Barbieri v. Wynn/Las Vegas

Filing 17

ORDER ORDER that the Clerk of the Court shall file the 16 Fourth Amended Complaint and shall issue Summons to Defendant and deliver the same to the U.S. Marshal for service. Signed by Magistrate Judge Carl W. Hoffman on 1/29/2013. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6
7
8
9
10
11

ANTHONY RUBEN ALDO BARBIERI,

)
)
Plaintiff,
)
)
vs.
)
)
WYNN/LAS VEGAS,
)
)
Defendant.
)
____________________________________)

Case No. 2:12-cv-00429-MMD-CWH
ORDER

12
This matter is before the Court on Plaintiff’s Amended Complaint (#16), filed on January
13
15, 2013.
14
BACKGROUND
15
On March 14, 2012, Plaintiff filed an Application for Leave to Proceed in Forma
16
Pauperis (#1). On November 8, 2012, the Court granted Plaintiff’s Application to Proceed in
17
Forma Pauperis and ordered the Clerk of the Court to file Plaintiff’s Complaint. See Order #7.
18
In addition, the Court ordered that the Complaint be dismissed without prejudice and granted
19
Plaintiff thirty (30) days to file an amended complaint correcting the noted deficiencies. On
20
December 17, 2012 and December 18, 2012, Plaintiff filed Amended Complaints #12-13, which
21
the Court ordered dismissed without prejudice. See Order #14. Plaintiff was given thirty (30)
22
days to file another amended complaint correcting the noted deficiencies. On January 15, 2013,
23
Plaintiff filed his Fourth Amended Complaint (#16), which the Court will now screen.
24
DISCUSSION
25
I.

Screening the Amended Complaint

26
Upon granting a request to proceed in forma pauperis, a court must additionally screen a
27
complaint pursuant to § 1915(a). Specifically, federal courts are given the authority dismiss a
28
case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief may

1

be granted, or seeks monetary relief from a defendant who is immune from such relief. 28

2

U.S.C. § 1915(e)(2). A complaint may be dismissed as frivolous if it is premised on a

3

nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-

4

28 (1989). Moreover, “a finding of factual frivolousness is appropriate when the facts alleged

5

rise to the level of the irrational or wholly incredible, whether or not there are judicially

6

noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).

7

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a

8

complaint for failure to state a claim upon which relief can be granted. A complaint should be

9

dismissed under Rule 12(b)(6) “if it appears beyond a doubt that the plaintiff can prove no set of

10

facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d

11

791, 794 (9th Cir. 1992). Review under Rule 12(b)(6) is essentially a ruling on a question of law.

12

See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000).

13

A properly pled complaint must provide a short and plain statement of the claim showing

14

that the pleader is entitled to relief.” Fed.. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombley,

15

550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it

16

demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause

17

of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265,

18

286 (1986)). The court must accept as true all well-pled factual allegations contained in the

19

complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679.

20

Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do

21

not suffice. Id. at 678. Allegations of a pro se complaint are held to less stringent standards than

22

formal pleading drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium).

23

When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to

24

amend the complaint with directions as to curing its deficiencies, unless it is clear from the face

25

of the complaint that the deficiencies could not be cured by amendment. See Cato v. United

26

States, 70 F.3d 1103, 1106 (9th Cir. 1995).

27
28

The Court cannot refer to a prior pleading in order to make an amended complaint
complete. Local Rule 15-1 requires that an amended complaint be complete in itself without
2

1

reference to any prior pleading. This is because, as a general rule, an amended complaint

2

supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

3

plaintiff files an amended complaint, the original pleading no longer serves any function in this

4

case. Therefore, in an amended complaint, each claim and the involvement of the defendant

5

must be sufficiently alleged.

6

A.

7

Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil

Diversity Jurisdiction

8

actions in diversity cases “where the matter in controversy exceeds the sum or value of $75,000”

9

and where the matter is between “citizens of different states.” Plaintiff and the Defendants

10

appear to be Nevada citizens so there is no diversity jurisdiction in this case.

11

B.

12

As a general matter, federal courts are courts of limited jurisdiction and possess only that

Federal Question Jurisdiction

13

power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004).

14

Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over “all civil

15

actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises

16

under’ federal law either where federal law creates the cause of action or ‘where the vindication

17

of a right under state law necessarily turn[s] on some construction of federal law.’” Republican

18

Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd.

19

v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of

20

federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc.

21

v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal

22

jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly

23

pleaded complaint.” Id.

24

In the Fourth Amended Complaint #16, Plaintiff alleges violations of Title VII of the

25

Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq. and violation of the Family Medical

26

Leave Act, 29 U.S.C. § 2601, et seq. Accordingly, this action is a civil action for which this

27

Court has original jurisdiction under 28 U.S.C. § 1331, which provides that United States district

28

courts “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
3

1

treaties of the United States.” Further, Title VII provides, “[e]ach United States district court . . .

2

shall have jurisdiction of actions brought under this title.” 42 U.S.C. § 2000e-5(f)(3). The Court

3

will now determine whether Plaintiff provided sufficient information to state a claim upon which

4

relief can be granted.

5

C.

6

Plaintiff alleges sexual harassment and retaliation in violation of Title VII. He attached

Title VII Claims

7

the Notice of Suit Rights letter he received from the EEOC dated on December 16, 2011 and

8

subsequently filed this action within 90 days. Thus, it appears Plaintiff exhausted his

9

administrative remedies.

10

In order to put forth a prima facie case for hostile work environment in violation of Title

11

VII, a plaintiff must show that (a) he was subjected to verbal or physical conduct of a sexual

12

nature, (b) that conduct was unwelcome, and (c) the conduct was sufficiently severe or pervasive

13

to alter the conditions of his employment and created an abusive work environment. See

14

Vasquez v. Cty. of Los Angeles, 349 F.3d 634 (9th Cir. 2003). Plaintiff alleges that he was

15

sexually harassed by male employees through unwanted touching and verbal behavior, which

16

was sufficiently severe and pervasive to alter the conditions of his employment. As a result,

17

Plaintiff has stated sufficient facts to proceed with a hostile work environment claim.

18

In order to establish a prima facie case of retaliation under Title VII, a plaintiff must

19

demonstrate that (1) he engaged in an activity protected under Title VII; (2) his employer

20

subjected him to an adverse employment action; and (3) a causal link exists between the

21

protected activity and the adverse employment action. Thomas v. City of Beaverton, 379 F.3d

22

802, 811 (9th Cir. 2004). With respect to the first element, an employee has engaged in a

23

protected act if he (1) has opposed any practice made an unlawful employment practice by this

24

subchapter; or (2) has made a charge, testified, assisted, or participated in any manner in an

25

investigation, proceeding, or hearing. 42 U.S.C. § 2000e–3(a) (2006); see also Thomas, 379 F.3d

26

at 811. Plaintiff alleges that he was subjected to several adverse employment actions including

27

being denied promotional and transfer opportunities that less experienced employees received in

28

retaliation for filed a charge with the EEOC on November 15, 2010. Taking these allegations as
4

1

true, Plaintiff has stated sufficient facts for a retaliation claim under Title VII.

2

D.

3

FMLA prohibits interference with an employee’s right to take leave under 29 U.S.C. §

FMLA Claim

4

2601, et seq. Section 2615(a) prohibits conduct that interferes with an employee’s exercise of his

5

rights under the FMLA or retaliation in the form of adverse employment action for requesting or

6

taking FMLA. Section 2617 permits an employee to bring a civil action to enforce FMLA rights.

7

In order to prove a violation of the FMLA, a plaintiff must show that the defendant either (a)

8

interfered with the exercise of his rights under the FMLA, or (b) retaliated against the plaintiff

9

for “opposing any practice made unlawful by [the] subchapter.” 29 U.S.C. §§ 2615(a).

10

Regulations adopted by the Department of Labor to enforce the FMLA interpret “interference” to

11

include “not only refusing to authorize FMLA leave, but discouraging an employee from using

12

such leave.” 29 C.F.R. § 825.220(b). Furthermore, “employers cannot use the taking of FMLA

13

leave as a negative factor in employment actions” under 29 C.F.R. § 825.220(c). See also Xin

14

Liu v. Amway Corp., 347 F.3d 1125, 1133 (9th Cir.2003). Employers interfere with an

15

employee’s rights under FMLA by “discouraging an employee from using such leave.” Id. at

16

1134. “[A]ttaching negative consequences to the exercise of protected rights surely tends to chill

17

an employee’s willingness to exercise those rights: Employees are, understandably, less likely to

18

exercise their FMLA leave rights if they can expect to be fired or otherwise disciplined for doing

19

so.” Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir.2001) (internal

20

citations omitted).

21

To establish a prima facie claim for retaliation in violation of FMLA, a plaintiff must

22

establish that he engaged in activity protected under FMLA and that a causal connection existed

23

between the employee’s activity and the adverse action. Here, Plaintiff alleges he was granted

24

FMLA leave, but it was subsequently denied, he had to resubmit his paperwork, and Defendant

25

retaliated against him. Taking these allegations as true, Plaintiff has stated sufficient facts to

26

proceed with a claim for relief under the FMLA.

27

Based on the foregoing and good cause appearing therefore,

28

IT IS HEREBY ORDERED that the Clerk of the Court shall file the Fourth Amended
5

1

Complaint (#16) and shall issue Summons to Defendant(s) and deliver the same to the U.S.

2

Marshal for service. Plaintiff shall have twenty days in which to furnish the U.S. Marshal with

3

the required Form USM-285. Within twenty days after receiving from the U.S. Marshal a copy

4

of the Form USM-285, showing whether service has been accomplished, Plaintiff must file a

5

notice with the Court identifying whether Defendant(s) was served. If Plaintiff wishes to have

6

service again attempted on an unserved Defendant(s), a motion must be filed with the Court

7

identifying the unserved Defendant(s) and specifying a more detailed name and/or address for

8

said Defendant(s), or whether some other manner of service should be attempted. Pursuant to

9

Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within 120

10
11

days from the date this order is entered.
IT IS FURTHER ORDERED that, from this point forward, Plaintiff shall serve upon

12

Defendant(s) or, if appearance has been entered by counsel, upon the attorney(s), a copy of every

13

pleading motion or other document submitted for consideration by the court. Plaintiff shall

14

include, with the original papers submitted for filing, a certificate stating that a true and correct

15

copy of the document was mailed to Defendant(s) or counsel for Defendant(s). The Court may

16

disregard any paper received by a District Judge or Magistrate Judge that has not been filed with

17

the Clerk, and any paper received by a District Judge, Magistrate Judge, or the Clerk that fails to

18

include a certificate of service.

19

DATED this 29th day of January, 2013.

20
21
22

___________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

23
24
25
26
27
28
6