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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAY STEVENS,

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No. 2:18-cv-01065 TLN AC (PS)
Plaintiff,

v.

FINDINGS AND RECOMMENDATIONS

SIEMENS MOBILITY and SUPERIOR
GROUP,
Defendants.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by E.D. Cal. 302(c)(21). Plaintiff previously filed a complaint with a request for

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leave to proceed in forma pauperis (“IFP”). ECF Nos. 1 and 2. The motion to proceed IFP was

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granted, but plaintiff’s complaint was dismissed on screening with leave to amend. ECF No. 3.

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Plaintiff timely filed a First Amended Complaint (“FAC”). The undersigned has reviewed the

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FAC and recommends it be dismissed without leave to amend.

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I. SCREENING
The federal IFP statute requires federal courts to dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff must assist the court in determining whether or not the complaint is frivolous, by drafting
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the complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”).

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Under these rules, the complaint must contain (1) a “short and plain statement” of the basis for

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federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court),

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(2) a short and plain statement showing that plaintiff is entitled to relief (that is, who harmed the

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plaintiff, and in what way), and (3) a demand for the relief sought. Fed. R. Civ. P. 8(a).

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Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R. Civ. P. 8(d)(1).

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von

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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.

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denied, 564 U.S. 1037 (2011).

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The court applies the same rules of construction in determining whether the complaint

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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a

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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). However, the court need not accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

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to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009).

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To state a claim on which relief may be granted, the plaintiff must allege enough facts “to

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state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

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

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

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678.  A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity
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to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in

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Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc).

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II. ANALYSIS

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A. Allegations in the FAC

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Plaintiff brings suit against Siemens Mobility and Superior Group under “Title VII FEP

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laws.” ECF No. 6 at 4. Plaintiff’s FAC is apparently premised on being denied employment due

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to a past criminal conviction. Specifically, plaintiff alleges defendant Superior Group did an

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employment screening for Siemens, and found him qualified pending a background check. Id. at

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5. Plaintiff alleges Siemens failed to hire him after his background check, and the position

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remained open until another applicant filled it. Id. Plaintiff asserts Siemen’s policy regarding

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criminal history with respect to misdemeanors fails to protect the group. Id. Plaintiff’s FAC is

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very similar to his original complaint, with the FAC alleging fewer facts than the original

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complaint. Compare ECF Nos. 1 and 6.

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B. The FAC Cannot Withstand Screening

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Plaintiff’s FAC alleges no additional facts, and so requires dismissal on screening for the

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same reasons his initial complaint was dismissed. Compare ECF Nos. 1 and 6. As with the

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initial complaint, the FAC does not contain facts supporting any cognizable legal claim against

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any defendant. Plaintiff has been cautioned in a previous case that, in general, “employers are

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free to refuse to hire applicants with any criminal record without violating Title VII or the ADEA,

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even if plaintiff personally disagrees with the relevance of such a requirement for the position he

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seeks.” Stevens v. IMKO Workforce Sols., No. 217-cv-1026-MCE-KJN-PS, 2017 WL 4284639,

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at *2 (E.D. Cal. Sept. 27, 2017). Plaintiff has also been advised that he cannot state a claim by

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asserting in conclusory fashion, without any supporting factual allegations, that racial

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discrimination was defendants’ true reason for failing to hire him. Id.

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Plaintiff fails to assert any facts to support his belief (which is not expressly stated in the

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FAC, but can be inferred) that his failure to be hired was due to his criminal conviction. Even if

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he had alleged such a fact, he does not allege why he believes rejection based on his criminal
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conviction was pretext for discrimination. Upon dismissal of his initial complaint, the court

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instructed plaintiff that his “amended complaint must provide a clear recitation of the facts

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supporting his claims, including what legal harm he alleges was done and by whom, as well as

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specific facts supporting his claim of discrimination.” ECF No. 3 at 4. Plaintiff’s FAC does not

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comply with the court’s order and does not allege the facts necessary to withstand screening.

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Although pro se plaintiffs are ordinarily given leave to amend when their case is

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dismissed on screening, leave to amend is not appropriate here because it is clear to the court that

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amendment would be futile. Noll, 809 at 1448. When plaintiff’s original complaint dismissed he

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was given clear instructions on how to provide an amended complaint that would withstand

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screening. ECF No. 3 at 4. His FAC not only fails to comply and to allege the necessary facts, it

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contains less information than the original complaint. This backward progression indicates that

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further leave to amend would be futile.

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IV. CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s First Amended

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Complaint be dismissed without leave to amend for failure to state a claim upon which relief can

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be granted.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure

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to file objections within the specified time may waive the right to appeal the District Court’s

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order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153,

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1156-57 (9th Cir. 1991).

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DATED: July 9, 2018

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