Hooks v. Venetian Palazzo Casino

Filing 15

ORDER Granting 11 Motion to Dismiss. Signed by Judge Kent J. Dawson on 7/18/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THEODORE HOOKS,
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Plaintiff,

Case No. 2:10-CV-01547-KJD-LRL

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v.

ORDER

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VENETIAN PALAZZO CASINO,
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Defendant.
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Before the Court is the Motion to Dismiss of Defendant Venetian Palazzo Casino (#11).
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Plaintiff filed an Opposition (#13) and Defendant filed a Reply (#11).
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I. Background
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Plaintiff, Theodore Hooks, filed a document styled “Civil Rights Complaint Pursuant to 42
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U.S.C. § 1983” against Venetian Palazzo Casino (the “Venetian”) on September 10, 2010 asserting
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violations of 42 USC § 1983 (“§ 1983”). The facts in the complaint appear to relate to Plaintiff’s
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employment as a security guard at the Venetian.
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II. Legal Standard for Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6), a court may dismiss a plaintiff’s complaint for “failure

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to state a claim upon which relief can be granted.” A properly pled complaint must provide “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require

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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation

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of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Papasan

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v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the

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speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint

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must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal,

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129 S. Ct. at 1949 (internal citation omitted).

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In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, the Court must accept as true all well-pled factual

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allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth.

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Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory

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statements, do not suffice. Id. at 1949. Second, the Court must consider whether the factual

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allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially

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plausible when the plaintiff’s complaint alleges facts that allow the court to draw a reasonable

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inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where the complaint

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does not permit the court to infer more than the mere possibility of misconduct, the complaint has

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“alleged—but not shown—that the pleader is entitled to relief.” Id. (internal quotation marks

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omitted). When the claims in a complaint have not crossed the line from conceivable to plausible,

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plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.

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Courts must liberally construe the pleadings of pro se parties. See United States v. Eatinger,

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902 F.2d 1383, 1385 (9th Cir. 1990). However, pro se litigants must supply a minimum factual basis

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for the claims they assert against defendants. Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th
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Cir. 1995). “ Even given the more generous pleading standards for pro se plaintiffs” a plaintiff must

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“provide [the] minimum factual basis needed to provide notice to [the] defendants.” Turner v.

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County of Los Angeles, 18 Fed.Appx. 592, 596 (9th Cir. 2001). A pro se complaint can be

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dismissed if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his

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claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520-521. (1972) (quoting

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Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

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III. Discussion

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A. § 1983 Claim

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To state a claim under Section 1983, “a plaintiff must allege the violation of a right secured

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by the Constitution and laws of the United States, and must show that the alleged deprivation was

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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); Ove

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v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001).

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Plaintiff’s complaint relates primarily to his employment at the Venetian and contains no

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allegations that the Venetian acted under color of law. The pleadings give no indication that Plaintiff

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can prove any set of facts that would entitle him to relief for this claim. He has failed to state a claim

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for relief under § 1983. Accordingly, Plaintiff’s § 1983 Claim is dismissed.

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B. Other Claims

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When read in the light of the liberal pleading standards applied to pro se plaintiffs, the

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complaint reveals facts that may support Title VII claims for race and sex-based discrimination and

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retaliation. These facts are sufficiently plead to put the Venetian on notice of “what it did wrong.”

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See Brazil, 66 F.3d at 199. However, in order for the Court to have subject matter jurisdiction over

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a Title VII claim, a plaintiff must exhaust his or her administrative remedies. See B.K.B. v. Maui

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Police Department, 276 F.3d 1091, 1099 (9th Cir. 2002). To exhaust administrative remedies, a

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plaintiff must timely file a charge with the EEOC or with the appropriate state agency, “thereby

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affording the agency an opportunity to investigate the charge.” Id.

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The complaint mentions that Plaintiff complained to the EEOC. However, there is no EEOC

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charge, right to sue letter, or any other indication that the Plaintiff has timely exhausted his

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administrative remedies. Since administrative remedies have not been exhausted, this Court cannot

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hear claims for employment discrimination or retaliation under Title VII. Accordingly, this Court

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lacks jurisdiction to provide Plaintiff with relief and dismissal is appropriate. See Fed. R. Civ. P.

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12(b)(1).

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VI. Conclusion

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Plaintiff’s complaint fails to state a claim for which this Court may grant relief under § 1983,
Title VII or any other cause of action.
Accordingly, IT IS HEREBY ORDERED, that Plaintiff’s Motion to Dismiss (#11) is
GRANTED.
DATED this 18th day of July 2011.

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_____________________________
Kent J. Dawson
United States District Judge

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