Arambula v. Walgreens Drug Stores et al
Filing
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MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson GRANTING 3 Motion to Proceed under 28 U.S.C. 1915 and DISMISSING Plaintiff's Complaint without prejudice for failure to state a claim. Plaintiff may file an amended complaint within 21 days of entry of this Order. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID ARAMBULA,
Plaintiff,
v.
No. 18cv151 WJ/SCY
WALGREENS DRUG STORES and
NANCY MARQUEZ,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
THIS MATTER comes before the Court on pro se Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs, Doc. 3, filed February 14, 2018 (“Application”)
and on Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed February 14,
2018 (“Complaint”).
For the reasons stated below, the Court will GRANT Plaintiff’s
Application and DISMISS Plaintiff’s Complaint without prejudice. Plaintiff shall have 21 days
from entry of this Order to file an amended complaint. Failure to timely file an amended
complaint may result in dismissal of this case without prejudice.
Application to Proceed in forma pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the
Court may authorize the commencement of any suit without prepayment of fees by a person who
submits an affidavit that includes a statement of all assets the person possesses and that the person
is unable to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,
if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis ] was intended
for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,”
“an affidavit is sufficient which states that one cannot because of his poverty pay or give security
for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at
339.
The Court will grant Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these
proceedings and provided the following information: (i) Plaintiff’s average monthly income is
$2,133.00 in disability; and (ii) Plaintiff’s monthly expenses total $2,184.00. The Court finds that
Plaintiff is unable to pay the costs of this proceeding because his monthly expenses exceed his
monthly income.
Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which
relief may be granted; ... or seeks monetary relief against a defendant who is immune from such
relief.” See 28 U.S.C. § 1915(e)(2). “[P]ro se litigants are to be given reasonable opportunity to
remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.
1991).
Plaintiff alleges that Defendants discriminated against Plaintiff because of his age, sex, and
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disability, and that Defendants retaliated against Plaintiff. See Complaint at 3. Plaintiff was
employed by Defendant Walgreens Drug Stores. Defendant Nancy Marquez was a Walgreens
Store manager. Defendant Marquez “constantly reminded [Plaintiff] about [his] age and . . .
would ask when [Plaintiff] was going to retire.” Complaint at 2. Plaintiff “knew [Defendant
Marquez] wanted a younger female as her [assistant store manager].”
Complaint at 3.
Defendant Marquez constantly took “the office type work away from [Plaintiff] and [gave] it to the
females” and gave Plaintiff more “grunt work.” Complaint at 3. Plaintiff was informed that he
would not be promoted to Store Manager if he was not “pharmacy certified” and that he would
need to be pharmacy certified to keep his position.” Complaint at 5. Plaintiff alleges that he was
diagnosed with a disability with which his doctor advised him it would not be in his best interest to
be around sick people. Plaintiff also alleges that Defendants were aware of his disability.
Plaintiff alleges that after he spoke with the District Manager about Defendant Marquez’ treatment
of Plaintiff, Defendant Marquez assigned Plaintiff more “grunt work as a way of retaliation.”
Complaint at 3.
The Court will dismiss Plaintiff’s age discrimination claim without prejudice for failure to
state a claim because Plaintiff has not alleged that he was replaced by a younger person. See
Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1195 (10th Cir. 2008) (for the Court to
allow a claim to proceed, a plaintiff must allege sufficient evidence, which for an age
discrimination claim consists of showing that plaintiff: (i) was within a protected age group, (ii)
was doing satisfactory work, (iii) was discharged despite the adequacy of his or her work, and (iv)
has some evidence that the employer intended to discriminate against him, such as showing that
the employer discharged the plaintiff but retained a younger employee who held a similar
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position).
The Court will dismiss Plaintiff’s sex discrimination claim without prejudice for failure to
state a claim because Plaintiff has not alleged that he was qualified for the position and has not
sufficiently alleged that he suffered an adverse employment action. See Piercy v. Maketa, 480
F.3d 1192, 1203 (10th Cir. 2007) (for the Court to allow a claim to proceed, a plaintiff must allege
sufficient evidence, which for an sex discrimination claim consists of showing that: (1) he is a
member of a protected class; (2) he suffered an adverse employment action; (3) he was qualified
for the position at issue; and (4) he was treated less favorably than others not in the protected
class). Although Plaintiff alleges he had office work taken away from him and he was assigned
grunt work, “a mere inconvenience or an alteration of job responsibilities [are] not an adverse
employment action.” Piercy v. Maketa, 480 F.3d at 1192 (“Adverse employment action includes
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits”).
The Court will dismiss Plaintiff’s disability discrimination claims without prejudice for
failure to state a claim because he does not allege that he was terminated because of his disability
or that he requested accommodation regarding his pharmacy certification. See E.E.O.C. v. C.R.
England, Inc., 644 F.3d 1028, 1037-1038 (10th Cir. 2011) (for the Court to allow a claim to
proceed, a plaintiff must allege sufficient evidence, which for an disability discrimination claim
consists of showing that plaintiff: (1) is a disabled person as defined by the ADA; (2) is qualified,
with or without reasonable accommodation, to perform the essential functions of the job held or
desired; and (3) suffered discrimination by an employer or prospective employ because of that
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disability); E.E.O.C. v. C.R. England, Inc., 644 F.3d at 1049 (before an employer’s duty to provide
reasonable accommodations—or even to participate in the interactive process—is triggered under
the ADA, the employee must make an adequate request, thereby putting the employer on notice,
i.e. the employee must make clear to the employer that the employee wants assistance for his
disability).
Finally, the Court will dismiss Plaintiff’s retaliation claim without prejudice for failure to
state a claim because he has not alleged that he engaged in protected opposition to discrimination.
See Hinds v. Sprint/United Management Co., 523 F.3d at 1202 (for the Court to allow a claim to
proceed, a plaintiff must allege sufficient evidence, which for a retaliation claim consists of
showing that: (1) he engaged in protected opposition to age discrimination, (2) a reasonable
employee would have considered the challenged employment action materially adverse, and (3) a
causal connection existed between the protected activity and the materially adverse action); Dick
v. Phone Directories Co., 397 F.3d 1256, 1267 (10th Cir. 2005) (for the Court to allow a claim to
proceed, a plaintiff must allege sufficient evidence, which for a retaliation claim consists of
showing that: (1) he engaged in protected opposition to sex discrimination, (2) employer took an
adverse employment action against him, and (3) a causal connection between the protected activity
and the adverse action); E.E.O.C. v. C.R. England, Inc., 644 F.3d at 1051 (for the Court to allow a
claim to proceed, a plaintiff must allege sufficient evidence, which for a retaliation claim consists
of showing that plaintiff: (1) that he engaged in protected opposition to disability discrimination,
(2) that a reasonable employee would have found the challenged action materially adverse, and (3)
that a causal connection existed between the protected activity and the materially adverse action).
“Protected opposition can range from filing formal charges to voicing informal complaints to
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superiors.” Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1015 (10th Cir. 2004). Plaintiff
alleges that Defendant Marquez retaliated against him after Plaintiff discussed his “issues” with
the District Manager and after Plaintiff discussed scheduling employees with the District Manager.
See Complaint at 2-3. Plaintiff does not identify his “issues” or indicate that his discussions with
the District Manager constituted complaints regarding unlawful discriminatory practices.
Having dismissed all of Plaintiff’s claims without prejudice for failure to state a claim, the
Court will dismiss Plaintiff’s Complaint without prejudice. Plaintiff shall have 21 days from
entry of this Order to file an amended complaint. Failure to timely file an amended complaint
may result in dismissal of this case without prejudice.
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at this time.
The Court will order service if Plaintiff timely files an amended complaint which states a claim
over which the Court has jurisdiction, and which includes the address of every defendant named in
the amended complaint.
IT IS ORDERED that:
(i) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs,
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Doc. 3, filed February 14, 2018, is GRANTED.
(ii) Plaintiff’s Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed February
14, 2018, is DISMISSED without prejudice. Plaintiff may file an amended complaint within 21
days of entry of this Order.
________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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