Boyd v. Pacifica Foundation et al

Filing 12

ORDER dismissing complaint with prejudice under 28 U.S.C. section 1915. Signed by Judge Joseph C. Spero on February 11, 2014. (jcslc2, COURT STAFF) (Filed on 2/11/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AKAN BOYD,

Case No. 13-cv-03672-JCS

Plaintiff,
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v.
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PACIFICA FOUNDATION, et al.,
Defendants.

ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH
PREJUDICE UNDER 28 U.S.C. 1915
Dkt. No. 11

United States District Court
Northern District of California

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I.

INTRODUCTION

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On November 8, 2013, the Court dismissed Plaintiff’s complaint under 28 U.S.C. §

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1915(e)(2), and granted Plaintiff leave to amend his claim under Title VII of the Civil Rights Act

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of 1964, 42 U.S.C. § 2000e-2. See Dkt. No. 8. The Court explained in the dismissal order that for

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the Title VII claim to survive review under § 1915, Plaintiff had to allege facts in an amended

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complaint demonstrating that the Title VII claim was timely, as well as facts supporting a

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plausible claim for discrimination.

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On January 7, 2014, Plaintiff filed a First Amended Complaint. For the reasons explained

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further below, the First Amended Complaint still fails to state a claim under Title VII. The Court

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is required to dismiss an in forma pauperis complaint that fails to state a claim or is frivolous or

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malicious. 28 U.S.C. § 1915(e)(2). Having already granted Plaintiff an opportunity to amend his

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complaint, and having provided specific instructions as to what allegations were necessary for the

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Title VII claim to proceed, the Court dismisses the First Amended Complaint under 28 U.S.C. §

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1915(e)(2) without leave to amend.1

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Plaintiff has consented to the jurisdiction of the undersigned magistrate judge pursuant to
28 U.S.C. § 636(c). Although a magistrate judge does not have jurisdiction over an action unless

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II.

BACKGROUND

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A.

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As set forth more fully in the Court’s previous order, Plaintiff alleges that he was

Factual Background

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discrimination against by Pacific Radio KPFA 91.1 FM (hereafter, “KPFA”). Plaintiff had

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applied to participate in KPFA’s apprenticeship-training program, but was not selected. First

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Amended Complaint (“FAC”) at 1. Plaintiff alleges that he was discriminated against on the basis

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of his national origin. Plaintiff alleges that he was qualified for the position. Plaintiff also alleges

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that KPFA’s interview committee did not ask any questions regarding his experience, and only

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asked ambiguous and indirect questions (the substance of which is described in the previous

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order).

United States District Court
Northern District of California

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B.

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In the previous order, the Court noted two deficiencies with respect to Plaintiff’s claim

Previous Dismissal Order

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under Title VII. First, the Court explained that Plaintiff must allege facts demonstrating

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compliance with Title VII’s time limits under 42 U.S.C. § 2000e-5(e)(1). Dkt. No. 8 at 5-6. That

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section requires Plaintiff to file a charge of discrimination with the Equal Employment

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Opportunity Commission (“EEOC”) within 180 days of after the alleged discriminatory

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employment practice. See 42 U.S.C. § 2000e-5(e)(1). The previous complaint failed to state when

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Plaintiff was discriminated against, and also failed to state when Plaintiff filed a complaint with

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the EEOC.

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Second, the Court explained that Plaintiff’s previous complaint “failed to plead ‘enough

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facts to state a claim to relief that is plausible on its face.’ ” Dkt. No. 8 at 6 (citing Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 545 (2007)). Specifically, the Court noted that it was insufficient for

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all parties have consented, this Court does not require the consent of Defendant in order to
properly dismiss claims brought in this action because Defendant has not been served, and, as a
result, is not a party. See Neals v. Norwood, 59 F.3d 520, 532 (5th Cir. 1995) (holding that
magistrate judge had jurisdiction to dismiss prison inmate’s action under 42 U.S.C. § 1983 as
frivolous without consent of defendants because defendants had not been served yet and therefore
were not parties); see also United States v. Real Prop., 135 F.3d 1212, 1217 (8th Cir. 1998)
(holding the magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action
even though property owner had not consented to it because 18 U.S.C. § 636(c)(1) only requires
the consent of the parties and the property owner, having failed to comply with the applicable
filing requirements, was not a party).
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Plaintiff to allege that he is African American, is qualified for the position, but was not selected.

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The Court wrote that “Plaintiff must plead at least one fact that could possibly indicate

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discrimination.” Dkt. No. 8 at 6. Plaintiff was advised that “[i]f there are other facts which lead

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Plaintiff to believe that he was discriminated against on account of his national origin, then

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Plaintiff may plead such facts in an amended complaint.” Id.

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C.

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In the First Amended Complaint, Plaintiff alleges facts which bear on the timeliness of the

First Amended Complaint

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Title VII claim. Plaintiff states that he received an email from KPFA on August 14, 2011

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informing him that he had not been accepted into the training program. FAC at 1. Plaintiff also

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alleges that he filed a complaint with the EEOC on October 1, 2011. Id.

United States District Court
Northern District of California

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Plaintiff also alleges a few additional facts with respect to his Title VII claim. Plaintiff

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states that he was the most qualified applicant for the training program. Prior to the interview,

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Plaintiff became acquainted with the other interviewees and discovered that they “did not have

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community backgrounds.” FAC at 5. Unlike Plaintiff, “[t]he other three applicants were not

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community active or assailed as voices of the community at such time.” Id. at 4. Aside from

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these facts, there are no additional allegations in the First Amended Complaint that relate to the

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alleged discrimination by KPFA.

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III.

DISCUSSION

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A.

Legal Standard

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Under 28 U.S.C. § 1915(e)(2)(B), if a plaintiff is found to be indigent under 28 U.S.C. §

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1915(a)(1) and proceed in forma pauperis, the court must undergo a preliminary screening of the

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complaint and dismiss any claims which: (1) are frivolous and malicious; (2) fail to state a claim

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upon which relief may be granted; or (3) seek monetary relief from a defendant who is immune

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from such relief. To state a claim for relief, Plaintiff must make “a short and plain statement of

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the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). When reviewing the

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sufficiency of the Complaint, the Court takes “all allegations of material fact as true and

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construe(s) them in the lights most favorable to the non-moving party.” Parks Sch. of Bus. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1990). The “tenet that a court must accept a complaint’s
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allegations as true,” however, “is inapplicable to … mere conclusory statements.” Ashcroft v.

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Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)).

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The complaint need not contain “detailed factual allegations,” but must allege facts sufficient to

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“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 663 (citing Twombly, 550

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U.S. at 547). Complaints filed by pro se litigants must be liberally construed. Erickson v. Pardus,

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551 U.S. 89, 94 (2007).

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B.

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Plaintiff’s First Amended Complaint alleges important dates that were lacking in the

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Analysis

previous complaint. Plaintiff alleges that he received the email informing him that he was not
selected for the training program on August 14, 2011. Plaintiff also alleges that he filed a charge

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United States District Court
Northern District of California

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within 180 days of that date. FAC at 1. Specifically, Plaintiff states that he personally delivered

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the charge to EEOC’s office in Oakland on October 1, 2011. Id. Plaintiff also alleges that he

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received a right to sue letter from the EEOC on May 16, 2013. Accordingly, Plaintiff has alleged

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facts demonstrating the timeliness of the Title VII claim. See 42 U.S.C. § 2000e-5(e)(1); see also

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Dkt. No. 8 at 5 (holding that Plaintiff complied with the requirement in § 2000e-5(f)(1) to file this

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lawsuit within 90 days of receiving his right to sue letter).

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Nevertheless, Plaintiff has not alleged additional facts “to state a claim to relief that is

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plausible on its face.” Twombly, 550 U.S. at 570. Like the previous complaint, the First Amended

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Complaint is verbose and describes Plaintiff’s perception of the injustice which he believes

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occurred. It does not, however, allege any facts suggesting that Plaintiff was discriminated

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against. Plaintiff alleges that he was African American and that he was the most qualified

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applicant for the position. In the First Amended Complaint, Plaintiff alleges that he met three of

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the other applicants prior to the interview, and learned that none of these applicants had experience

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working in community development organizations or being a voice of the community. Even

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assuming this to be true, this does not suggest that Plaintiff was discriminated against on the basis

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of his race or national origin.

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Plaintiff does not allege that the applicants he met were selected for the training program.
Plaintiff also does not allege any particular characteristic of these applicants other than the fact
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the had less co
ey
ommunity development experience than Plaintif There ca be any num
d
ff.
an
mber of

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rea
asons why th
hese applican may (or may not) hav been chos over Plai
nts
m
ve
sen
intiff to part
ticipate in

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the training pro
e
ogram that do not pertain to the fact Plaintiff is A
d
n
African Ame
erican. For i
instance, the
e

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inte
erviewers may not have liked Plaintiff’s respons to the que
m
se
estion regard
ding gender r
relations. As

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exp
plained in th previous order, the fac the intervi
he
o
ct
iewer does n like the su
not
ubstance of Plaintiff’s

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ans
swer to an in
nterview que
estion does not suggest P
n
Plaintiff was not selected for the prog
d
gram

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bec
cause of his race or natio origin. In fact, it im
onal
mplies the co
ontrary.

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IV.

CONCLUSION

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easons, the First Amend Complain is DISMISSED WITH
F
ded
nt
H
For the foregoing re

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PR
REJUDICE under 28 U.S § 1915(e
u
S.C.
e)(2). The C
Clerk is direc to close the file in th case.
cted
e
his

United States District Court
Northern District of California

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IT IS SO ORDER
S
RED.
Da
ated: Februar 11, 2014
ry
___
__________
___________
__________
________
JO
OSEPH C. SP
PERO
Un
nited States M
Magistrate Ju
udge

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