Leon v. Wynn Las Vegas LLC

Filing 6

ORDER granting 2 Motion/Application for Leave to Proceed in forma pauperis; Complaint is dismissed with leave to amend. Amended Complaint deadline: 8/15/2019. Signed by Magistrate Judge Nancy J. Koppe on 7/18/2019. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA
10
11

ARIEL LEON,

Case No.: 2:18-cv-00992-APG-NJK

Plaintiff(s),

12

ORDER

13

v.

14

WYNN LAS VEGAS, LLC,

15

Defendant(s).

16

Plaintiff is proceeding in this action pro se and has requested authority pursuant to

17 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 2. Plaintiff has also submitted a
18 complaint. Docket No. 2-2.
19 I.

In Forma Pauperis Application

20

Plaintiff filed the affidavit required by § 1915(a). Docket No. 2. Plaintiff has shown an

21 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in
22 forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a).
23 II.

Screening the Complaint

24

A. Standards

25

Upon granting an application to proceed in forma pauperis, courts additionally screen the

26 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the
27 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,
28 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
1

1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the
2 complaint with directions as to curing its deficiencies, unless it is clear from the face of the
3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70
4 F.3d 1103, 1106 (9th Cir. 1995).
5

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

6 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is
7 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723
8 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim
9 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v.
10 Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations,
11 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause
12 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265,
13 286 (1986)). The court must accept as true all well-pled factual allegations contained in the
14 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679.
15 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do
16 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from
17 conceivable to plausible, the complaint should be dismissed.

Twombly, 550 U.S. at 570.

18 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted
19 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal
20 construction of pro se pleadings is required after Twombly and Iqbal).
21

B. Title VII Claims

22

Plaintiff alleges that Defendant violated Title VII of the Civil Rights Act of 1964 (“Title

23 VII”), 42 U.S.C. § 2000e-5, and the Nevada anti-discrimination statue, NRS § 613.310, when he
24 was “treated disparately, subjected to hostile work environment, and subsequently retaliatorily
25 terminated.” Docket No. 2-2 at 2.
26

Before a plaintiff can file an action for an alleged violation of Title VII, he must file a

27 timely charge of discrimination with the Equal Employment Opportunity Commission within 300
28 days of the discriminatory act and then file suit within ninety days of receiving a right-to-sue letter.
2

1 42 U.S.C. § 2000e-5(e)(1) & (f)(1). “This ninety-day period is a statute of limitations.” Nelmida
2 v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir.1997), cert. denied, 522 U.S. 858 (1997). Title
3 VII claims filed beyond the ninety-day period are subject to dismissal under Rule 12(b)(6). See
4 e.g., Scholar v. Pac. Bell, 963 F.2d 264, 266 (9th Cir. 1992); see also Ortez v. Washington County,
5 State of Oregon, 88 F.3d 804, 807 (9th Cir. 1996) (“If the claimant does not file within this 90-day
6 period, the action is barred.”). Compliance with the 90–day filing requirement is a condition
7 precedent to filing in federal court, which acts like a statute of limitations. See, e.g., Million v.
8 Frank, 47 F.3d 385, 389 (10th Cir.1995).
9

Here, Plaintiff submits that he experienced intentional adverse disciplinary acts and

10 humiliating statements, was denied benefits, rights, and privileges afford to other employees, and
11 was retaliatorily terminated by Defendant because of his race, national origin, and disability.
12 Docket No. 2-2 at 6-11. Plaintiff submits that Defendant’s actions were willful and that Defendant
13 knew about the conduct of its employees, but failed to take corrective action. Id. at 6-8, 10.
14 Plaintiff submits that he first filed his Charge of Discrimination on June 30, 2014, was terminated
15 on December 20, 2015, and received Notice of Right to Sue Letter on April 14, 2016. Id. at 2; see
16 also Docket No. 2-3 at 4, 6, 10. Plaintiff filed his application to proceed in forma pauperis and
17 his complaint on June 1, 2018. Docket No. 2. Accordingly, Plaintiff received his right to sue letter
18 more than two years before he filed suit in this Court.
19

In light of the above, the complaint is hereby DISMISSED without prejudice. 1 Although

20 it appears unlikely that Plaintiff can overcome the above deficiency, the Court will permit him the
21 opportunity to amend the complaint if he believes he can do so.
22 III.

Conclusion

23

Accordingly, IT IS ORDERED that:

24

1. Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not be

25

required to pay the filing fee of four hundred dollars ($400.00). Plaintiff is permitted

26
27

1

In light of the deficiency outlined herein, the Court need not opine on whether other
deficiencies exist that may also prevent Plaintiff from pursuing his claims through the instant
28 lawsuit.
3

1

to maintain this action to conclusion without the necessity of prepayment of any

2

additional fees or costs or the giving of a security therefor. This order granting leave

3

to proceed in forma pauperis shall not extend to the issuance and/or service of

4

subpoenas at government expense.

5

2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint on the docket.

6

3. The complaint is DISMISSED with leave to amend. Plaintiff will have until August

7

15, 2019, to file an amended complaint to show that his case was timely filed. If

8

Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court cannot

9

refer to a prior pleading (i.e., the original complaint) in order to make the amended

10

complaint complete. This is because, as a general rule, an amended complaint

11

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

12

complaint be complete in itself without reference to any prior pleading. Once a plaintiff

13

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

14

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

15

the involvement of each Defendant must be sufficiently alleged.

16
17

4. Failure to comply with this order will result in the recommended dismissal of this
case.

18

IT IS SO ORDERED.

19

Dated: July 18, 2019
______________________________
Nancy J. Koppe
United States Magistrate Judge

20
21
22
23
24
25
26
27
28
4