Barbieri v. Wynn/Las Vegas
Filing
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ORDER Granting 1 Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file the Complaint. The Complaint is dismissed without prejudice, with leave to amend. Denying as moot 6 Motion for Status Check. Amended Complaint due within 30 days. Signed by Magistrate Judge Carl W. Hoffman on 11/8/2012. (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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ANTHONY RUBEN ALDO BARBIERI,
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Plaintiff,
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vs.
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WYNN/LAS VEGAS,
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Defendant.
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____________________________________)
Case No. 2:12-cv-00429-MMD-CWH
ORDER
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This matter is before the Court on Plaintiff’s Application to Proceed in Forma Pauperis
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(#1), filed on March 14, 2012. It is also before the Court on Plaintiff’s Motion for Status Check
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(#6), filed on November 7, 2012.
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DISCUSSION
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I.
In Forma Pauperis Application
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Plaintiff submitted a financial affidavit along with his application and complaint as
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required by 28 U.S.C. § 1915(a). After reviewing the financial affidavit pursuant to 28 U.S.C. §
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1915(a), the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result, Plaintiff's
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request to proceed in forma pauperis is granted.
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II.
Screening the Complaint
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Upon granting a request to proceed in forma pauperis, a court must additionally screen a
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complaint pursuant to § 1915(a). Specifically, federal courts are given the authority dismiss a
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case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief may
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be granted, or seeks monetary relief from a defendant who is immune from such relief. 28
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U.S.C. § 1915(e)(2). A complaint may be dismissed as frivolous if it is premised on a
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nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 32728
28 (1989). Moreover, “a finding of factual frivolousness is appropriate when the facts alleged
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rise to the level of the irrational or wholly incredible, whether or not there are judicially
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noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).
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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a
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complaint for failure to state a claim upon which relief can be granted. A complaint should be
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dismissed under Rule 12(b)(6) “if it appears beyond a doubt that the plaintiff can prove no set of
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facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d
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791, 794 (9th Cir. 1992). Review under Rule 12(b)(6) is essentially a ruling on a question of law.
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See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000).
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A properly pled complaint must provide a short and plain statement of the claim showing
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that the pleader is entitled to relief.” Fed.. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombley,
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550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it
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demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause
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of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265,
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286 (1986)). The court must accept as true all well-pled factual allegations contained in the
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complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679.
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Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do
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not suffice. Id. at 678. Allegations of a pro se complaint are held to less stringent standards than
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formal pleading drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium).
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When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to
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amend the complaint with directions as to curing its deficiencies, unless it is clear from the face
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of the complaint that the deficiencies could not be cured by amendment. See Cato v. United
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States, 70 F.3d 1103, 1106 (9th Cir. 1995).
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A.
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Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil
Diversity Jurisdiction
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actions in diversity cases “where the matter in controversy exceeds the sum or value of $75,000”
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and where the matter is between “citizens of different states.” Plaintiff asserts damages of
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$300,000.00 in her complaint. However, Plaintiff states that he is a citizen of Nevada, but does
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not provide the citizenship of Defendants. The diversity jurisdiction statute requires that to bring
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a diversity case in federal court against multiple defendants, each plaintiff must be diverse from
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each defendant. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 388 (1998). Plaintiff
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and the Defendants appear to be Nevada citizens so there is no diversity jurisdiction in this case.
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B.
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As a general matter, federal courts are courts of limited jurisdiction and possess only that
Federal Question Jurisdiction
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power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004).
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Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over “all civil
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actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises
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under’ federal law either where federal law creates the cause of action or ‘where the vindication
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of a right under state law necessarily turn[s] on some construction of federal law.’” Republican
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Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd.
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v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of
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federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc.
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v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal
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jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly
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pleaded complaint.” Id.
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Here, Plaintiff alleges race and national origin discrimination in violation of Title VII of
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the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq., age discrimination in violation of
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the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and
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violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq.
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Accordingly, this action is a civil action for which this Court has original jurisdiction under 28
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U.S.C. § 1331, which provides that United States district courts “shall have original jurisdiction
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of all civil actions arising under the Constitution, laws, or treaties of the United States.” Further,
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Title VII provides, “[e]ach United States district court . . . shall have jurisdiction of actions
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brought under this title.” 42 U.S.C. § 2000e-5(f)(3).
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C.
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It appears Plaintiff is attempting to state a claim for race and national origin
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Title VII Claim
discrimination in violation of Title VII. Title VII allows a person to sue an employer for
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discrimination on the basis of race and national origin if he has exhausted both state and EEOC
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administrative procedures. Once plaintiff files charges with the EEOC, the commission will
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investigate the charges, attempt to reach a settlement, and decide whether to sue the employer.
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Id. If the EEOC decides not to sue and if there is no settlement satisfactory to plaintiff, the
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EEOC will issue plaintiff a right-to-sue letter and plaintiff will have exhausted his remedies with
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the EEOC. See 42 U.S.C. § 2000e-5(f)(1). After receipt of the right-to-sue letter, plaintiff may
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sue in federal or state court. Id. Here, Plaintiff has attached a Notice of Suit Rights letter from
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the EEOC dated December 16, 2011 and subsequently filed this action within 90 days. Thus, it
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appears Plaintiff has exhausted his administrative remedies.
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However, Plaintiff has not provided adequate factual support for his claims. To state a
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claim for relief, “a complaint must contain sufficient factual matter to ‘state a claim to relief that
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is plausible on its face.’” Iqbal, 556 U.S. at 678-79. In order to prove a prima facie case of
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discrimination in violation of Title VII, Plaintiff must establish: (a) he belonged to a protected
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class; (b) he was qualified for the job; (c) he was subjected to adverse employment action; and
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(d) similarly situated employees not in her protected class received more favorable treatment.
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Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006) (citing Kang v. U. Lim Am., Inc., 296 F.3d 810,
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818 (9th Cir. 2002)). Plaintiff generally alleges that he was discriminated against due to his
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Argentinean national origin and Hispanic race, which resulting in him being demoted on April
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13, 2010 to steady, extra on-call status, while other employees with less seniority were given full-
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positions. However, Plaintiff does not specify how he was qualified for the full-time position
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that he was denied. Thus, Plaintiff has not stated a claim under Title VII.
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D.
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The ADEA makes it unlawful “to discharge any individual ... because of such individual's
ADEA Claim
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age.” 29 U.S.C. § 623(a)(1). In order to establish a disparate treatment claim, the plaintiff must
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produce evidence that gives rise to an inference of unlawful discrimination, either through direct
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evidence of discriminatory intent or through the burden shifting framework set forth in
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See
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Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir.2003); Diaz v. Eagle Produce Ltd.
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P'ship, 521 F.3d 1201, 1207 (9th Cir.2008). Additionally, in order to establish liability for a
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pattern and practice claim of age discrimination, a plaintiff bears the initial burden of proving
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disparate treatment based upon age. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336,
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97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). A pattern and practice claim must be based upon “more
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than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. It [must be]
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establish[ed] by a preponderance of the evidence that [age] discrimination was the company's
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standard operating procedure - the regular rather than the unusual practice.” Id. The plaintiff
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must show “a prima facie case of systematic and purposeful employment discrimination.” Id. at
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342, 97 S.Ct. 1843.
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Here, Plaintiff has failed to state his age, produce any direct evidence of discriminatory
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intent like statements by Defendant regarding his age, or statistical evidence that Defendant
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employees younger employees. Thus, Plaintiff has not stated a claim under the ADEA.
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E.
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FMLA prohibits interference with an employee’s right to take leave under 29 U.S.C. §
FMLA Claim
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2601, et seq. Section 2615(a) prohibits conduct that interferes with an employee’s exercise of his
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rights under the FMLA or retaliation in the form of adverse employment action for requesting or
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taking FMLA. Section 2617 permits an employee to bring a civil action to enforce FMLA rights.
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In order to prove a violation of the FMLA, a plaintiff must show that the defendant either (a)
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interfered with the exercise of his rights under the FMLA, or (b) retaliated against the plaintiff
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for “opposing any practice made unlawful by [the] subchapter.” 29 U.S.C. §§ 2615(a).
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Regulations adopted by the Department of Labor to enforce the FMLA interpret “interference” to
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include “not only refusing to authorize FMLA leave, but discouraging an employee from using
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such leave.” 29 C.F.R. § 825.220(b). Furthermore, “employers cannot use the taking of FMLA
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leave as a negative factor in employment actions” under 29 C.F.R. § 825.220(c). See also Xin
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Liu v. Amway Corp., 347 F.3d 1125, 1133 (9th Cir.2003). Employers interfere with an
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employee’s rights under FMLA by “discouraging an employee from using such leave.” Id. at
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1134. “[A]ttaching negative consequences to the exercise of protected rights surely tends to chill
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an employee’s willingness to exercise those rights: Employees are, understandably, less likely to
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exercise their FMLA leave rights if they can expect to be fired or otherwise disciplined for doing
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so.” Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir.2001) (internal
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citations omitted).
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To establish a prima facie claim for retaliation in violation of FMLA, a plaintiff must
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establish that he engaged in activity protected under FMLA and that a causal connection existed
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between the employee’s activity and the adverse action. Here, Plaintiff alleges he was granted
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FMLA leave, but it was subsequently denied. He did not allege sufficient facts to determine
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what protected activity he engaged in and the casual connection for the subsequent denial of
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leave. Thus, Plaintiff has not stated a claim under the FMLA.
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In conclusion, absent sufficient factual allegations to correct the above-noted subject-
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matter jurisdiction deficiencies, Plaintiff’s claims cannot survive. As Plaintiff is proceeding pro
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se, the Court will provide Plaintiff with thirty days to amend the complaint.
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Based on the foregoing and good cause appearing therefore,
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IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis
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(#1) is granted. Plaintiff shall not be required to pre-pay the full filing fee of three hundred fifty
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dollars ($350.00).
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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to its
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conclusion without the necessity of prepaying any additional fees or costs or giving security
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therefor. This Order granting leave to proceed in forma pauperis shall not extend to the issuance
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of subpoenas at government expense.
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IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint
(#1-1).
IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for
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failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have
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thirty (30) days from the date that this Order is entered to file an Amended Complaint, if he
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believes he can correct the noted deficiencies. Failure to comply with this Order may result in
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the Court recommending that this action be dismissed.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Status Check (#6) is denied as
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moot.
DATED this 8th day of November, 2012.
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___________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge
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