Kirkland v. Rio Hotel and Casino

Filing 2

ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file Plaintiff's Complaint. IT IS FURTHER ORDERED that Plaintiff's Complaint is dismissed without prejudice for f ailure to exhaust administrative remedies. Plaintiff shall have until 6/15/2013 to file an Amended Complaint in the event he receives a right-to-sue letter from EEOC. Signed by Magistrate Judge George Foley, Jr on 5/16/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL KIRKLAND,

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Plaintiff,
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vs.
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RIO HOTEL & CASINO,
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Defendant.
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__________________________________________)

Case No. 2:13-cv-00500-GMN-GWF
ORDER
Application to Proceed In Forma
Pauperis (#1) and Screening of
Complaint

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This matter comes before the Court on Plaintiff Daniel Kirkland’s (“Plaintiff”) Application

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to Proceed in Forma Pauperis (#1), filed on March 22, 2013. Plaintiff attached his Complaint (#1-

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1) to the Motion to Proceed in Forma Pauperis.

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DISCUSSION

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I.

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Plaintiff filed this instant action and attached a financial affidavit to his Application and

Application to Proceed In Forma Pauperis

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Complaint as required by 28 U.S.C. § 1915(a). Having reviewed Plaintiff’s financial affidavit

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under section 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. Therefore,

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Plaintiff's request to proceed in forma pauperis in federal court is granted.

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II.

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a

Screening the Complaint

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complaint under section 1915(a). Federal courts are given the authority to 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, or

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seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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When a court dismisses a complaint under section 1915(a), 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 of

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the 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 complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short and plain statement of

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

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

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the

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

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

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contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal,

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

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allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not

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crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550

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U.S. at 570.

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Plaintiff’s Complaint is captioned “Reconsideration to Review the Decision of the NERC1

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in this Complaint.” It alleges that the Rio Hotel & Casino rejected his job application on the basis

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of his race (African-American) and age (sixty-two). It appears Plaintiff is attempting to state a

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claim for discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.

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

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color, religion, gender, or national origin if he has exhausted both state and Equal Employment

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Opportunity Commission (“EEOC”) administrative procedures. Once Plaintiff files charges with

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the EEOC, the commission will investigate the charges, attempt to reach a settlement, and decide

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whether to sue the employer or refer the decision to the Attorney General if the charges are against

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Nevada Equal Rights Commission
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a state or local governmental entity. Id.

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Title VII limits the jurisdiction of federal courts to those claims that the EEOC has

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examined. Where a plaintiff files his complaint with a state agency, it extends the time for filing

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the complaint with the EEOC from 180 to 300 days. See Laquaglia v. Rio Hotel & Casino, Inc.,

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186 F.3d 1172, 1174 (9th Cir. 1999) (footnotes omitted).2 This allows a state or local agency to

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consider complaints before invoking federal jurisdiction, but it is not a substitute for EEOC review.

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See Porter v. California Dep’t of Corrections, 419 F.3d 885, 891 (9th Cir. 2005). A claimant must

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still file with the EEOC within the relevant statutory limitations period to invoke federal

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jurisdiction. Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)).

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However, a claim filed only with a state agency is also deemed to have been immediately filed with

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the EEOC if the state agency has a work-sharing agreement with the EEOC under which the state

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agency is an agent of the EEOC for the purpose of receiving charges. See Green v. Los Angeles

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County Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989). NERC is such an agent.

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See 20 C.F.R. § 1601.74(a) (listing NERC’s predecessor, the Nevada Commission on Equal Rights

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of Citizens). The caption of the Complaint suggests that Plaintiff filed his claim with the NERC,

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and received an adverse ruling. If so, his NERC Complaint is deemed filed with the EEOC as of

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the same date.

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If the EEOC or Attorney General decides not to sue and if there is no settlement that is

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satisfactory to Plaintiff, the EEOC will issue Plaintiff a right-to-sue letter and Plaintiff will have

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exhausted his remedies with the EEOC. See 42 U.S.C. § 2000e-5(f)(1). After receipt of the right-

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to-sue letter, Plaintiff may sue in federal or state court. Id.; see also Yellow Freight Sys., Inc. v.

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Donenelly, 494 U.S. 820, 825-26, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). Plaintiff has not

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alleged that he has exhausted his administrative remedies. Although he captioned his Complaint as

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seeking reconsideration of the NERC’s decision, the Complaint itself contains no factual

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Ordinarily, Title VII discrimination claims must be filed with the EEOC within 180 days
of when the alleged discrimination occurred. See 42 U.S.C. § 2000e-5(e)(1). Where a claimant
first files suit with a state agency (like the NERC), the time period for filing is extended as set forth
above. See 29 U.S.C. § 626(d)(2).
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allegations that Plaintiff has received a right-to-sue letter or when he received such a letter.

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Therefore, his Complaint will be dismissed with leave to amend.

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In the event Plaintiff obtains a right-to-sue letter and elects to proceed in this matter by

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filing an amended complaint, he is informed that the Court cannot refer to a prior pleading to make

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

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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

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1967). Once Plaintiff files an amended complaint, the original pleading no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

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and the involvement of each defendant must be sufficiently alleged. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis
(#1) is granted. Plaintiff shall not be required to pay the $350.00 filing fee.

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Complaint
(#1-1).
IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed without prejudice

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for failure to exhaust administrative remedies. Plaintiff may cure this defect by attaching an EEOC

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right-to-sue letter to the amended complaint.

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IT IS FURTHER ORDERED that Plaintiff shall have until June 15, 2013 to file an
amended complaint, in the event he receives a right-to-sue letter from the EEOC.
DATED this 16th day of May, 2013.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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