Flores v. United States of America et al

Filing 6

ORDER (1) DISMISSING COMPLAINT; (2) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; AND (3) DENYING ALL OTHER PENDING MOTIONS. Signed by JUDGE DERRICK K. WATSON on 11/7/2016. -- The Complaint is DISMISS ED with leave to amend, the IFP Application is GRANTED (Dkt. No. 2 ), the Motion for A Lawyer isDENIED (Dkt. No. 3 ), and the Motion for Service is DENIED as moot (Dkt. No. 4 ). Flores is granted limited leave to file an amended complaint in acco rdance with the terms of this order by no later than November 30, 2016. The Court CAUTIONS Flores that failure to file an amended complaint by November 30, 2016 will result in the automatic dismissal of this action without prejudice. (ecs, )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 HAWAI‘I

CIVIL NO. 16-00579 DKW-KSC

XAVIER FLORES,
Plaintiff,

ORDER (1) DISMISSING
COMPLAINT; (2) GRANTING
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES OR COSTS; AND
(3) DENYING ALL OTHER
PENDING MOTIONS

vs.
UNITED STATES OF AMERICA;
AEROTEK; ALLEGIS GROUP
COMPANY; and CASEY THIGPEN,
Defendants.

ORDER (1) DISMISSING COMPLAINT; (2) GRANTING APPLICATION
TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS;
AND (3) DENYING ALL OTHER PENDING MOTIONS

INTRODUCTION
On October 27, 2016, Plaintiff Xavier Flores, proceeding pro se, filed a
Complaint, Application to proceed in forma pauperis (“IFP Application”), Motion
For A Lawyer, and Motion For Service. The Complaint attempts to assert claims
against the United States of America; Aerotek; Allegis Group Company; and Casey
Thigpen, a recruiter for Aerotek. Flores appears to challenge the employment
and/or hiring practices of Aerotek and Allegis under Title VII, the Americans with
1

Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”)
and the Rehabilitation Act. Because the Complaint fails to state a claim for relief
against any Defendant, the Court DISMISSES the Complaint and GRANTS Flores
limited leave to file an amended complaint in accordance with the terms of this order
by no later than November 30, 2016. The Court GRANTS the IFP Application and
DENIES his remaining motions, as discussed more fully below.1
DISCUSSION
Because Flores is appearing pro se, the Court liberally construes his filings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 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).
The Court notes that, although he is proceeding pro se, Flores is more than familiar

1

Pursuant to Local Rule 7.2(d), the Court finds these matters suitable for disposition without a
hearing.

2

with his federal court filing and pleading responsibilities, given his numerous prior
actions.2
DISCUSSION
I.

Plaintiff’s IFP Application Is Granted
Federal courts can authorize the commencement of any suit without

prepayment of fees or security by a person who submits an affidavit that
demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). “An affidavit in
support of an IFP application is sufficient where it alleges that the affiant cannot pay
the court costs and still afford the necessities of life.” Escobedo v. Applebees, 787
F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co.,
335 U.S. 331, 339 (1948)); see also United States v. McQuade, 647 F.2d 938, 940
(9th Cir. 1981) (The affidavit must “state the facts as to affiant’s poverty with some
particularity, definiteness and certainty.”) (internal quotation omitted).
When reviewing an application filed pursuant to § 1915(a), “[t]he only
determination to be made by the court . . . is whether the statements in the affidavit
satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d

2

Flores has filed several frivolous actions in this district within the past year, the majority of which
allege similar claims against the United States relating to his national security qualifications and
his “Tentative Work Agreement.” See, e.g., Civil Nos. 15-00408 DKW-RLP; 15-00515
DKW-RLP; 15-00538 HG-RLP; 16-00009 DKW-RLP; 16-00225 LEK-KJM; 16-00561
LEK-KSC; and 16-00573 DKW-KJM.

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1305, 1307 (11th Cir. 2004). While Section 1915(a) does not require a litigant to
demonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must
nonetheless show that he is “unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a).
Here, the IFP Application indicates that Flores is employed, earning $392.49
in take-home pay per two-week pay period. He also receives assistance in the form
of $170 in food stamps per month. Based on the IFP Application, Flores’ income
falls below the poverty threshold identified by the Department of Health and Human
Services (“HHS”) 2016 Poverty Guidelines. See 2016 HHS Poverty Guidelines,
available at https://www.federalregister.gov/articles/2016/01/25/2016
-01450/annual-update-of-the-hhs-poverty-guidelines. Accordingly, the Court
finds that Flores has made the required showing under Section 1915 to proceed
without prepayment of fees, and GRANTS his IFP Application.
II.

Plaintiff’s Complaint Is Dismissed With Limited Leave to Amend
Upon review of the Complaint, the Court finds that Flores fails to state a claim

upon which relief may be granted. As discussed below, even liberally construed,
the Complaint fails to state any discernible basis for judicial relief.
A.

Standard of Review

The Court subjects each civil action commenced pursuant to 28 U.S.C.
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§ 1915(a) to mandatory screening and can 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 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”). Because Flores is
appearing pro se, the Court liberally construes the Complaint.
The Court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted[.]”
A Rule 12(b)(6) dismissal is proper when there is either a “‘lack of a cognizable
legal theory or the absence of sufficient facts alleged.’” UMG Recordings, Inc. v.
Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff
must allege “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 that the
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court must accept as true all of the allegations contained in the complaint – “is
inapplicable to legal conclusions.” Iqbal, 556 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); see
also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a
complaint or counterclaim may not simply recite the elements of a cause of action,
but must contain sufficient allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.”).
“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.” Iqbal, 556 U.S. at 678 (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.
B.

The Complaint Fails To State A Claim For Relief

Based on the Court’s preliminary screening, it appears that Flores alleges
employment discrimination claims under federal law against the United States, two
related private entities (Aerotek and Allegis), and one individual (Thigpen). Even
given a liberal construction, the allegations in the Complaint fail to state any sort of
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discrimination claim against any defendant. As to each claim, the Complaint fails
to provide sufficient factual content to enable the Court to draw the reasonable
inference that any defendant is liable for the misconduct alleged.
Flores alleges as follows:
The United States of America has established a[n] Equal
Employment Commission which requires [sic] to obtain a Notice
of Right to Sue letter from the Equal Employment Opportunity
Commission. This is Against the Speedy Trial Act.
Aerotek recruiter Casey Thigpen has denied by resume thusly,
work opportunity with the company Aerotek – government
division because my resume does not provide a descriptive work
experience or aptitude Miss Thigpen stated that she cannot
present my resume to potential employer because it was written
in a format established by her company and potential employers.
I stated that most of my work has been deemed Classified: Top
Secret by the U.S. government and my current resume has
employer [sic] that are being used to denounce and counter any
misleading information regarding my mental condition or status.
Due to my work – presently, current, and future; this court Chief
Federal Judge J. Michael Seabright has access to my work
history. This court will then be able to determine my
“qualification” to any position within the work opportunity of
Aerotek.
Aerotek works as a branch, subsidiary of the Allegis Group
Company out of Hanover, Maryland. Wikipedia listed Allegis
Group Company as a private, Industry staffing and workforce
management headquartered in Hanover, Maryland, U.S., with
revenues of $16 million in 2016.

7

The business practice of Aerotek and Allegis Group Company
are both against Title VII of the Civil Right[s] act of 1964, the
Age Discrimination in Employment Act of 1967, Title I of the
American[s] With Disabilitites Act of 1990 and Section 501 and
505 of the Rehabilitation Act of 1973.
As a relief, the U.S. government will readjust their policies of
EEO policies. They will assist to determine Aerotek – Casey
Thigpen with “qualified” position within their listed employers
and potential employers.
The U.S., Xavier Flores and Aerotek will compose a
compensation, means, work schedule, in accordance to a “good
faith” between employee and employer with terms that adhere to
Xavier Flores[’] Tentative Work Agreement with the U.S.
Government.
For the record, Aerotek and Allegis Group Company should not
have a position that I will not have available to obtain. My
overall performance rate is over at 95 percentile. This means
that any job assignment I get, I will improve, manage
administrate, develop[] more than 50 percent of its current
capacity. This is accomplished in large part from my public
school (New York City) High School education and life work
experience.
Complaint at 4-5.
The Complaint suffers from several deficiencies. First, to the extent he
attempts to allege Title VII and ADA violations against any Defendant, Flores fails
to state a claim and has not established that he even attempted to exhaust his
administrative remedies before filing the instant civil action. Title VII of the Civil
Rights Act of 1964 and Title I of the ADA “contain[] the identical requirements for
8

filing an administrative charge of discrimination[.]” See Sumner v. Sacred Heart
Medical Center, 2005 WL 2415969, at *2 (E.D. Wash. Sept. 30, 2005) (citations
omitted); 42 U.S.C. § 2000e; see also B.K.B. v. Maui Police Department, 276 F.3d
1091, 1099 (9th Cir. 2002); Leorna v. United States Department of State, 105 F.3d
548, 550 (9th Cir. 1997). Under both statutes, a plaintiff exhausts his
administrative remedies by timely filing a charge with the EEOC or the appropriate
state agency within the statutorily prescribed time limits. The purpose of the
exhaustion requirement is twofold: to give notice of the alleged violation so as to
allow the agency to fix the problem if applicable, and to give the EEOC and/or
agency a chance to investigate and possibly informally resolve the claim. Sager v.
McHugh, 942 F. Supp. 2d 1137, 1142 (W.D. Wash. 2013); see also Ong v. Cleland,
642 F.2d 316, 318–20 (9th Cir. 1981).3 Where a plaintiff, for instance, does not
timely file such a charge, the Court lacks subject matter jurisdiction to consider

3

The EEOC has promulgated regulations governing the acceptance and processing of
discrimination complaints in federal employment cases. See 29 C.F.R. §§ 1614.104–1614.110
(detailing administrative processing of federal Title VII complaints). Time limitations such as
those found in Title VII “are not arbitrary obstacles to the vindication of just claims, and therefore
they should not be given a grudging application. They protect important social interests in
certainty, accuracy, and repose.” Sager, 942 F. Supp. 2d at 1142 (citing Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 45253 (7th Cir. 1990)). These rules are not mere technicalities,
but integral parts of the statutory scheme of achieving a “careful blend of administrative and
judicial enforcement powers.” Brown v. General Services Administration, 425 U.S. 820, 833
(1976).

9

claims brought pursuant to Title I of the ADA. Sumner, 2005 WL 2415969, at *2.4
Accordingly, Flores fails to establish that he exhausted his administrative remedies
as a prerequisite generally necessary to establish the Court’s jurisdiction.
Second, Title VII of the Civil Rights Act of 1964 prohibits employment
discrimination based on race, color, religion, sex or national origin. 42 U.S.C. §
2000e et seq. The Complaint does not allege that any Defendant either
discriminated or retaliated against Flores on the basis of any of these protected
classifications.
Third, to the extent Flores seeks relief under Title I of the ADA, he likewise
fails to allege facts supporting the elements of a claim. “To state a prima facie case
for discrimination under [Title I] of the ADA, [plaintiff] must prove that he is a
qualified individual with a disability who suffered an adverse employment action
because of his disability.” Zivkovic v. Southern California Edison Co., 302 F.3d
1080, 1090 (9th Cir. 2004) (quotation marks and citation omitted). Flores has not

4

The Rehabilitation Act serves as the exclusive remedy for discrimination in employment on the
basis of disability by federal agencies. See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir.
1985). In its original form, Section 501 did not contain a private right of action. In 1978,
Congress added a private right of action by adopting Section 505(a)(1), codified at 29 U.S.C.
§ 794a(a)(1), which provided that the rights and remedies of Title VII claims are available to
plaintiffs claiming discrimination on account of their disabilities. The incorporation of the rights
and remedies of Title VII brought with it a corresponding requirement that a federal employee
plaintiff exhaust administrative remedies prior to proceeding. See Boyd, 752 F.2d at 412–14.

10

alleged that he is an individual with a disability within the meaning of that Act. See
Allen v. Pacific Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (citation omitted) (“[T]o
establish a prima facie case [of employment discrimination] under the . . . ADA . . . ,
[plaintiff] must first demonstrate that . . . he is disabled[.]”).
For similar reasons, to the extent he invokes the Rehabilitation Act (“Rehab
Act”), Flores likewise fails to state a plausible claim for relief. The liability
standards under the ADA are incorporated into the Rehab Act. See 29 U.S.C.
§ 791(g); Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007);
McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000). To set forth a prima facie
disability discrimination claim under the Rehab Act, Flores must show that (1) he is
disabled, (2) he is otherwise qualified (with or without reasonable accommodation)
to perform the essential functions of the job, and (3) he was discriminated against
solely due to his disability. See Mustafa v. Clark County Sch. Dist., 157 F.3d 1169,
1174 (9th Cir. 1998). Again, Flores has not alleged facts supporting any of these
elements.
Finally, with respect to his invocation of the ADEA, Flores fails to allege the
required elements. The ADEA makes it unlawful “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
11

because of such individual’s age.” 29 U.S.C. § 623(a)(1). The prohibition is
“limited to individuals who are at least 40 years of age.” 29 U.S.C. § 631(a). A
plaintiff may establish a prima facie case of discrimination in violation of the ADEA
by alleging that he was (1) at least forty years old, (2) qualified for the position for
which an application was submitted, (3) denied the position, and (4) the position was
given to a substantially younger person. See Shelley v. Geren, 666 F.3d 599, 608
(9th Cir. 2012). The Court sees no allegations that address any of these elements.
Consequently, Flores fails to state a claim for relief under the ADEA.5
Because Flores fails to state a plausible claim under any of the theories
alleged, the Complaint is DISMISSED. Because amendment may be possible,
dismissal is with leave to amend, as detailed below.
III.

The Remaining Motions Are Denied
With respect to Flores’ request for the appointment of counsel (Dkt. No. 3),

the Court, in its discretion, “may appoint counsel . . . only under ‘exceptional
circumstances.’” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see also
Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). “A finding of
5

Unlike Title VII, the ADEA contains no express requirement that a federal employee complainant
seek administrative relief, except that an employee who wishes to file suit without pursuing
administrative remedies must give the EEOC notice of intent to sue at least 30 days before filing
suit. See 29 U.S.C. § 633a(d)(allowing individual to file suit without filing EEOC complaint but
requiring notice to EEOC of intent to sue). See Bankston v. White, 345 F.3d 768, 770 (9th Cir.
2003).

12

exceptional circumstances requires an evaluation of both the likelihood of success
on the merits [and] the ability of the petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 (citation
omitted). Neither factor is dispositive and both must be viewed together before
reaching a decision on a request for counsel. Id. In most cases, however, the
Court cannot expend public resources to provide plaintiffs with counsel. See
McCue v. Food Pantry, Ltd., 2008 WL 852018, at *3 (D. Haw. Mar. 28, 2008). The
present action does not support the appointment of counsel. As noted above, the
Complaint lacks plausibility and is unlikely to succeed on the merits as currently
alleged. The current Complaint not only fails to state a claim, but fails to establish
prerequisites to this Court’s jurisdiction, in light of the failure to exhaust
administrative remedies. At this preliminary stage, the Court is not able to
adequately evaluate the ability of Flores to articulate his claims pro se, beyond his
apparent ability to read, write and access the courts repeatedly. Moreover, there is
no presumptive right to appointed counsel in civil proceedings that do not threaten a
litigant with loss of physical liberty, and no such threat is presented in this case.
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26-27 (1981). Accordingly, because
“exceptional circumstances” do not exist here, the request for the appointment of
counsel is DENIED without prejudice.
13

In light of the absence of a pending complaint, the Court DENIES as moot
Flores’ Motion for Service (Dkt. No. 4). In the event that Flores files an amended
complaint in accordance with this order, the Court will revisit his request for service
by the U.S. Marshal, as needed.
IV.

Leave to Amend
The dismissal of the Complaint is without prejudice, and Flores is granted

leave to amend to attempt to cure the deficiencies identified above. If Flores
chooses to file an amended complaint, he must write short, plain statements telling
the Court: (1) the specific basis of this Court’s jurisdiction; (2) the constitutional or
statutory right Plaintiff believes was violated; (3) the name of the defendant who
violated that right; (4) exactly what that defendant did or failed to do; (5) how the
action or inaction of that defendant is connected to the violation of Plaintiff’s rights;
and (6) what specific injury Plaintiff suffered because of that defendant’s conduct.
Plaintiff must repeat this process for each person or entity that he names as a
defendant. If Plaintiff fails to affirmatively link the conduct of each named
defendant with the specific injury he suffered, the allegation against that defendant
will be dismissed for failure to state a claim.
An amended complaint generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded pleading. King v.
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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). Claims dismissed without prejudice
that are not re-alleged in an amended complaint may be deemed voluntarily
dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with prejudice
need not be realleged in an amended complaint to preserve them for appeal, but
claims that are voluntarily dismissed are considered waived if they are not re-pled).
The amended complaint must designate that it is the “First Amended
Complaint” and may not incorporate any part of the original Complaint. Rather,
any specific allegations must be retyped or rewritten in their entirety. Plaintiff may
include only one claim per count. Failure to file an amended complaint by
November 30, 2016 will result in the automatic dismissal of this action without
prejudice.
CONCLUSION
Based upon the foregoing, the Complaint is DISMISSED with leave to
amend, the IFP Application is GRANTED (Dkt. No. 2), the Motion for A Lawyer is
DENIED (Dkt. No. 3), and the Motion for Service is DENIED as moot (Dkt. No. 4).
Flores is granted limited leave to file an amended complaint in accordance
with the terms of this order by no later than November 30, 2016. The Court

15

CAUTIONS Flores that failure to file an amended complaint by November 30,
2016 will result in the automatic dismissal of this action without prejudice.
IT IS SO ORDERED.
Dated: November 7, 2016 at Honolulu, Hawai‘i.

Flores v. United States, et al.; Civil No. 16-00579 DKW-KSC;
ORDER (1) DISMISSING COMPLAINT; (2) GRANTING APPLICATION
TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; AND
(3) DENYING ALL OTHER PENDING MOTIONS

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