Committe v. Pippin
Filing
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REPORT AND RECOMMENDATION. It is hereby recommended that the District Judge enter an order GRANTING Plaintiff's IFP application ECF No. 1 ; directing the Clerk to FILE the Complaint ECF No. 1 -1; DISMISSING the Complaint WITH PREJUDICE. Objections to R&R due by 8/16/2017. Signed by Magistrate Judge William G. Cobb on 08/02/2017. (Copies have been distributed pursuant to the NEF - KW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BRUCE COMMITTE,
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Plaintiff,
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vs.
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SONJA PIPPIN, et al.,
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Defendants.
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______________________________________)
3:17-cv-00446-MMD-WGC
REPORT & RECOMMENDATION
OF U.S. MAGISTRATE JUDGE
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This Report and Recommendation is made to the Honorable Miranda M. Du, United States
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District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
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Before the court is Plaintiff’s Application to Proceed in Forma Pauperis (IFP) (ECF No. 1) and
pro se Complaint (ECF No. 1-1).
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I. IFP APPLICATION
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A person may be granted permission to proceed IFP if the person “submits an affidavit that
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includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees
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or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and
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affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d
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1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to all actions filed IFP, not
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just prisoner actions).
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In addition, the Local Rules of Practice for the District of Nevada provide: “Any person who is
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unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. The
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application must be made on the form provided by the court and must include a financial affidavit
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disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1.
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“‘[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some
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particularity, definiteness and certainty.’” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting
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Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)). A litigant need not “be absolutely
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destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331,
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339 (1948).
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A review of the application to proceed IFP reveals Plaintiff qualifies for IFP status; therefore,
the IFP application should be granted.
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II. SCREENING
A. Standard
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“The court shall dismiss the case at any time if the court determines that … the action or appeal
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(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
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This provision applies to all actions filed IFP, whether or not the plaintiff is incarcerated. See Lopez, 203
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F.3d at 1129; see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).
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Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided
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for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) tracks that language.
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Thus, when reviewing the adequacy of a complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies
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the same standard as is applied under Rule 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th
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Cir. 2012) (“The standard for determining whether a plaintiff has failed to state a claim upon which relief
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can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6)
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standard for failure to state a claim.”). Review under 12(b)(6) is essentially a ruling on a question of law.
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See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).
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In reviewing the complaint under this standard, the court must accept as true the allegations,
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construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s
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favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se
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complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v.
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Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).
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A complaint must contain more than a “formulaic recitation of the elements of a cause of action,”
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it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more …
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than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id.
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(quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)). At
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a minimum, a plaintiff should state “enough facts to state a claim to relief that is plausible on its face.”
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Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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A dismissal should not be without leave to amend unless it is clear from the face of the complaint
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that the action is frivolous and could not be amended to state a federal claim, or the district court lacks
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subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995);
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O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).
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B. Plaintiff’s Complaint
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Plaintiff alleges that his right of equal protection to the laws was violated. (ECF No. 1-1 at 1.)
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He avers that defendant Sonja Pippin, an accounting faculty member at the University of Nevada, Reno,
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was in charge of the search for a new accounting faculty member to begin in the Fall 2017. (Id. at 2.)
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Plaintiff applied for the job. (Id.) He claims that the motivating factor in not selecting him was his older
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age of 64 years. (Id.) He contends that he was well qualified for the job, and that when he asked Pippin
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to provide him with a copy of the successful applicant’s resume to check for age discrimination, she took
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it as a threat that Plaintiff was going to sue her or the university for age discrimination. (Id. at 3.) He
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alleges that they then terminated the search, but solicited applicants for the same position again the next
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year for a Fall 2018 start date. (Id.)
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Plaintiff fails to state a colorable claim under 42 U.S.C. § 1983 or the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621, et. seq.
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The ADEA prohibits arbitrary age discrimination in employment. 29 U.S.C. § 621(b). Individual
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supervisors or managers whose acts are attributed to the employer are not personally liable under the
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ADEA. Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Therefore, Ms. Pippin is not
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a proper defendant. State employers are exempt pursuant to the Eleventh Amendment, so Plaintiff could
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not amend to sue the State of Nevada under the ADEA. Kimel v. Florida Board of Regents, 528 U.S.
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62, 82 (2000).
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Insofar as Plaintiff attempts to bring his claim against Pippen under the Fourteenth Amendment
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pursuant to 42 U.S.C. § 1983, the Ninth Circuit has held that that the remedial scheme in the ADEA
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forecloses section 1983 claims based on ADEA violations. Ahlmeyer v. Nev. Sys. of Higher Educ., 555
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F.3d 1051, 1054 (9th Cir. 2009) (Ahlmeyer similarly attempted to assert ADEA claim as an equal
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protection claim pursuant to section 1983).
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Therefore, Plaintiff’s action should be dismissed with prejudice.
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III. RECOMMENDATION
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IT IS HEREBY RECOMMENDED that the District Judge enter an order:
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(1) GRANTING Plaintiff’s IFP application (ECF No. 1);
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(2) Directing the Clerk to FILE the Complaint (ECF No. 1-1); and
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(3) DISMISSING the Complaint WITH PREJUDICE.
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Plaintiff should be aware of the following:
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1. That he may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to this
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Report and Recommendation within fourteen days of receipt. These objections should be titled
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"Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points
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and authorities for consideration by the district judge.
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2. That this Report and Recommendation is not an appealable order and that any notice of appeal
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pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of
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judgment by the district court.
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DATED: August 2, 2017.
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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE
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