Phillips v. Henry Schein Inc.

Filing 6

ORDER: Based on the foregoing. Plaintiff's Complaint 1 is dismissed without prejudice and with leave to refile an Amended Complaint within thirty days of this ruling. Plaintiff must cure the deficiencies identified above or his case will be dismissed. Plaintiff's IFP application 2 is held in abeyance and will be considered when the amended complaint is filed. Plaintiff's Motionfor Appointment of Counsel 3 is denied. Signed on 02/27/2018 by Magistrate Judge Mark D. Clarke. (rsm) (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

DA YID N. PHILLIPS.

Case No. 1: l 8-cv-00340-CL

Plaintiff.
v.

ORDER
HENRY SCHEIN, INC.,

Defendants.

CLARKE. Magistrate Judge.
Plaintiff David N. Phillips eeks to proceed in/(mrza pauper is ("IFP") in this action. For
the reasons stated below, Plaintiff's Complaint (#1) is dismissed without prejudice and with
leave to refile a First Amended Complaint within thirty days of this ruling. Plaintiffs IFP
application (#2) is held in abeyance and will be considered when the amended complaint is filed.
Plaintiff's Motion for Pro Bono Counsel (#3) is denied.

LEGAL STANDARD
Generally. all parties instituting any civil action in United States District Court must pay
a statutory filing fee. 28 U.S.C. § l 914(a). However, the federal IFP statute, 28 U.S.C. §
19 l 5(a)( l ), provides indigent litigants an opportunity for meaningful access to the federal courts

Page: I - ORDER

despite their inability to pay the costs and fees associated with that access. To authorize a
litigant to proceed IFP, a court must make two determinations. First, a court must determine
whether the Iitigant is unable to pay the costs of commencing the action. 28 U .S.C. § 19l5(a)(1 ).
Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon
which relief may be granted. or seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
In regard to the second of these determinations. district courts have the power under 28
U .S.C. § 1915( e )(2 )(B) to screen complaints even before the service of the complaint on the
defendants, and must dismiss a complaint if it fails to state a claim. Courts apply the same
standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To
survive a motion to dismiss under the federal pleading standards, the complaint must include a
short and plain statement of the claim and ''contain sufficient factual matter, accepted as true, to
·state a claim for relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell At!. Corp. r. Twomh~v. 550 U.S. 544. 570 (2007)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. The plausibility standard ... asks for
more than a sheer possibility that a defendant has acted unlawfully." Id. The Court is not
required to accept legal conclusions, unsupported by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines
v. Kerner, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by prose

plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los

Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a prose

Page 2 - ORDER

litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend,
unless the complaint's deficiencies cannot be cured by amendment. Id.

DISCUSSION
1. Plaintifrs Complaint is dismissed for failure to state a claim for relief because it

does not indicate whether Plaintiff has received a Right To Sue Letter from the
EEOC.
Plaintiffs Complaint alleges that he requested accommodation from his employer for a
disability. He does not identify the disability, but he indicates that the defendant failed to
Jccommodate him in the manner requested. Plaintiff alleges that, as a result of this failure, he
was injured at work. It appears as though Plaintiff belie\es his claim arises under the Americans
with Disabilities Act (ADA) for failure to accommodate a disability, but he also claims economic
damages for his on-the-job injury, which would likely be a separate tort claim. It is unclear
whether Plaintiff is allowed to bring such a claim, however, because he does not indicate
whether he was eligible for. or actually received. worker·s compensation for his injuries. 1
However, even if the only claim brought by Plaintiff arises under the ADA, an employee
must first file a charge with the Equal Employment Opportunity Commission (EEOC) before
filing a complaint alleging an ADA violation against his employers. See EEOC v. Farmer Bros.

Co., 31 F .3d 89 L 899 (9th Cir.1994) ("An individual plaintiff must first file a timely EEOC
complaint against the allegedly discriminatory party before bringing an ADA suit in federal
court."); Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir. 2006). Plaintiff has not alleged or
that he filed a timely charge against his employer with the EEOC, nor has he indicated in his
Complaint that he is entitled to equitable relief from this requirement. Plaintiff must cure this
deficiency before his case 1113y proceed. His Complaint is dismissed with leave to refile.
1

In Oregon and California, as in most states, the statutory workers' compensation system is the exclusive
remedy of an employee injured on the job against their direct employer. See ORS 656.018(7) and
California Labor Code 3600.

Page 3 - ORDER

2. Plaintifrs Complaint is dismissed for lack of personal jurisdiction.
Even assuming the allegations in the Complaint state a plausible claim for relief, the
Complaint does not adequately state the basis for this Court to exercise personal jurisdiction over
the defendant. If Plaintiff files an amended complaint he must cure this deficiency to avoid
dismissal, as discussed below.
Where, as here. there is no federal statute governing personal jurisdiction. the law of the
state in which the Court sits applies. CollegeSource. Inc. v. AcademyOne. Inc .. 653 F.3d 1066.
1073 (9th Cir.2011 ); Panavision Int'!, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998).
Oregon's long arm statute, Oregon Rule of Civil Procedure ("'ORCP") 4, extends personal
jurisdiction to the extent permitted by federal due process. Gray & Co. v. Firstenberg Mach.

Co., 913 F.2d 758, 760 (9th Cir.1990); Tech Heads, Inc. v. DesktopServ. Ctr., Inc., 105 F. Supp.
2d 1142, 1144 (D. Or. 2000).
Federal due process requires that a nonresident defendant have "certain minimum
contacts .. with the forum state uf such a nature that the e.\ercise of personal jurisdiction ··does not
offend 'traditional notions of fair play and substantial justice."' International Shoe Co. v. State of

Washington, qf]ice of Unemployment Compensation and Placement. 326 U.S. 310, 316 (1945)
(quoting .\!Ji/liken v. J\;Jeyer, 311 U.S. 457, 463 (1940)). This constitutional test may be satisfied
by showing that (1) the defendant has "substantial" or "continuous and systematic" contacts with

the forum state-i.e. '·general jurisdiction," or (2) there is a strong relationship between the
defendant's forum contacts and the cause of action-i.e. "specific jurisdiction." Decker Coal Co.
i·.

Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir.1986). See also Ziegler v. Indian River

County, 64 F .3d 4 70, 4 73 (9th Cir.1995).

Page 4 - ORDER

In this case, Plaintiff identifies the defendant as a corporation incorporated under the lm\ ~
of the State of New York, with a principal place of business in the State of California. Thus, the
defendant is a "non-resident" of Oregon, and the Plaintiff must demonstrate that the Court has
specific personal jurisdiction.
In order for the court to exercise specific jurisdiction, the lawsuit "must arise out of or
relate to the defendant's contacts with the forum." Bristol-Myers Squibb Co. v. Superior Court of
Cal{fornia, San Francisco Cry., 137 S. Ct. 1773, 1780, 198 L. Ed. 2d 395 (2017) (citing Burger
King Corp. r. Rudze1ricz. 471 U.S. 462. 472-473 (1985): Helicopleros Nacionales de Colombia.
SA. v. Hall, 466 U.S. 408, 414 (1984). In other words, there must be "an affiliation between the

forum and the underlying controversy, principally, [an] activity or an occurrence that takes place
in the forum State and is therefore subject to the State's regulation." Goodyear. 564 U.S., at 919.
131 S.Ct. 2846 (internal quotation marks and brackets omitted). For this reason, "specific
jurisdiction is confined to adjudication of issues deriving from, or connected with, the very
controversy that establishes jurisdiction." Id. (internal quotation marks omitted).
Plaintiff must show that there is a strong relationship between his claims, and the
defendant's contacts vvith the State of Oregon. He does not allege that he was employed by the
defendant in Oregon, nor does he state whether any of the facts alleged in the Complaint took
place in Oregon. Therefore, he has failed to allege sufficient facts for the Court to exercise
personal jurisdiction over the defendant. If he is unable to allege such facts in an amended
complaint, Plaintiff must bring his claims in a court that does have personal jurisdiction - i.e .. a
court in the State of California or the State of New York.

3. Plaintifrs motion for pro bono counsel is denied.

Page 5 - ORDER

Generally, there is no constitutional right to counsel in a civil case. United States v. 30. 64

.'Jcres <~/Land, 795 F.2d 796, 801 (9th Cir.1986). However, pursuant to 28 U.S.C. § 1915(e),
this court has discretion to request volunteer counsel for indigent plaintiffs in exceptional
circumstances. id; 11'ood r. House11 right, 900 F.2d 13 32. 13 3 5 (9th Cir. I 990 ). While this court
may request volunteer counsel in exceptional cases, it has no power to make a mandatory
appointment. Mallard v. U.S. Dist. Court of!uwa, 490 U.S. 296, 301-08 (1989).
The Cou11 has reviewed Plaintiff's motions and other records, and does not find the
exceptional circumstances that wuuld warrant appointment of counsel. The Court understands
the difficulty of proceeding as a self-represented litigant, however, and will take a close look at
the recurd and filings in this case, including all of the evidence submitted by the parties, and any
briefs and arguments submitted by Plaintiff. The Court will also consider extending deadlines,
if that would assist the Plaintiff. He should contact the Court in writing to request such an
extension.
Finally, Plaintiff may request a form for an application for CM/ECF Registration, which
would allow him to file documents with the Court electronically. Many self-represented litigants
find this

10

be more efficient and convenient than filing by mail or in person. The form. as well

as other information about proceeding as a self-represented litigant can also be found on the
Courf s website: <https://ord.uscourts.gov/index.php/2015-02-10-16-10-22/inforrnation-aboutrepresenting-yourself>.

ORDER
Based on the foregoing. Plaintiff's Complaint (#1) is dismissed without prejudice and
with leave to refile an Amended Complaint within thirty days of this ruling. Plaintiff must cure
the deficiencies identified above or his case will be dismissed. Plaintiff's IFP application (#2) is

Page 6 - ORDER

held in abeyance and will be considered when the amended complaint is filed. Plaintiff's Motion
for Appointment of Counsel (#3) is denied.

11

ORDERED and DA TED this - - ' - - - - - -

Page 7 - ORDER