Bermudez L. v. The Westin St. Francis Hotel

Filing 6

ORDER Dismissing Complaint Sua Sponte by Magistrate Judge Elizabeth D. Laporte. (Attachments: # 1 certificate of service)(shyS, COURT STAFF) (Filed on 2/29/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JUAN F. BERMUDEZ L., 7 Plaintiff, 8 ORDER DISMISSING COMPLAINT SUA SPONTE v. 9 THE WESTIN ST. FRANCIS HOTEL, 10 Re: Dkt. No. 1 Defendant. 11 United States District Court Northern District of California Case No. 16-cv-00257-EDL 12 Plaintiff Juan F. Bermudez filed his Complaint and Application to Proceed In Forma 13 Pauperis on January 15, 2016 and his consent to magistrate jurisdiction on January 26, 2016. 14 Plaintiff’s application to proceed in forma pauperis was granted on January 20, 2015. The 15 complaint is now dismissed sua sponte with leave to amend.1 Although Plaintiff's Application to Proceed In Forma Pauperis was granted, the Marshal 16 17 shall not serve the Complaint. In reviewing an application to proceed in forma pauperis, the court 18 may dismiss a case sua sponte if the court determines that the party applying for in forma pauperis 19 status has filed a frivolous action. 28 U.S.C. § 1915(e)(2); Jackson v. Arizona, 885 F.2d 639, 640 20 (9th Cir. 1989). For purposes of 28 U.S.C. § 1915, a frivolous claim is one that lacks an arguable 21 basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831-32 22 (1989). Dismissal on these grounds is often ordered sua sponte prior to the issuance of process, so 23 as to spare prospective defendants the inconvenience and expense of answering such complaints. 24 Id., 490 U.S. at 324, 109 S. Ct. at 1831. Where a litigant is acting pro se and the court finds the 25 1 26 27 28 To the extent that this order is dispositive, the Court does not require the consent of Defendants because Defendants have not been served and therefore are not parties under the meaning of 28 U.S.C. § 636(c). See Ornelas v. De Frantz, 2000 WL 973684, *2, n.2 (N.D. Cal. 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (magistrate judge had jurisdiction to dismiss prisoner’s civil rights action without consent of the defendants because the defendants had not been served yet and therefore were not parties)). 1 litigant's complaint frivolous within the meaning of 28 U.S.C. § 1915(e)(2), the court must give 2 the litigant notice of the deficiencies of the complaint and an opportunity to amend before final 3 dismissal, unless it is absolutely clear that the deficiencies of the complaint could not be cured by 4 amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Eldridge v. Block, 832 F.2d 5 1132, 1135-37 (9th Cir. 1987). 6 Plaintiff alleges that he was discharged on December 7, 2012. ¶ 5L. He filed a claim with 7 the EEOC on February 26, 2013, Dkt. 1 at 9, alleging national origin discrimination in violation of 8 Title VII and also age discrimination under the ADEA. A right to sue letter was issued by the 9 EEOC on October 22, 2015. The Complaint was filed on January 15, 2016. 10 Plaintiff relates a number of incidents beginning in 1989 in which he believes he was United States District Court Northern District of California 11 unfairly disciplined, terminated, rehired and ultimately fired. The Complaint contains allegations 12 of a 1989 incident in which he was treated differently and more harshly than people of different 13 nationalities ¶ 5c, 5d and also alleges that a number of incidents beginning in 2000 and 14 culminating in his firing in 2012 were based on his national origin. With regard to his ADA 15 claim, he alleges that because of an agreement made before he was rehired in 2012 “that at one 16 mistake” he would be terminated, he developed “an unknow[n] medical condition of temporary 17 [loss] of memory, as [diagnosed] by his” doctor on December 5, 2012. 18 was fired because of his alleged loss of memory. ¶ 5L. 19 ¶ 5k. Two days later he Plaintiff does not name any specific individuals who carried out any of the actions 20 described in the Complaint. Further, although Plaintiff identifies only the Westin St. Francis Hotel 21 as the defendant in the caption of the Complaint, in the body of the Complaint he identifies 22 Defendant 1 as “The Westin St. Francis Hotel/Debra Higa and as Defendant 2 “Hirschfeld 23 Kraemer LLP/Amy Durgan.” Complaint, p. 2. The Complaint does not state what actions alleged 24 in the Complaint, if any, are attributable to these defendants and the caption does not name Debra 25 Higa or “Defendant 2.” Accordingly, the Complaint fails to include a “short and plain statement 26 of the claim showing that the pleader is entitled to relief” as required by Federal Rule of Civil 27 Procedure 8(a)(2). Therefore, the Complaint is dismissed. 28 Plaintiff is granted leave to file an amended complaint. Any amended complaint must be 2 1 filed within 30 days of the date of this Order, and should clearly state which allegations and claims 2 relate to which Defendants. 3 Plaintiff may wish to seek assistance from the Legal Help Center, a free service of the 4 Volunteer Legal Services Program, by calling (415) 782-8982 or signing up for an appointment on 5 the 15th Floor of the Courthouse, Room 2796. At the Legal Help Center, Plaintiffs may speak with 6 an attorney who may be able to provide basic legal help, but not legal representation. The Court 7 also urges Plaintiffs to obtain a copy of the Pro Se Handbook, available free of charge from the 8 Court's website ( or in the Clerk's Office on the 16th Floor, 450 Golden 9 Gate Avenue, San Francisco, CA. 10 United States District Court Northern District of California 11 12 IT IS SO ORDERED. Dated: February 29, 2016 13 14 ELIZABETH D. LAPORTE United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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