Carrouthers v. Pepsi Bottling Group, Inc.

Filing 8

ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS 2 ; AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by JUDGE J. MICHAEL SEABRIGHT on 6/17/2014. ~ Plaintiff is granted until July 11, 2014 to file an Amended Complaint ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIE S. CARROUTHERS,

)
)
Plaintiff,
)
)
vs.
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PEPSI BOTTLING GROUP INC.,
)
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Defendant.
)
_______________________________ )

CIV. NO. 14-00262 JMS-KSC
ORDER (1) GRANTING
APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR
COSTS; AND (2) DISMISSING
COMPLAINT WITH LEAVE TO
AMEND

ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYING FEES OR COSTS; AND (2) DISMISSING COMPLAINT
WITH LEAVE TO AMEND
I. INTRODUCTION
On June 4, 2014, Plaintiff Willie S. Carrouthers (“Plaintiff”),
proceeding pro se, filed a Complaint alleging that his former employer, Pepsi
Bottling Group Inc. (“Defendant”), violated Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), when it terminated Plaintiff based
on his race, color and/or national origin. That same day, Plaintiff also filed an
Application to Proceed Without Prepaying Fees or Costs (“Application”). Doc.
No. 2. Based on the following, the court: (1) GRANTS the Application; and
(2) DISMISSES the Complaint with leave to amend.1
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Pursuant to Local Rule 7.2(d), the court finds this matter suitable for dispostion without
a hearing.

II. DISCUSSION
A.

Plaintiff’s Application Is Granted
Plaintiff’s Application indicates that he makes $805 every two weeks

working at Roberts Hawaii Inc., makes $500 a month cleaning houses, and has
$1,500 in a bank account. Doc. No. 2 ¶¶ 2-4. Plaintiff also has monthly bills,
excluding basic living expenses such as food, totaling $2,200. Id. ¶ 6. Because
Plaintiff has made the required showing under 28 U.S.C. § 1915 to proceed in
forma pauperis (i.e., without prepayment of fees), the court GRANTS Plaintiff’s
Application.
B.

Plaintiff’s Complaint Is Dismissed
1.

Standards of Review
The court must subject each civil action commenced pursuant to 28

U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it
finds “frivolous, malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the
court to sua sponte dismiss an in forma pauperis complaint that fails to state a

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claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).
Plaintiff is appearing pro se; consequently, the court liberally
construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se
litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
The court also recognizes that “[u]nless it is absolutely clear that no amendment
can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas
v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister,
734 F.3d 967, 977-78 (9th Cir. 2013).
Nevertheless, the court may dismiss a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) if it fails to “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065
(9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations
contained in the complaint -- “is inapplicable to legal conclusions.” Iqbal, 556
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U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 1949
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to
infer “the mere possibility of misconduct” do not show that the pleader is entitled
to relief as required by Rule 8. Id. at 679.
A complaint must also meet the requirements of Federal Rule of Civil
Procedure 8, mandating that a complaint include a “short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1). A district court may dismiss a complaint for
failure to comply with Rule 8 where it fails to provide the defendant fair notice of
the wrongs allegedly committed. See McHenry v. Renne, 84 F.3d 1172, 1178-80
(9th Cir. 1996) (affirming dismissal of complaint where “one cannot determine
from the complaint who is being sued, for what relief, and on what theory, with
enough detail to guide discovery”); cf. Mendiondo v. Centinela Hosp. Med. Ctr.,
521 F.3d 1097, 1105 n.4 (9th Cir. 2008) (finding dismissal under Rule 8 was in
error where “the complaint provide[d] fair notice of the wrongs allegedly
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committed by defendants and [did] not qualify as overly verbose, confusing, or
rambling”). Rule 8 requires more than “the-defendant-unlawfully-harmed-me
accusation[s]” and “[a] pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678
(citations and quotations omitted). “Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.” Id. (quotation signals
omitted). “The propriety of dismissal for failure to comply with Rule 8 does not
depend on whether the complaint is wholly without merit.” McHenry, 84 F.3d at
1179.
2.

Application to the Complaint’s Allegations
Title VII makes it an unlawful employment practice for an employer

“to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2. In support of Plaintiff’s Title VII claim, the Complaint alleges:
Pepsico stopped my workmans comp after one
year, denied my wages, then terminated my employment
while I was still under doctors care, and had not been
release[d] to return to full time work; however I was
released with restrictions, Pepsi gave me a letter saying
that, they could no longer accomdate [sic] restrictions.
Not only were other employees allowed to return
to work after doctors release, but they were out longer
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than myself. Since 2007 [there] has been other []
violations, that I was unawares of the limitations for
filing. I believe if the court takes a look at the history of
minoritys [sic] at this Pepsi facility it will find people in
fault. After three months of restrictions of work, I was
ask[ed] to do an[] IME, and other test.
Doc. No. 1, Compl. ¶¶ 4, 6.
These allegations are too conclusory to allege a plausible Title VII
claim, and therefore fail to pass scrutiny under Rules 8 and 12(b)(6). As an initial
matter, although Plaintiff checked the boxes on his Employment Discrimination
Complaint form that he was discriminated against with respect to his race or color
and national origin, nowhere in the Complaint does Plaintiff allege his race, color,
and/or national origin. Further, the allegations regarding discrimination are
entirely vague -- nowhere does Plaintiff describe in any manner his employment
with Defendant, the nature of his medical leave from work, how his medical leave
affected his ability to work for Defendant (whether Plaintiff was seeking to return
to work with restrictions, etc.), and how Defendant’s treatment of Plaintiff differed
from other employees who do not share Plaintiff’s race or color or national origin
and who were also on medical leave. The court therefore DISMISSES the
Complaint.2
2

Although Plaintiff asserts that he was discriminated against based on his race, color,
and/or national origin, the court cannot discern whether Plaintiff is also asserting a claim under
the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq. The ADA prohibits
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This dismissal is without prejudice -- “[u]nless it is absolutely clear
that no amendment can cure the defect . . . , a pro se litigant is entitled to notice of
the complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Lopez
v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). If Plaintiff chooses to file
an Amended Complaint, he must do the following:
(1)

He must clearly state how and when Defendant discriminated against
him, as required by Federal Rule of Civil Procedure 8. In other
words, Plaintiff should allege facts explaining what it is that
Defendant did to him and how that amounts to discrimination; and

(2)

He must clearly state what relief is being sought. In other words, if
Plaintiff submits an Amended Complaint, he must explain what he
would like the court to do.

an employer from discriminating “against a qualified individual on the basis of disability.” 42
U.S.C. § 12112(a). Under the ADA, a plaintiff must show that he suffers from a disability, that
he was able to perform the essential functions of the job with or without reasonable
accommodation, and that he was subject to adverse employment action because of his disability.
See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). The ADA
defines “disability” as: “(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). “[M]ajor life
activities include, but are not limited to, caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A). If Plaintiff
is in fact asserting a claim pursuant to the ADA, he must allege sufficient plausible facts
describing the basis of such claim.
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In sum, the court DISMISSES the Complaint WITHOUT
PREJUDICE. This dismissal means that Plaintiff is granted leave to file an
Amended Complaint correcting, if possible, the deficiencies described above.
III. CONCLUSION
For the reasons stated above, the court GRANTS Plaintiff’s
Application, and DISMISSES the Complaint with leave to amend. Plaintiff is
granted until July 11, 2014 to file an Amended Complaint. An Amended
Complaint will supercede the Complaint and must be complete in itself without
reference to prior superceded pleadings. E.g., King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987), overruled in part by Lacey v. Maricopa Cnty., 693 F.3d 896 (9th
Cir. 2012) (en banc)). The Amended Complaint must designate that it is the
“Amended Complaint,” and must be retyped or rewritten in its entirety -- it may
not incorporate any part of the original Complaint by reference. Ferdik v.
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Bonzelet, 963 F.2d 1258 (9th Cir. 1992). Failure to file an Amended Complaint by
July 11, 2014 will result in automatic dismissal of this action without prejudice.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 17, 2014.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Carrouthers v. Pepsi Bottling Grp., Civ. No. 14-00262 JMS-KSC, Order (1) Granting
Application to Proceed Without Prepaying Fees or Costs; and (2) Dismissing Complaint with
Leave to Amend

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