Narcisse v. Virgin Galactic et al

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Jerry H. Ritter. Plaintiff shall, by January 27, 2025, file an amended Application to Proceed in District Court Without Prepaying Fees or Costs. Failure to timely file an amended application ma y result in denial of Plaintiff's application to proceed in forma pauperis. Plaintiff shall, by January 27, 2025, show cause why the Court should not dismiss this case and file an amended complaint. Failure to timely show cause and file an amended complaint may result in dismissal of this case. (jm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SERGE NARCISSE,
Plaintiff,
v.

No. 2:24-cv-01313-JHR

VIRGIN GALACTIC,
TALINE COLE and
JENNY KIM,
Defendants.
ORDER FOR AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed December 31, 2024 (“Complaint”), and Plaintiff’s
Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 3, filed
December 31, 2024 (“Application”)
Order for Amended 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.
It is not clear from the information in the Application whether Plaintiff is able to pay the
costs of these proceedings. Plaintiff explains that he cannot pay the costs of these proceedings
stating: “I am continually seeing an Orthopedic following a back surgery and the cost for
medication such as Tramadol, Gabapentin, Tizanidine is very high, and also the cost to purchase a
back pad to wear on a daily basis.” Application at 5. However, elsewhere in the Application,
Plaintiff indicates his monthly medical expenses are $300.00. See Application at 4. Taking into
account the $300 monthly medical expenses, the Application shows that Plaintiff’s monthly
income exceeds his monthly expenses by $1,025.00, which indicates Plaintiff is able to pay the
fees and costs of this action. See Application at 2, 5.
The Court orders Plaintiff to file an amended Application that clarifies Plaintiff’s income,
expenses and ability to pay the fees and costs of this action.
Order to Show Cause
Plaintiff alleges that during his employment with Defendant Virgin Galactic, he “was being
insulted in several occasions by one of the assistant crew chiefs,” Plaintiff reported the incidents
to his crew chief and other “leaders” who did nothing about his complaint. Complaint at 2.
Plaintiff contends that he was retaliated against by being “removed from the hangar and sent to
work at their warehouse, cleaning cabinets and other activities” and that the “retaliation continued
with manager’s harassment and reminded me that I was not born in the US and English is not my

2

language to just stay silent on their constant reprimands and insults.” Complaint at 2. Plaintiff
also asserts that he “received $5,000.00 sign in when all other employe[e]s had received $10,000
sign in” and after “completing the two week notice I was demanded to return the amount while
other employees had quit the company and were never requested to return their amount.”
Complaint at 2.
Plaintiff filed his Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983.” "The two elements of a Section 1983 claim are (1) deprivation of a federally
protected right by (2) an actor acting under color of state law." Schaffer v. Salt Lake City Corp.,
814 F.3d 1151, 1155 (10th Cir. 2016). Plaintiff checked the boxes on the Complaint form stating
Defendants were acting under color of state law but has not alleged any facts showing that
Defendants were acting under color of state law. See Complaint at 1-2. Consequently, the
Complaint fails to state claims pursuant to 42 U.S.C. § 1983.
Plaintiff is asserting discrimination and retaliation claims arising from his employment
with Defendant Virgin Galactic. See Complaint at 1. The Complaint fails to state claims against
Defendants Cole and Kim because there are no factual allegations clearly explaining what
Defendants Cole and Kim did to Plaintiff. See Nasious v. Two Unknown B.I.C.E. Agents, at
Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in
federal court, a complaint must explain what each defendant did to him or her; when [each]
defendant did it; how [each] defendant’s action harmed him or her; and, what specific legal right
the plaintiff believes [each] defendant violated.”) (emphasis added).
It appears Plaintiff is asserting his employment discrimination and retaliation claims
pursuant to Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2 and 2000e-3.
a Title VII plaintiff bringing a claim of employment discrimination must plausibly
allege these elements: (1) she is a member of a protected class, (2) she suffered an
3

adverse employment action, and (3) the challenged action occurred under
circumstances giving rise to an inference of discrimination.
....
a plaintiff asserting a Title VII retaliation claim must plausibly allege (1) that she
engaged in protected opposition to 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.
McNellis v. Douglas County School District, 116 F.4th 1122, 1139, 1142 (10th Cir. 2024)
(quotation marks omitted). Plaintiff alleges that he was harassed during his employment, was
transferred from the hangar to a warehouse after complaining about the harassment, was offered
less money as a sign-on incentive than other employees, and was required to return the sign-on
money after terminating his employment unlike other employees. Plaintiff has not, however,
alleged facts showing that discrimination and retaliation played a motivating part in the
employment decisions. While Plaintiff is not required to plead any specific facts to state a claim,
Plaintiff must “adequately allege[] the adverse employment actions occurred under circumstances
which give rise to an inference of unlawful discrimination” and retaliation. McNellis, 116 F.4th at
1141; Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021) (“Allegations that
are merely consistent with a defendant’s liability” are not sufficient; a plaintiff must “allege facts
from which we may reasonably infer Defendant’s liability” and which “nudge the claim across the
line from conceivable or speculative to plausible”).
The Court orders Plaintiff to show cause why the Court should not dismiss Plaintiff’s
claims for failure to state a claim upon which relief can be granted. If Plaintiff asserts the Court
should not dismiss his claims, Plaintiff must file an amended complaint. The amended complaint
must comply with the Federal and Local Rules of Civil Procedure. See Fed. R. Civ. P. 10(b) (“A
party must state its claims or defenses in numbered paragraphs”).

4

Plaintiff did not sign his Complaint. See Fed. R. Civ. P. 11(a) (“The court must strike an
unsigned paper unless the omission is promptly corrected after being called to the attorney's or
party's attention”). Because the Court is ordering Plaintiff to file an amended complaint, the Court
will not require Plaintiff to sign the original Complaint at this time. Plaintiff must sign the
amended complaint.
Case Management
Generally, pro se litigants are held to the same standards of professional
responsibility as trained attorneys. It is a pro se litigant’s responsibility to become
familiar with and to comply with the Federal Rules of Civil Procedure and the Local
Rules of the United States District Court for the District of New Mexico (the “Local
Rules”).
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October
2022). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
Compliance with Rule 11
The Court reminds Plaintiff of his obligations pursuant to Rule 11 of the Federal Rules of
Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (“Pro se status
does not excuse the obligation of any litigant to comply with the fundamental requirements of the
Federal Rules of Civil and Appellate Procedure.”). Rule 11(b) provides:
Representations to the Court. By presenting to the court a pleading, written
motion, or other paper--whether by signing, filing, submitting, or later advocating
it--an attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
5

(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to
sanctions, including monetary penalties and nonmonetary directives. See Fed. R. Civ. P. 11(c).
IT IS ORDERED that:
(i)

Plaintiff shall, within 21 days of entry of this Order, file an amended Application to
Proceed in District Court Without Prepaying Fees or Costs. Failure to timely file
an amended Application may result in denial of Plaintiff’s Application to proceed
in forma pauperis.

(ii)

Plaintiff shall, within 21 days of entry of this Order: (a) show cause why the Court
should not dismiss this case; and (b) file an amended complaint. Failure to timely
show cause and file an amended complaint may result in dismissal of this case.

_____________________________________
Hon. Jerry H. Ritter
United States Magistrate Judge

6