 23 at *2 (E.D. Cal. Sept. 27, 2017). Plaintiff has also been advised that he cannot state a claim by 24 asserting in conclusory fashion, without any supporting factual allegations, that racial 25 discrimination was defendants’ true reason for failing to hire him. Id. 26 Plaintiff fails to assert any facts to support his belief (which is not expressly stated in the 27 FAC, but can be inferred) that his failure to be hired was due to his criminal conviction. Even if 28 he had alleged such a fact, he does not allege why he believes rejection based on his criminal 3 1 conviction was pretext for discrimination. Upon dismissal of his initial complaint, the court 2 instructed plaintiff that his “amended complaint must provide a clear recitation of the facts 3 supporting his claims, including what legal harm he alleges was done and by whom, as well as 4 specific facts supporting his claim of discrimination.” ECF No. 3 at 4. Plaintiff’s FAC does not 5 comply with the court’s order and does not allege the facts necessary to withstand screening. 6 Although pro se plaintiffs are ordinarily given leave to amend when their case is 7 dismissed on screening, leave to amend is not appropriate here because it is clear to the court that 8 amendment would be futile. Noll, 809 at 1448. When plaintiff’s original complaint dismissed he 9 was given clear instructions on how to provide an amended complaint that would withstand 10 screening. ECF No. 3 at 4. His FAC not only fails to comply and to allege the necessary facts, it 11 contains less information than the original complaint. This backward progression indicates that 12 further leave to amend would be futile. 13 14 IV. CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s First Amended 15 Complaint be dismissed without leave to amend for failure to state a claim upon which relief can 16 be granted. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days 19 after being served with these findings and recommendations, plaintiff may file written objections 20 with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document 21 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure 22 to file objections within the specified time may waive the right to appeal the District Court’s 23 order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 24 1156-57 (9th Cir. 1991). 25 DATED: July 9, 2018 26 27 28 4

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