Patel v. Smith

Filing 6

ORDER that the clerk shall file the Amended Complaint 5 and shall issue Summons to Defendants and deliver the same to the US Marshal for service. Plaintiff shall have twenty days in which to furnish the US Marshal with the required Form USM-285. Signed by Magistrate Judge Carl W. Hoffman on 12/3/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEBRA JENE PATEL-JULSON,

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Plaintiff,
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vs.
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PAUL SMITH, et al.,
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Defendants.
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____________________________________)

Case No. 2:12-cv-01023-MMD-CWH
ORDER

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This matter is before the Court on Plaintiff’s Amended Complaint (#5), filed on October
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29, 2012. On June 15, 2012, Plaintiff filed an Application to Proceed in Forma Pauperis (#1).
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On October 3, 2012, the Court granted Plaintiff’s Application to Proceed in Forma Pauperis (#1)
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and ordered the Clerk of the Court to file Plaintiff’s Complaint. In addition, the Court ordered
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that the Complaint be dismissed without prejudice and granted Plaintiff thirty (30) days to file an
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amended complaint correcting the noted deficiencies. The Court will now screen Plaintiff’s
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Amended Complaint.
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DISCUSSION
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I.

Screening the Amended Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen
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the complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the
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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,
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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2). Allegations of a pro se complaint are held to less stringent standards than formal
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pleading drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium). When a
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court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the
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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70

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

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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. Review under Rule

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12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of

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America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);

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Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require

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

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled

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factual allegations contained in the complaint, but the same requirement does not apply to legal

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conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action,

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supported only by conclusory allegations, do not suffice. Id. at 678. Secondly, where the claims

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in the complaint have not crossed the line from plausible to conceivable, the complaint should be

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dismissed. Twombly, 550 U.S. at 570.

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Additionally, the court cannot refer to a prior pleading in order to make an amended

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complaint complete. Local Rule 15-1 requires that an amended complaint be complete in itself

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without reference to any prior pleading. This is because, as a general rule, an amended complaint

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

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

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

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must be sufficiently alleged.

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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.” According to Plaintiff’s complaint

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she is a citizen of Nevada. Plaintiff has not alleged sufficient facts to determine the citizenship
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of the parties she seeks to sue and whether complete diversity exists. Therefore, the Court finds

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that Plaintiff has not invoked the court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332.

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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. Here, it appears Plaintiff is attempting to state a claim for discrimination

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under Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e et seq. A claim under this statute

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invokes the Court’s is federal-question jurisdiction pursuant to 28 U.S.C. § 1331. The Court will

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

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relief can be granted.

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C.

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Title VII allows individuals to sue an employer for discrimination on the basis of race,

Title VII Claim

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color, religion, gender or national origin if she has exhausted both state and EEOC administrative

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procedures. Once a plaintiff files charges with the EEOC, it will investigate the charges, attempt

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to reach a settlement, and decide whether to sue the employer or refer the decision to sue to the

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Attorney General if the charges are against a state or local governmental entity. Id. If the EEOC

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or Attorney General decides not to sue and if there is no settlement that is satisfactory to plaintiff,

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the EEOC will issue plaintiff a right-to-sue letter and plaintiff will have exhausted her remedies

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with the EEOC. See 42 U.S.C. § 2000e-5(f)(1). After receipt of the right-to-sue letter, plaintiff
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may sue in federal or state court. Id.; see also Yellow Freight Sys., Inc. v. Donenelly, 494 U.S.

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820, 825-26, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). Plaintiff received a right to sue letter on

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April 18, 2012 and filed her and filed this action within 90 days of its receipt. Thus, it appears as

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though Plaintiff has exhausted her administrative remedies.

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In order to prove a prima facie case of discrimination in violation of Title VII, Plaintiff

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must establish the following: (a) she belonged to a protected class; (b) she was qualified for the

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position; (c) she was subject to an adverse employment action; and (d) similarly situated

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employees not in her protected class received more favorable treatment. Moran v. Selig, 447

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F.3d 748, 753 (9th Cir. 2006) (citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th

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Cir.2002)). Plaintiff may also provide direct evidence of the discrimination. See Vasquez v.

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County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). Plaintiff is an African-American

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female who alleges that she was paid less wages and terminated due to her race and gender. For

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the gender discrimination claim, Plaintiff alleges that she was paid two dollars an hour less than

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another male employee, Craig, who had less experience and worked with less luxurious brands.

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She also highlights the fact that she received awards for her performance and attached a

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recommendation letter and excellent interview performance rating letter. See Amended

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Complaint #5, 18-19. Taking these allegations as true, Plaintiff has stated sufficient facts to state

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a gender discrimination claim under Title VII.

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Additionally, Plaintiff states that she was treated differently because of her race. She

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alleges that she had to listen to rap music with the word “nigger” in it while she was in the stock

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room. Plaintiff also indicates that her supervisor disciplined her for a comment that a customer

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made describing her as a “black lady . . . [who] was laughing loudly.” She further alleges that

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she did not receive her clothing allowance nor was she allowed to participate in the 401K plan in

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contrast to other employees. Taking these allegations as true, Plaintiff has stated sufficient facts

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to state a race discrimination claim under Title VII.

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Based on the foregoing and good cause appearing therefore,

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

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Complaint (#5) and shall issue Summons to Defendants and deliver the same to the U.S. Marshal
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for service. Plaintiff shall have twenty days in which to furnish the U.S. Marshal with the

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

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

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with the Court identifying whether Defendant was served. If Plaintiff wishes to have service

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again attempted on an unserved Defendant, a motion must be filed with the Court identifying the

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unserved Defendant and specifying a more detailed name and/or address for said Defendant, or

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whether some other manner of service should be attempted. Pursuant to Rule 4(m) of the Federal

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Rules of Civil Procedure, service must be accomplished within 120 days from the date this order

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is entered.

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IT IS FURTHER ORDERED that, from this point forward, Plaintiff shall serve upon

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

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

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

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copy of the document was mailed to Defendants or counsel for Defendants. The Court may

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

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

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include a certificate of service.

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DATED this 3rd day of December, 2012.

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

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