Ivy v. Davita

Filing 13

ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Kandis A. Westmore on August 16, 2013. (kawlc2, COURT STAFF) (Filed on 8/16/2013) (Additional attachment(s) added on 8/16/2013: # 1 Certificate/Proof of Service) (sisS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THYSIAH B. IVY,

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Plaintiff,

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Northern District of California

United States District Court

ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND

v.

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Case No.: 13-cv-1326 KAW

DAVITA,
Defendant.

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Plaintiff, who is proceeding pro se and in forma pauperis, filed this case on March 25,

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2013. Plaintiff has consented to the undersigned's jurisdiction. See 28 U.S.C. § 636(c). The

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Court previously twice dismissed Plaintiff's complaint with leave to amend. Plaintiff filed a

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second amended complaint on June 28, 2013.

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Pursuant to 28 U.S.C. § 1915(e)(2), a court “shall dismiss the case at any time if the court

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determines that . . . the action . . . fails to state a claim on which relief may be granted.” See Fed.

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R. Civ. P. 12(b)(6). Plaintiff's second amended complaint fails to state a claim on which relief

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can be granted against Defendant Davita. The Court again dismisses his complaint with leave to

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amend.

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Plaintiff's second amended complaint does attempt to comply with the instructions in the

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Court's last order, as it identifies the individuals at Defendant Davita who allegedly

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discriminated against him. But Plaintiff's second amended complaint again fails to explain why

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he believes he was discriminated against based on his race, sex, and age.

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Title VII provides that it is unlawful for an employer "to fail or refuse to hire or to

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discharge any individual, or otherwise to discriminate against any individual with respect to his

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compensation, terms, conditions, or privileges of employment, because of such individual's race,

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color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2 (West).

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Title VII prohibits actions taken against an employee in retaliation for opposing an

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unlawful employment practice, or making a charge or participating in a Title VII investigation or

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proceeding. See 42 U.S.C.A. § 2000e-3 (West). To meet the pleading standards for a prima

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facie claim of retaliation, Plaintiff must allege facts showing that: 1) he engaged in a protected

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activity; 2) his employer subjected him to an adverse employment action; and 3) a causal link

1240 (9th Cir. 2000). An employee's opposition to an unlawful employment practice under Title

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Northern District of California

exists between the protected activity and the adverse action. Ray v. Henderson, 217 F.3d 1234,

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United States District Court

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VII, or participation in a Title VII investigation, can constitute protected activity. Hashimoto v.

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Dalton, 118 F.3d 671, 680 (9th Cir. 1997).

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Plaintiff's second amended complaint contains conclusory allegations that he was

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discriminated against on the basis of his race (black), sex (male), and age (63). He further

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alleges that he was the oldest staff member at his job. But Plaintiff does not explain why he

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believes that he was discriminated against because of his race, sex or age. He fails to provide

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any facts that show that anyone took action against him because of his race, sex, or age. He does

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not allege, for example, that the people who participated in his termination made discriminatory

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comments to or about him, or discriminated against others on the basis of race, sex, or age. Nor

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does he allege that he was fired in retaliation for complaining about discrimination.

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The Court will give Plaintiff one last chance to amend his complaint. As noted in the

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Court's previous order, Plaintiff may wish to seek free limited legal assistance from the Federal

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Pro Bono Project by calling the appointment line at [phone] x 8657 or signing up for an

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appointment in the appointment book located outside the door of the Project, located at the San

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Francisco courthouse on the 15th Floor, Room 2796. Appointments are held Monday through

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Friday at various times throughout the day. Plaintiff can speak with an attorney who will

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provide basic legal help, but not legal representation.

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Accordingly, it is hereby ORDERED that:

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The complaint is dismissed with leave to amend. Within 30 days of the date of

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this order, Plaintiff shall file a third amended complaint, if possible, curing the deficiencies

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explained above. If Plaintiff is unable to file such a third amended complaint, he may also file a

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dismissal of the case without prejudice.

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2.

The case management conference currently set for August 27, 2013 is hereby

VACATED.
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Failure to comply with this order may result in the dismissal of the case for failure

to prosecute.

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DATE: August 16, 2013

__________________________
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

Northern District of California

United States District Court

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