Villafana v. T-Mobile et al

Filing 4

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall have twenty days in which to furnish the U.S. Marshal with the required Form USM-285. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within 90 days from the date this order is entered. Signed by Magistrate Judge Daniel J. Albregts on 4/26/2021. (Copies have been distributed pursuant to the NEF - JQC)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 TERI P. VILLAFANA, 10 Plaintiff, Case No.: 2:21-cv-00661-GMN-DJA ORDER 11 v. 12 T-MOBILE, et al., 13 14 Defendants. Pursuant to 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 15 authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF No. 1). Plaintiff also 16 submitted a complaint. (ECF No. 1-1). 17 I. In Forma Pauperis Application 18 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown an 19 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in 20 forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is further 21 INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s 22 complaint. 23 II. Screening the Complaint 24 Upon granting an application to proceed in forma pauperis, courts additionally screen the 25 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 26 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 27 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 28 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 1 1 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 2 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 3 F.3d 1103, 1106 (9th Cir. 1995). 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 5 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 6 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 7 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 8 showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 9 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it 10 demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 11 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 12 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 13 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 14 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 15 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 16 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 17 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 18 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 19 construction of pro se pleadings is required after Twombly and Iqbal). 20 In this case, Plaintiff attempts to bring claims under Title VII of the Civil Rights Act of 21 1964 and Nevada law. See Compl. (ECF No. 1-1). The Court will address the sufficiency of those 22 claims below. 23 A. Title VII 24 Plaintiff alleges she was subjected to race discrimination and retaliation under Title VII. 25 To sufficiently allege a prima facie case of discrimination in violation of Title VII to survive a § 26 1915 screening, Plaintiff must allege that: (1) she is a member of a protected class; (2) she was 27 performing according to the Company’s legitimate expectations; (3) she suffered an adverse 28 employment action; and (4) similarly situated individuals outside of her protected class were 2 1 treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also 2 Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003); Gardner v. LKM Healthcare, LLC, 2012 3 U.S. Dist. LEXIS 111415 (D. Nev. July 27, 2012). 4 In order to make out a prima facie case of retaliation, Plaintiff must show: (1) involvement 5 in a protected activity, (2) a “materially adverse” action, and (3) a causal link between the two. 6 Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (citing Payne v. Norwest Corp., 7 113 F.3d 1079, 1080 (9th Cir. 1997)); see also, Burlington Northern & Santa Fe Rwy. Co. v. White, 8 458 U.S. 53, 68 (2006) (setting forth the “materially adverse” standard). To prove causation, 9 Plaintiff “must show by a preponderance of the evidence that engaging in the protected activity 10 was one of the reasons for the ‘adverse employment decision and that but for such activity’ the 11 adverse employment action would not have occurred.” See Villiarimo v. Aloha Island Air, Inc., 12 281 F.3d 1054, 1064-65 (9th Cir. 2002). 13 To her Complaint, Plaintiff attaches her charge dated January 13, 2020 and the dismissal 14 and right to sue issued by the EEOC on January 11, 2021. The Court may take judicial notice of 15 these documents. See, e.g., Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Mack v. South 16 Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986) (finding that “court[s] may take judicial 17 notice of ‘records and reports of administrative bodies’ ”), overruled on other grounds by Astoria 18 Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991); Mazzorana v. Emergency Physicians 19 Med. Grp., Inc., 2:12–cv–01837–JCM–PAL; 2013 WL 4040791, at *5 n.3 (D. Nev. Aug. 6, 2013) 20 (taking judicial notice of EEOC proceedings and documents submitted therein). As a result, the 21 Court finds that Plaintiff timely filed this action and exhausted her administrative remedies with 22 respect to her race and retaliation claims. 23 However, she also indicated on her complaint that she believes that she was discriminated 24 against based on her religion (Rastafarian) and disability (PTSD and anxiety), but no mention of 25 such categories is made on her inquiry form or charge. The Court cannot consider incidents of 26 discrimination not included in an EEOC charge “unless the new claims are like or reasonably 27 related to the allegations contained in the EEOC charge.” Lyons v. England, 307 F.3d 1092, 1104 28 (9th Cir. 2002) (quotation omitted). A claim is like or reasonably related to allegations in an EEOC 3 1 charge if the claims “fell within the scope of the EEOC’s actual investigation or an EEOC 2 investigation which can reasonably be expected to grow out of the charge of discrimination.” Id. 3 To make this determination, the Court considers factors such as “the alleged basis of the 4 discrimination, dates of discriminatory acts specified within the charge, perpetrators of 5 discrimination named in the charge, and any locations at which discrimination is alleged to have 6 occurred.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quotation 7 omitted). Here, the Court is not certain whether her religion and disability claims were within the 8 scope of the EEOC’s investigation to find that they were administratively exhausted. However, 9 given that she is proceeding pro se, the Court will permit her to survive screening at this point. 10 Additionally, she names individual defendants, which is not permitted under Title VII. See 11 Miller v. Maxwell’s Intern. Inc., 991 F.2d 583 (9th Cir. 1993) (“[I]ndividual defendants cannot be 12 held liable for damages under Title VII”). Rather, Plaintiff may only bring suit against her 13 employer, who may be found liable for the actions of its employees under the respondeat superior 14 theory of liability. As such, it is not clear that Plaintiff has a cognizable claim against the individual 15 defendants. However, the Court will permit her complaint to survive screening at this point and 16 she may attempt to cure these deficiencies, if she can, with an amended complaint. 17 III. Conclusion 18 Accordingly, IT IS ORDERED that: 19 1. Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not be 20 required to pre-pay the filing fee of four hundred and two dollars ($402.00). Plaintiff 21 is permitted to maintain this action to conclusion without the necessity of prepayment 22 of any additional fees or costs or the giving of a security therefor. This order granting 23 leave to proceed in forma pauperis shall not extend to the issuance and/or service of 24 subpoenas at government expense. 25 26 2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint (ECF No. 1-1) on the docket. 27 28 4 1 3. The Clerk of the Court shall issue Summons to Defendants and deliver the same to the 2 U.S. Marshal for service. The Clerk of the Court shall also deliver a copy of the 3 complaint (ECF No. 1-1) to the U.S. Marshal for service. 4 4. Plaintiff shall have twenty days in which to furnish the U.S. Marshal with the required 5 Form USM-285. 1 Within twenty days after receiving from the U.S. Marshal a copy of 6 the Form USM-285, showing whether service has been accomplished, Plaintiff must 7 file a notice with the court identifying whether defendants were served. If Plaintiff 8 wishes to have service again attempted on an unserved defendant, a motion must be 9 filed with the Court identifying the unserved defendant and specifying a more detailed 10 name and/or address for said defendant, or whether some other manner of service 11 should be attempted. 12 5. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within 90 days from the date this order is entered. 13 14 6. From this point forward, Plaintiff shall serve upon Defendants, or, if appearance has 15 been entered by counsel, upon the attorney(s), a copy of every pleading, motion, or 16 other document submitted for consideration by the court. Plaintiff shall include with 17 the original papers submitted for filing a certificate stating the date that a true and 18 correct copy of the document was mailed to Defendants or counsel for Defendants. The 19 Court may disregard any paper received by a District Judge or Magistrate Judge that 20 has not been filed with the Clerk, and any paper received by a District Judge, Magistrate 21 Judge, or the Clerk that fails to include a certificate of service. 22 23 Dated: April 26, 2021 ___________________________________ DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 The USM-285 form is available at www.usmarshals.gov/process/usm285.pdf. 5

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