Ellis v. Kaiser Permanente et al

Filing 69

ORDER Denying 53 Motion for Summary Judgment and to add additional defendants are denied. Signed by Judge Larry Alan Burns on 6/2/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 SHA’LENA ELLIZABETHANN ELLIS, 13 CASE NO. 16cv195-LAB (KSC) Plaintiff, vs. 14 15 ORDER DENYING MOTION FOR SUMMARY JUDGMENT KAISER PERMANENTE, et al., 16 Defendants. Pro se litigant Sha'lena Ellis sued Southern California Permanente Medical Group and 17 her three supervisors (“Kaiser”) for, among other things, discrimination, retaliation, and 18 wrongful termination when Kaiser fired her after ten years of employment. Kaiser says it fired 19 Ellis because of her “chronic tardiness and a spate of errors in administering patient 20 vaccines and submitting laboratory samples.” Ellis says Kaiser retaliated against her 21 because she’s black, disabled, and was pregnant. Ellis moved for summary judgment on her 22 14 claims under 42 U.S.C. §§ 1981 and 1983, Title VII, and the ADA. 23 I. 24 Summary judgment is appropriate where the moving party demonstrates that “there 25 is no genuine dispute as to any material fact and the movant is entitled to judgment as a 26 matter of law.” Fed. R. Civ. P. 56(a). Ellis hasn’t offered any argument, authority, or 27 evidence that shows her claims are undisputed. The motion for summary judgment is 28 denied. Summary Judgment -1- 16cv195 1 II. 2 Last year, the Court granted Ellis’s motion for leave to proceed in forma pauperis. 3 28 U.S.C. § 1915. The statute requires the Court to “dismiss the case at any time” if the 4 action “fails to state a claim on which relief may be granted.” And the Court “may dismiss a 5 claim sua sponte” when the party “cannot possibly win relief.” Omar v. Sea-Land Serv., Inc., 6 813 F.2d 986, 991 (9th Cir. 1987). Some of Ellis’s claims fall into this category. 7 Dismissal A. The § 1983 Claims 8 The Court dismisses all of Ellis’s § 1983 claims because Kaiser is a private 9 employer—none of the defendants were acting “under color of state law” or engaged in state 10 action. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); Tate v. Kaiser Found. Hosps., 11 2014 WL 176625, at *4 (C.D. Cal. Jan. 15, 2014) (granting summary judgment on § 1983 12 claims because Kaiser not a state actor). The Court dismisses claims 1–3 and 11–14 with 13 prejudice. 14 B. The Title VII and ADA claims 15 Ellis has no claims against her supervisors in their individual capacity under Title VII 16 or the ADA. Walsh v. Nevada Dep't of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006). But 17 Ellis can sue her supervisors in their official capacity as agents of Kaiser. Miller v. Maxwell's 18 Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 19 1995) (“a supervisory employee may be joined as a party defendant in a Title VII action” but 20 is “viewed as being sued in his capacity as the agent of the employer, who is alone liable”). 21 Since Ellis is a pro se litigant, and Kaiser hasn’t moved to dismiss, the Court charitably 22 interprets her complaint as suing her supervisors in their official capacity as representatives 23 of Kaiser and refrains from dismissing those claims at this time. 24 *** 25 In sum, the only causes of action remaining are claims 4–10 under § 1981, Title VII, 26 and the ADA. 27 /// 28 /// -2- 16cv195 1 III. The Motion to Add Defendants 2 Ellis also seeks to add another five defendants in their official capacity to the action. 3 Courts should freely give leave to amend. Fed. R. Civ. P. 15. But the Court needs more than 4 a list of five names. 5 If Ellis wants to file a second amended complaint that adds these parties, she needs 6 to file a new motion for leave to amend that complies with Local Civil Rule 15.1. At a 7 minimum, that means filing two versions of a proposed amended complaint: one version 8 that’s redlined to show the proposed changes; and, a second, clean version that Ellis wants 9 to become the new, operative complaint. The changes must address who each defendant 10 is, what they did, and why Ellis thinks she has a cause of action against them. 11 Before filing any new motion, Ellis should first do her best to research whether or not 12 the law allows her to state a valid claim against these proposed new defendants. The Court 13 also reminds Ellis that she needs to read and comply with the Federal Rules of Civil 14 Procedure, the Local Rules, and the Court’s Standing Order before filing future motions. 15 III. 16 To be clear: the Court isn’t saying that Ellis doesn’t have a case. The Court is troubled 17 by Ellis’s accusations that her supervisor interfered with Ellis’s pay while on maternity leave 18 whereas other “white nurse[s] had the comfort of paid leave.” As well as Ellis’s allegations 19 that white colleagues were given “verbal warnings for the same mislabeling specimen type 20 incidents” that Kaiser fired Ellis for. And the Court recognizes that Ellis’s struggles to battle 21 cancer, treat her heart arrhythmia, and overcome a miscarriage impacted her attendance at 22 work. But at this stage, Ellis’s accusations are still in dispute. Her motions for summary 23 judgment and to add additional defendants are denied. 24 25 Conclusion IT IS SO ORDERED. DATED: June 2, 2017 26 27 HONORABLE LARRY ALAN BURNS United States District Judge 28 -3- 16cv195

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