Duncan v. Donahoe

Filing 4

ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file the 1 -1 Complaint. Plaintiff's Complaint is Dismissed without prejudice. Plaintiff shall have 30 days from the filing of this Order to file an Amended Complaint. Signed by Magistrate Judge George Foley, Jr on 11/17/2014. (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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ROSE DUNCAN,

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Plaintiff,
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vs.
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UNITED STATES POSTAL SERVICE
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POSTMASTER GENERAL PATRICK
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DONAHOE
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Defendant
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__________________________________________)

Case No. 2:14-cv-1229-JCM-GWF
ORDER
Application to Proceed in Forma
Pauperis (#1) and Screening of
Complaint (#1-1)

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This matter comes before the Court on Plaintiff’s Application to Proceed in Forma Pauperis
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(#1), filed on July 28, 2014.
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BACKGROUND
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Plaintiff alleges that she suffered violations of Title VII of the Civil Rights Act of 1964,
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harassment, reprisal, a hostile work environment, retaliation, and a failure to accommodate by the
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Defendant. Plaintiff alleges she was treated differently than other employees who are similarly
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situated. The Plaintiff asks to be allowed to conduct jurisdictional discovery, and requests an
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award of “back pay, liquidated damages, front pay, injunctive relief, attorneys fees, termination
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rescinded, additional award to off set increased taxes, all that the law allows including Court cost.”
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DISCUSSION
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I.

Application to Proceed In Forma Pauperis

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Plaintiff filed this instant action and attached a financial affidavit to her application and
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complaint as required by 28 U.S.C. § 1915(a). Reviewing Duncan’s financial affidavit pursuant to
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28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,
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Plaintiff's request to proceed in forma pauperis in federal court is granted.
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II.

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

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

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relief may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be

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dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a

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doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to

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relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed

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as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke

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v. Williams, 490 U.S. 319, 327–28 (1989). In determining if a complaint is frivolous, the Court

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need not accept the allegations as true, but “pierce the veil of the complaint’s factual allegations” to

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determine the truth. Neitzke, 490 U.S. at 327. Moreover, “a finding of factual frivolousness is

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appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton v.

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Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the

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plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies,

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unless it is absolutely certain from the face of the complaint that the deficiencies could not be cured

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by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Franklin v.

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Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984).

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When screening a pro se complaint, the Court should liberally construe the pleading.

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Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). A liberal construction may only be applied

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to factual allegations. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). This is the limit of the

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liberal construction; it “may not supply essential elements of that claim that were not initially pled.”

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Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997).

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III.

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Instant Complaint
The instant complaint alleges that the Plaintiff was the victim of adverse treatment by her

employer, the United States Postal Service. The Complaint consists mostly of an 8 page letter
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detailing her appeal of Administrative Judge Leslie Troope’s judgment in her Equal Employment

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Opportunity Commission case #480-2010-00490X. The other pages of the Complaint contain case

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law that Plaintiff alleges relates to her case and requests for damages and jurisdictional discovery.

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The Plaintiff appears to ask the Court to overturn the judgment of the EEOC’s

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Administrative Judge, but does not provide the Court with a copy of the judgment or copies of the

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arguments made before the Judge. The Plaintiff cites to crucial evidence used in that decision, but

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does not include that evidence for the Court to review. The Plaintiff’s 8 page letter to the EEOC

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consisting of the grounds for her appeal is dated August 28, 2012. No additional information is

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given as to the status of her case currently or to the result of this appeal. It is unclear what ruling

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was made that prompted the appeal. The Plaintiff claims she is entitled to jurisdictional discovery,

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but does not say why she is legally entitled to it, what she is looking for, or what materials are

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needed. The allegations Plaintiff makes, including harassment, hostile work environment,

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violations of Title VII of the Civil Rights Act, and retaliation by her employer are all actionable

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claims, but no facts are provided to support them. As such, this Court cannot come to a definite

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conclusion as to whether Plaintiff’s case lacks merit. The Complaint in this case will be dismissed

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so that the Plaintiff can have an opportunity to amend and include sufficient information to allow

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the case to proceed.

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If Plaintiff elects to proceed in this action by filing an amended complaint, she is informed

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that the court cannot refer to a prior pleading in order to make her amended complaint complete.

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each defendant

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must be sufficiently alleged.

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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

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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 the Complaint (#1-1)

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IT IS FURTHER ORDERED that Plaintiff’s Complaint (#1-1) is dismissed without

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prejudice. Plaintiff shall have 30 days from the filing of this order to file an amended complaint.
DATED this 17th day of November, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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