Austin v. City of Oakland et al

Filing 12

ORDER DISMISSING COMPLAINT WITH PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 8/7/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAMUEL E. AUSTIN,
Plaintiff,

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Northern District of California

United States District Court

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Case No.: 17-CV-03284 YGR
ORDER DISMISSING COMPLAINT WITH
PREJUDICE

vs.
CITY OF OAKLAND., et al.,

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Defendants.
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On June 7, 2017, plaintiff Samuel E. Austin, proceeding pro se, filed a complaint alleging

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discrimination, sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42

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U.S.C. 2000e (“Title VII”), and failure to accommodate under the Americans with Disabilities Act,

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42 U.S.C. 12101 (the “ADA”), against a litany of defendants including the City of Oakland, Equal

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Opportunity Program Administrator Barbara A. Sylvester, Barbara J. Parker of the City of Oakland’s
Attorney’s Office, Oakland Police Department Deputy Chief John Lois, Steve Pitocchi of the Local
1021 Service Employees International Union, the Oakland City Manager’s Office, and Assistant
Mayor Sabrina Landreth, individually and in their official capacities. (Dkt No. 1, Complaint.)1 On

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July 13, 2017, this Court dismissed Austin’s initial Complaint because the allegations were unclear as
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to whether the Complaint was timely. (Dkt. No. 10.) Austin was granted leave to amend to give him
an opportunity to make allegations showing timeliness if he could do so in good faith. (Id.) Austin
filed an amended complaint on August 1, 2017. (Dkt. No. 11, First Amended Complaint.)

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Magistrate Judge Elizabeth D. Laporte granted Austin’s application to proceed in forma pauperis
on June 13, 2017. (Dkt. No. 5.)

Having considered the First Amended Complaint and applicable law, and for the reasons set

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forth below, the Court finds that it is time-barred. The First Amended Complaint is therefore

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DISMISSED WITH PREJUDICE.

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I.

Legal Framework
a.

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Standard for Dismissal of Claims Filed In Forma Pauperis

A court may dismiss sua sponte (of its own accord) claims filed in forma pauperis if the court

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determines that the action fails to state a claim on which relief may be granted. See 28 U.S.C. §

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1915(e)(2); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). “Dismissals on these grounds are

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often made sua sponte prior to the issuance of process, so as to spare prospective defendants the

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Northern District of California

United States District Court

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inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324
(1989) (citing Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984)).

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Pursuant to Title VII and the ADA, an aggrieved person has 90 days to bring a civil action
after he receives his right-to-sue letter from the Equal Employment Opportunity Commission

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(“EEOC”). See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(e). “This 90-day period ‘operates as a
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limitations period,’ meaning that if a claimant does not file a civil action within the 90 days, ‘then the
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action is time-barred.’” Smith v. Brennan, 2016 WL 1446720, at *5 (N.D. Cal. 2016) (quoting Payan
v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1121 (9th Cir. 2007)); see also Scholar v. Pac.
Bell, 963 F.2d 264, 266-67 (9th Cir.1992); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th
Cir. 1997) (holding that the “ninety-day period is a statute of limitations”). Accordingly, an aggrieved

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person must “file suit within 90 days of receiving notice of the final agency action on his complaint.”

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Id. (citing Bullock v. Berrien, 688 F.3d 613, 616 (9th Cir. 2012)). If an aggrieved person fails to “file

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suit within 90 days of receiving his right-to-sue notice, his claims are time-barred and must be

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dismissed.” Id. (citing Payan, 495 F.3d at 1127).

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II.

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Discussion
Here, Austin filed the First Amended Complaint in forma pauperis. Accordingly, the Court

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has jurisdiction to dismiss the First Amended Complaint sua sponte if it fails to state a claim on which

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relief may be granted. See 28 U.S.C. § 1915(e)(2); Jackson, 885 F.2d at 640. Plaintiff alleges that he

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received his right-to-sue letter on February 27, 2017. (First Amended Complaint ¶¶ 58, 61.) Austin

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filed his initial Complaint 100 days later, on June 7, 2017. Therefore, Austin did “not file suit within

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90 days of receiving his right-to-sue notice.” See Brennan, 2016 WL 1446720, at *5 (citing Payan,

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495 F.3d at1121–22). Accordingly, Austin’s “claims are time-barred and must be dismissed.” Id.

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(citing Payan, 495 F.3d at 1127).

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III.

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Northern District of California

United States District Court

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Conclusion
For the reasons stated herein, the Court finds that the action is time-barred. Therefore,

plaintiff’s First Amended Complaint is DISMISSED WITH PREJUDICE.
The Clerk shall close the file.
This Order terminates Dkt. No. 11.
IT IS SO ORDERED.

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Date: __________, 2017
August 7

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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