Hayes v. Nassco

Filing 9

ORDER: (1) Granting Second Motion to Proceed in Forma Pauperis; (2) Denying Second Motion for Appointment of Counsel; and (3) Dismissing First Amended Complaint for Failing to State a Claim. Plaintiff is granted thirty (30) days from the date of this Order to file a second amended complaint. Signed by Judge Roger T. Benitez on 2/14/2017.(All non-registered users served via U.S. Mail Service)(knb)

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1 fnLiD 2 t!7 FEB 15 WHI* 3S 3 4 06PUTY 5 nr. 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHASE HAYES, Case No.: 3:17-cv-00004-BEN-WVG Plaintiff, 12 13 v. 14 ORDER: NASSCO, (1) GRANTING SECOND MOTION TO PROCEED IN FORMA PAUPERIS; Defendant. 15 16 (2) DENYING SECOND MOTION FOR APPOINTMENT OF COUNSEL; 17 18 19 (3) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM 20 21 22 On January 30, 2017, Plaintiff Chase Hayes filed his second Motions to Proceed In 23 Forma Pauperis (“IFP”) and for Appointment of Counsel, along with his proposed First 24 Amended Complaint (“FAC”).1 (Docket No. 7.) For the reasons stated below, the 25 26 27 28 l On January 24, 2017, the Court denied Plaintiffs motion to proceed IFP for failing to demonstrate an inability to pay the filing fee, denied Plaintiffs motion for appointment of counsel for failing to demonstrate a likelihood of success on the merits of his claim, and l 3:17-cv-00004-BEN-WVG 1 second Motion to Proceed IFP is GRANTED, the second Motion for Appointment of 2 Counsel is DENIED, and the proposed First Amended Complaint is DISMISSED 3 without prejudice. 4 I. Motion to Proceed IFP All parties instituting any civil action in a district court must pay a filing fee. 28 5 6 U.S.C. § 1914(a). An action may proceed despite a plaintiffs failure to prepay the entire 7 fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). Under 28 U.S.C. § 1915(a)(1), 8 any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding ... without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 9 10 11 12 13 14 Plaintiffs second Motion to Proceed IFP indicates he receives $168.80 per week in 15 disability benefits, and $170.00 a month in the form of food stamps. (Docket No. 7 at 1.) 16 Plaintiff further indicates his expenses total approximately $800.00 per month. (Id.) 17 The Court finds Plaintiff has sufficiently stated that he cannot afford to pay the filing fee. 18 Therefore, the Motion is GRANTED, and Plaintiffs proposed First Amended Complaint 19 (docket no. 7) shall be deemed filed nunc pro tunc to the date of this Order. 20 II. Motion to Appoint Counsel 21 Plaintiff also filed a second Motion for Appointment of Counsel, in which he 22 asserts he has “no ability to articulate his claim in a legal manner” due to “the complexity 23 of the legal issues involved in Longshore and Harbor Workers Compensation Law, et al.” 24 (Docket No. 7 at 2.) 25 26 27 28 dismissed without prejudice his initial Complaint for failing to state a claim upon which relief may be granted. (Docket No. 6.) 2 3:17-cv-00004-BEN-WVG As the Court stated in its January 24, 2017 Order (docket no. 6), courts have 1 2 discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint counsel for indigent 3 civil litigants upon a showing of exceptional circumstances. “A finding of exceptional 4 circumstances requires an evaluation of both the likelihood of success on the merits and 5 the ability of the petitioner to articulate his claims pro se in light of the complexity of the 6 legal issues involved.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (internal 7 citations omitted). “Neither of these factors is dispositive and both must be viewed 8 together before reaching a decision.” Id. (internal citations omitted). The Court cannot say there is any likelihood of success on the merits of Plaintiff s 9 10 claims because, as will be explained in further detail below, Plaintiffs First Amended 11 Complaint fails to state a claim upon which relief may be granted. In addition, Plaintiff 12 does not demonstrate an inability to represent himself beyond the ordinary burdens 13 encountered by plaintiffs representing themselves pro se, or that he has even attempted to 14 obtain counsel to represent him. See Garcia v. Smith, No. 10-cv-l 187, 2012 WL 15 2499003, at *4 (S.D. Cal. June 27, 2012) (“Merely alleging indigence is insufficient to 16 entitle him to appointed counsel; he must also demonstrate that he made a good faith 17 effort, but was unable, to obtain counsel.”). Therefore, the Court finds that the 18 exceptional circumstances required for the appointment of counsel are not present.2 19 Plaintiffs Motion is DENIED. 20 III 21 III 22 III 23 24 25 26 27 28 2 The Court emphasizes that courts are directed to construe pro se pleadings liberally, and that use of layman’s language, on its own, will not prevent Plaintiff from proceeding with his claim. See Hebbe, supra, 627 F.3d at 342 (pro se plaintiffs complaint “must be held to less stringent standards than formal pleadings drafted by lawyers”) (internal citations omitted). 3 3:17-cv-00004-BEN-WVG 1 III. Section 1915 Screening 2 A. Legal Standard 3 Under section 1915(e) of title 28 of the United States Code, the Court must sua 4 sponte dismiss IFP complaints, or any portions thereof, which are frivolous, malicious, 5 fail to state a claim, or which seek damages from defendants who are immune. See Lopez 6 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 7 1915(e)(2)). “[T]he provisions of section 1915(e)(2)(B) are not limited to prisoners.” 8 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001). Every complaint must contain “a short and plain statement of the claim showing 9 10 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 11 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 12 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are 14 well-pleaded factual allegations, a court should assume their veracity, and then determine 15 whether they plausibly give rise to an entitlement to relief.” Id. at 679; see Barren v. 16 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that section 1915(e)(2) 17 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). “Determining 18 whether a complaint states a plausible claim for relief [is] ... a context-specific task that 19 requires the reviewing court to draw on its judicial experience and common sense.” 20 Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” falls short of meeting this 21 plausibility standard. Id.', see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 22 2009). 23 While a plaintiffs factual allegations are taken as true, courts “are not required to 24 indulge unwarranted inferences.” Doelv. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th 25 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an 26 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the 27 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 28 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.l 4 3:17-cv-00004-BEN-WVG 1 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 2 pled.” Ivey v. Bd. of Regents of the Univ. ofAlaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 B. Discussion 4 Plaintiffs First Amended Complaint (“FAC”) must be dismissed for failing to state 5 a claim upon which relief may be granted. 28 U.S.C. § 1915(e). In his FAC, Plaintiff alleges “NASSCO (Paul Goyette) laid Plaintiff off due to 6 7 Plaintiff injuries [sic],” even though Paul Goyette had allegedly promised him that “the 8 only way Plaintiff would be laid off is seniority if Plaintiff accept a light duty job [sic].” 9 (Docket No. 7 at 2.) However, Plaintiff does not identify who Paul Goyette is with 10 respect to Defendant NASSCO, Plaintiffs injuries, the date he became injured, or the 11 date he was laid off. Plaintiff further alleges he felt he was discriminated against under 12 Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with 13 Disabilities Act (“ADA”), but does explain how Defendant discriminated against him. 3 14 Plaintiff also asserts Defendant “is well aware of my race and disabilities which I can 15 only try to explain my meeting with them in layman’s terms.” However, Plaintiff does 16 not identify what his disabilities are, when Defendant became aware of those disabilities, 17 or the events that transpired in the referenced meeting. In sum, even after construing the documents liberally, the Court finds Plaintiff has 18 19 failed to state a claim for discrimination under either the Civil Rights Act or the ADA. 20 Plaintiffs FAC has not met the requirement to include “a short and plain statement of the 21 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 22 Moreover, a plaintiff litigating a Title VII claim in a federal district court is 23 required to exhaust his administrative remedies. Greenlaw v. Garrett, 59 F.3d 994, 997 24 (9th Cir. 1995) (citing Brown v. General Services Administration, 425 U.S. 820, 832 25 (1976)). This includes regulatory and judicially imposed exhaustion requirements. Id. 26 27 28 3 Plaintiff refers to, but did not attach, a “Right to Sue letter” which purportedly “show[s] the statue(s) [sic] which [he] felt [he] was discriminated under.” (Docket No. 7 at 2.) 5 3:17-cv-00004-BEN-WVG 1 The procedural requirements for Title VII actions are “neither interpreted too technically 2 nor applied too mechanically.” Id. (citing Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 3 1981) (internal citations omitted). 4 Generally, a Title VII complainant must file a complaint with the Equal 5 Employment Opportunity Commission (“EEOC”) within one hundred and eight (180) 6 days of the alleged violation. 29 C.F.R. § 1601.13(a)(1). If a complainant’s charges arise 7 in a jurisdiction that has a FEP agency, alternative procedures may apply. 29 C.F.R. § 8 1601.13(a)(3). An FEP agency is “a State or local agency which the Commission has 9 determined satisfies the criteria stated in section 706(c) of title VII.” 29 C.F.R. § 10 11 1601.3(a). Plaintiffs FAC indicates Plaintiff is suing his former employer for alleged 12 discriminatory conduct. (Docket No. 7 at 2.) Plaintiff did not state when the 13 discriminatory conduct occurred, or that Plaintiff filed a complaint with the EEOC within 14 one hundred and eighty (180) days of each of the alleged violations. 29 C.F.R. § 15 1601.13(a)(1). As a result, Plaintiff has failed to state a claim because he failed to 16 establish that he exhausted all of her administrative remedies, which is a prerequisite to 17 his title VII claims. Greenlaw, supra, 59 F.3d at 997 (9th Cir. 1995) (citations omitted). 18 Accordingly, the FAC is DISMISSED. However, the Court grants Plaintiff leave 19 to file a Second Amended Complaint that cures the deficiencies noted above.4 20 21 CONCLUSION Plaintiffs Motion to Proceed IFP is GRANTED. Plaintiffs Motion for 22 Appointment of Counsel is DENIED. Plaintiffs First Amended Complaint is deemed 23 filed nunc pro tunc to the date of this Order, and is concurrently DISMISSED without 24 25 26 4 The Court reminds Plaintiff that all that is required is a short and plain statement of 27 28 facts to establish his claim and an explanation of why he is entitled to relief. Fed. R. Civ. P. 8(a)(2). 6 3:17-cv-00004-BEN-WVG 1 prejudice for failing to state a claim. Plaintiff is granted thirty (30) days from the date 2 of this Order to file a second amended complaint that addresses the deficiencies identified 3 above. If Plaintiff does not timely file a second amended complaint, this action shall 4 remain closed without further Order of the Court. 5 IT IS SO ORDERED. 6 N. 7 8 DATED: February//, 2017 HONT _ BENfte United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:17-cv-00004-BEN-WVG

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