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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHA’LENA ELLIZABETHANN ELLIS,

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CASE NO. 16cv195-LAB (KSC)

Plaintiff,
vs.

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ORDER DENYING MOTION FOR
SUMMARY JUDGMENT

KAISER PERMANENTE, et al.,

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Defendants.
Pro se litigant Sha'lena Ellis sued Southern California Permanente Medical Group and

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her three supervisors (“Kaiser”) for, among other things, discrimination, retaliation, and

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wrongful termination when Kaiser fired her after ten years of employment. Kaiser says it fired

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Ellis because of her “chronic tardiness and a spate of errors in administering patient

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vaccines and submitting laboratory samples.” Ellis says Kaiser retaliated against her

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because she’s black, disabled, and was pregnant. Ellis moved for summary judgment on her

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14 claims under 42 U.S.C. §§ 1981 and 1983, Title VII, and the ADA.

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I.

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Summary judgment is appropriate where the moving party demonstrates that “there

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is no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Ellis hasn’t offered any argument, authority, or

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evidence that shows her claims are undisputed. The motion for summary judgment is

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denied.

Summary Judgment

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16cv195

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II.

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Last year, the Court granted Ellis’s motion for leave to proceed in forma pauperis.

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28 U.S.C. § 1915. The statute requires the Court to “dismiss the case at any time” if the

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action “fails to state a claim on which relief may be granted.” And the Court “may dismiss a

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claim sua sponte” when the party “cannot possibly win relief.” Omar v. Sea-Land Serv., Inc.,

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813 F.2d 986, 991 (9th Cir. 1987). Some of Ellis’s claims fall into this category.

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Dismissal

A.

The § 1983 Claims

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The Court dismisses all of Ellis’s § 1983 claims because Kaiser is a private

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employer—none of the defendants were acting “under color of state law” or engaged in state

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action. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982); Tate v. Kaiser Found. Hosps.,

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2014 WL 176625, at *4 (C.D. Cal. Jan. 15, 2014) (granting summary judgment on § 1983

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claims because Kaiser not a state actor). The Court dismisses claims 1–3 and 11–14 with

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prejudice.

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B.

The Title VII and ADA claims

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Ellis has no claims against her supervisors in their individual capacity under Title VII

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or the ADA. Walsh v. Nevada Dep't of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006). But

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Ellis can sue her supervisors in their official capacity as agents of Kaiser. Miller v. Maxwell's

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Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.

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1995) (“a supervisory employee may be joined as a party defendant in a Title VII action” but

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is “viewed as being sued in his capacity as the agent of the employer, who is alone liable”).

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Since Ellis is a pro se litigant, and Kaiser hasn’t moved to dismiss, the Court charitably

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interprets her complaint as suing her supervisors in their official capacity as representatives

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of Kaiser and refrains from dismissing those claims at this time.

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***

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In sum, the only causes of action remaining are claims 4–10 under § 1981, Title VII,

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and the ADA.

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III.

The Motion to Add Defendants

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Ellis also seeks to add another five defendants in their official capacity to the action.

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Courts should freely give leave to amend. Fed. R. Civ. P. 15. But the Court needs more than

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a list of five names.

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If Ellis wants to file a second amended complaint that adds these parties, she needs

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to file a new motion for leave to amend that complies with Local Civil Rule 15.1. At a

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minimum, that means filing two versions of a proposed amended complaint: one version

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that’s redlined to show the proposed changes; and, a second, clean version that Ellis wants

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to become the new, operative complaint. The changes must address who each defendant

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is, what they did, and why Ellis thinks she has a cause of action against them.

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Before filing any new motion, Ellis should first do her best to research whether or not

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the law allows her to state a valid claim against these proposed new defendants. The Court

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also reminds Ellis that she needs to read and comply with the Federal Rules of Civil

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Procedure, the Local Rules, and the Court’s Standing Order before filing future motions.

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III.

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To be clear: the Court isn’t saying that Ellis doesn’t have a case. The Court is troubled

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by Ellis’s accusations that her supervisor interfered with Ellis’s pay while on maternity leave

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whereas other “white nurse[s] had the comfort of paid leave.” As well as Ellis’s allegations

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that white colleagues were given “verbal warnings for the same mislabeling specimen type

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incidents” that Kaiser fired Ellis for. And the Court recognizes that Ellis’s struggles to battle

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cancer, treat her heart arrhythmia, and overcome a miscarriage impacted her attendance at

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work. But at this stage, Ellis’s accusations are still in dispute. Her motions for summary

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judgment and to add additional defendants are denied.

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Conclusion

IT IS SO ORDERED.
DATED: June 2, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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