Rega v. Vanguard Integrity Professionals, Inc. et al

Filing 8

ORDER granting 2 Motion/Application for Leave to Proceed in forma pauperis. Amended Complaint deadline: 2/17/2017. Complaint is DISMISSED with leave to amend. Signed by Magistrate Judge Nancy J. Koppe on 1/19/17. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BARBARA J. REGA,

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Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. Docket No. 2. Plaintiff also filed a Complaint. Docket No. 1.

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I.

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Plaintiff(s),

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vs.

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VANGUARD INTEGRITY PROFESSIONALS,
INC., et al.,

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Defendant(s).

Case No. 2:17-cv-00110-JAD-NJK
ORDER

In Forma Pauperis Application

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Plaintiff submitted the affidavit required by § 1915(a) through which Plaintiff contends she

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is unable to prepay fees and costs or give security for them. Docket No. 2. While a close question,

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the request to proceed in forma pauperis will be 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. Federal courts are given the authority to dismiss a case if the action

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is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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

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a court dismisses a complaint under § 1915, 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 F.3d

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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 the

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

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

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it 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, 286

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

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

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of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at

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678. Secondly, where the claims in the complaint have not crossed the line from plausible to

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conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro

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se complaint are held to less stringent standards than formal pleading drafted by lawyers. Hebbe v.

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Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010).

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Broadly construed, Plaintiff brings federal causes of action for sexual harassment, sex

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discrimination, and retaliation, in addition to state tort claims. See Docket No. 1. Title VII allows

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persons to sue for certain employment-related claims if he or she has exhausted both state and Equal

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Employment Opportunity Commission (EEOC) administrative procedures. Once a plaintiff files

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

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and decide whether to sue the employer or refer the decision to sue to the Attorney General if the

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charges are against a state or local governmental entity. See 42 U.S.C. § 2000e-5. If the EEOC or

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

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EEOC. See 42 U.S.C. § 2000e-5(f)(1). After receipt of the right to sue letter, plaintiff may sue in

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federal or state court. Id.; see also Yellow Freight Sys., Inc. v. Donenelly, 494 U.S. 820, 825-26
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(1990). “Where the employee files a civil action before completion of the administrative process,

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however, the civil action is subject to dismissal without prejudice as premature.” Bell v. Milburn,

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2016 WL 7049032, at *2 (N.D. Cal. Dec. 5, 2016) (citing Wrighten v. Metro. Hosps., Inc., 726 F.2d

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1346, 1351 (9th Cir. 1984) and Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218 (5th Cir. 1982)).

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In this instance, Plaintiff’s complaint alleges that she initiated the administrative process with

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the EEOC. See, e.g., Docket No. 1 at ¶ 39. Plaintiff has not alleged, however, the outcome of that

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process such as the issuance of a right to sue letter. Accordingly, the complaint fails to sufficiently

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allege that this case should proceed at this time.1

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III.

Conclusion

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Accordingly, IT IS ORDERED that:

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1.

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Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not
be required to pay the filing fee of four hundred dollars ($400.00).

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Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security therefor. This

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Order granting leave to proceed in forma pauperis shall not extend to the issuance

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and/or service of subpoenas at government expense.

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3.

The Complaint is DISMISSED with leave to amend. Plaintiff will have until

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February 17, 2017, to file an Amended Complaint, if the noted deficiencies can be

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corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the

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Court cannot refer to a prior pleading (i.e., his original Complaint) in order to make

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the Amended Complaint complete. This is because, as a general rule, an Amended

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Complaint supersedes the original Complaint. Local Rule 15-1(a) requires that an

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Amended Complaint be complete in itself without reference to any prior pleading.

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Once a plaintiff files an Amended Complaint, the original Complaint no longer

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serves any function in the case. Therefore, in an Amended Complaint, as in an

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As noted above, Plaintiff also brings state tort claims. The undersigned declines to screen
those claims at this time as it is not clear that independent subject matter jurisdiction would exist as
to those claims in the event the federal law causes of action fail.
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original Complaint, each claim and the involvement of each Defendant must be

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sufficiently alleged.

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recommended dismissal of this case.

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Failure to comply with this order will result in the

Dated: January 19, 2017

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NANCY J. KOPPE
United States Magistrate Judge

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