Rusthoven v. Victor School District #7
Filing
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ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Clinton Rusthoven, FINDINGS AND RECOMMENDATIONS re 2 Complaint IFP/Prisoner filed by Clinton Rusthoven, Order Setting: (, Amended Pleadings due by 9/26/2014.), Motions terminated: 1 MOTION for Leave to Proceed in forma pauperis filed by Clinton Rusthoven. Signed by Magistrate Judge Jeremiah C. Lynch on 8/28/2014. (TCL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CLINTON RUSTHOVEN,
CV 14-170-M-DLC-JCL
Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION
vs.
VICTOR SCHOOL DISTRICT, #7,
Defendant.
I.
INTRODUCTION
Plaintiff Clinton Rusthoven, proceeding pro se, filed a motion requesting
leave to proceed in forma pauperis. He submitted a declaration that makes the
showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient
funds to prosecute this action IT IS HEREBY ORDERED that Rusthoven’s
motion to proceed in forma pauperis is GRANTED. This action may proceed
without prepayment of the filing fee, and the Clerk of Court is directed to file
Rusthoven’s lodged Complaint as of the filing date of his request to proceed in
forma pauperis.
The federal statute under which leave to proceed in forma pauperis is
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permitted — 28 U.S.C. § 1915 — also requires the Court to conduct a preliminary
screening of the allegations set forth in the litigant’s pleading. The applicable
provisions of section 1915(e)(2) state as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
that–
(A) the allegation of poverty is untrue; or
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
The Court will review Rusthoven’s pleading to consider whether this action
can survive dismissal under the provisions of section 1915(e)(2), or any other
provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th
Cir. 2005).
II.
PLAINTIFF’S ALLEGATIONS
This action emanates from Rusthoven’s application for employment as a
substitute teacher with Defendant Victor School District (“District”). Rusthoven
alleges that on September 18, 2013, the District “toyed” with him with respect to
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the hiring process and its identification of the proper department to which he was
to submit his application. After Rusthoven submitted his application, the District
apparently told him it would have an outside agency conduct a necessary
background check, and would forward Rusthoven’s payment for the background
check to the agency. But Rusthoven later discovered the District did not request
the background check. Rusthoven states he inquired with the Montana
Department of Justice and confirmed the District’s “dishonesty” towards him
regarding his background check. As a result, Rusthoven contacted the Ravalli
County Sheriff’s office to report his missing personal information – information
that was apparently contained within his application and background check
submission.
Rusthoven asserts he suffered six weeks of humiliation as a result of the
District’s conduct which ultimately forced him to move out of Ravalli County.
Rusthoven purports to advance legal claims for relief under (1) Title VII of
the Civil Rights Act of 1964 (Title VII), (2) Title I of the Americans with
Disabilities Act (ADA), and (3) the Genetic Information Nondiscrimination Act of
2008 (GINA). Rusthoven requests an award of compensatory and punitive
damages.
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III.
DISCUSSION
Because Rusthoven is proceeding pro se the Court must construe his
pleading liberally, and the pleading is held “to less stringent standards than formal
pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). See
also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has
authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2),
a district court should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading could not possibly
be cured by the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995)).
The allegations of Rusthoven’s Complaint expressly identify Title VII, the
ADA, and GINA as the legal authority for his claims. Although Rusthoven does
not describe the nature of his claims, based on the circumstances of his factual
allegations the Court will presume that he is attempting to allege that the District
discriminated against him.
Title I of the ADA prohibits discrimination “against a qualified individual
on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment.” 42 U.S.C. §
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12112(a). To prevail on a Title I claim a plaintiff must allege and prove “(1) he is
a disabled person within the meaning of the statute; (2) he is a qualified individual
with a disability; and (3) he suffered an adverse employment action because of his
disability.” Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 891 (9th Cir.
2001) (citations omitted).
Similarly, Title VII of the Civil Rights Act also recognizes legal claims for
relief for discrimination. To plead a claim for discrimination under Title VII a
plaintiff must allege facts showing the plaintiff: (1) is a member of a protected
class; (2) was qualified for the employment position; (3) experienced an adverse
employment action; and additional facts showing that (4) “similarly situated
individuals outside [the] protected class were treated more favorably, or other
circumstances surrounding the adverse employment action give rise to an
inference of discrimination.” Hawn v. Executive Jet Management, Inc., 615 F.3d
1151, 1156 (9th Cir. 2010) (quoting Peterson v. Hewlett-Packard Co., 358 F.3d
599, 603 (9th Cir. 2004).
Finally, GINA prohibits discriminatory employment practices that are based
on an individual’s genetic information. Specifically, it is unlawful for an
employer “to fail or refuse to hire, or to discharge, any employee, [or otherwise
discriminate against an employee] because of genetic information with respect to
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the employee[.]” 42 U.S.C. § 2000ff-1(a)(1). Additionally, GINA prohibits an
employer from disclosing an employee’s genetic information to others except in
limited circumstances. 42 U.S.C. § 2000ff-5(b). GINA provides an employee
with the same civil remedies available under Title VII of the Civil Rights Act of
1964. 42 U.S.C. § 2000ff-6(a).
Upon review of Rusthoven’s allegations, the Court finds his Complaint is
deficient with respect to the facts that must be pled to support his legal claims. He
does not set forth facts identifying or describing any alleged disability he may
have, or facts plausibly suggesting he is a disabled person within the meaning of
the ADA. His allegations also do not present facts suggesting he is a member of a
class of persons protected under Title VII of the Civil Rights Act.
Additionally, Rusthoven’s allegations do not factually describe and
plausibly suggest that the District actually made or committed any adverse
employment decision or action against him. His allegations omit facts describing
what ultimately transpired between Rusthoven and the District. He does not state
whether the District offered him a job, whether it rejected his job application, or
whether he elected not to pursue the job application any further. His pleading is
void of any information plausibly suggesting that the District took any actual
adverse action towards him with respect to his job application and his opportunity
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to be hired.
Finally, Rusthoven’s factual allegations also do not describe or identify
specific acts or omissions of the District which he contends constitute a violation
of GINA. Rusthoven does not indicate whether he contends the District
discriminated against him based on his genetic information, whether the District
unlawfully disclosed his genetic information, or perhaps both. Rusthoven must
plead facts in his allegations which state a claim for relief under GINA.
Although a court must liberally construe a pro se litigant’s allegations, the
courts need not read into allegations the necessary elements of a federal claim that
simply are not pled by the litigant. “While we are mindful of the generous
pleading standards that apply to civil rights plaintiffs, ‘a liberal interpretation of a
... civil rights complaint may not supply essential elements of the claim that were
not initially pled.’” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th
Cir. 2011) (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (quoting
Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982))).1
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The Court further notes that before proceeding in federal court Rusthoven
must first exhaust his administrative remedies available through the federal Equal
Employment Opportunities Commission. See Duncan v. Rio Suite Hotel &
Casino, 2012 WL 5818125, *4 (D. Nev. 2012) (addressing Title VII, ADA, and
GINA claims). The exhaustion requirement applies to Title VII claims (Lyons v.
England, 307 F.3d 1092, 1103 (9th Cir. 2002) and 42 U.S.C. § 2000e-5(b)), ADA
claims (Josephs v. Pacific Bell, 443 F.3d 1050, 1061 (9th Cir. 2006) and 42 U.S.C.
§ 12117), and claims under GINA (42 U.S.C. § 2000ff-6 and 29 C.F.R. §
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Based on the foregoing, the Court finds that Rusthoven’s allegations in his
Complaint are factually deficient, and fail to state any claim for relief. Therefore,
his pleading is subject to dismissal.
IV.
CONCLUSION
Although Rusthoven’s Complaint, as presently pled, is subject to dismissal,
the dismissal must be without prejudice. Ordinarily, “[d]ismissal of a pro se
complaint without leave to amend is proper only if it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment.” Weilburg v.
Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (quoting Schucker v. Rockwood, 846
F.2d 1202, 1203-04 (9th Cir. 1988)). Under the circumstances, that Court cannot
conclude that Rusthoven would be unable to cure the factual deficiencies in his
Complaint by filing an amended pleading.
Therefore, IT IS RECOMMENDED that Rusthoven’s Complaint be
DISMISSED without prejudice.
In view of Rusthoven’s pro se status, the Court will afford him an
opportunity to amend his allegations to cure the factual defects noted in this
1635.10). Although the exhaustion requirement is not a jurisdictional issue (Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)), it is a condition
precedent to proceeding in federal court which a defendant can waive. A failure to
exhaust could subject a pleading to dismissal under Fed. R. Civ. P. 12(b)(6) and
28 U.S.C. § 1915(e)(2)(B)(ii).
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ruling. The Clerk of Court is directed to provide him with a complaint form for
filing an amended complaint.
Therefore, IT IS ORDERED that on or before September 26, 2014,
Rusthoven shall file an amended complaint. Pursuant to Fed. R. Civ. P. 8(a),
Rusthoven’s amended complaint need only set forth a short and plain statement of
his claims against the District showing that he is entitled to relief. But his
allegations must include all of the facts necessary to support all of the elements of
his legal claims.
At all times during the pendency of this action, Rusthoven shall
immediately advise the Court of any change of address and its effective date.
Such notice shall be captioned “NOTICE OF CHANGE OF ADDRESS.” Failure
to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the
action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b), or for failure to
state a claim for relief.
Rusthoven is advised that his failure to prosecute this action, to comply with
the Court’s orders, or to comply with the Federal Rules of Civil Procedure may
also result in a recommendation that this case be dismissed with prejudice
pursuant to Fed. R. Civ. P. 41(b). The Court may dismiss this case under Rule
41(b) sua sponte under certain circumstances. See, e.g., Link v. Wabash Railroad
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Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United
States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
DATED this 28th day of August, 2014.
Jeremiah C. Lynch
United States Magistrate Judge
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