Parker v. Makah Tribal Council et al

Filing 2

ORDER denying 1 Motion for Leave to Proceed in forma pauperis and DISMISSING COMPLAINT by Judge Benjamin H Settle.(TG; cc mailed to plaintiff)

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

2
3
4
5

SIMON P. PARKER,
Plaintiff,

6
v.

7
8

MAKAH TRIBAL COUNCIL,

CASE NO. C12-5607 BHS
ORDER DENYING MOTION TO
PROCEED IN FORMA
PAUPERIS AND DISMISSING
COMPLAINT WITH PREJUDICE

Defendant.
9
10
This matter comes before the Court on Plaintiff Simon Parker’s (“Parker”) motion
11
to proceed in forma pauperis (Dkt. 1) and complaint (Dkt. 1–1).
12
On July 9, 2012, Parker filed the motion and his complaint alleging discrimination
13
in employment. He alleges that he was discriminated against in 1997 or 1998. Dkt 1–1
14
at 2. He states that he did not file a complaint with the Equal Employment Opportunity
15
Commission (“EEOC”). Id.
16
A federal court may dismiss sua sponte pursuant to Fed. R. Civ. P. 12(b)(6) when
17
it is clear that the plaintiff has not stated a claim upon which relief may be granted. See
18
Omar v. Sea Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may
19
dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6).... Such a dismissal may be
20
made without notice where the claimant cannot possibly win relief.”). See also Mallard
21
v. United States Dist. Court, 490 U.S. 296, 307 08 (1989) (there is little doubt a federal
22

ORDER - 1

1 court would have the power to dismiss frivolous complaint sua sponte, even in absence of
2 an express statutory provision). A complaint is frivolous when it has no arguable basis in
3 law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
4

In order to obtain relief under Title VII, a plaintiff must first file an administrative

5 claim with the EEOC no later than 300 days after the alleged unlawful employment
6 practice occurred. 42 U.S.C. §§ 2000e–5(e)(1), 12117(a). An employment
7 discrimination claim accrues when the plaintiff knows of the allegedly unlawful
8 employment decision. Lukovsky v. City & County of S.F., 535 F.3d 1044, 1049–50 (9th
9 Cir. 2008). “[F]ailure to file an EEOC charge within the prescribed 300–day period . . . is
10 treated as a violation of a statute of limitations.” Santa Maria v. Pac. Bell, 202 F.3d 1170,
11 1176 (9th Cir. 2000).
12

In this case, Parker’s complaint is frivolous. Parker concedes that he did not file

13 an administrative claim, which precludes Parker from filing suit. Moreover, the alleged
14 discrimination happened almost fifteen years ago, which is outside of the 300–day filing
15 period.
16

Therefore, it is hereby ORDERED that Parker’s motion to proceed in forma

17 pauperis (Dkt. 1) is DENIED and Parker’s complaint (Dkt. 1–1) is DISMISSED with
18 prejudice.
19

Dated this 18th day of July, 2012.

A

20
21

BENJAMIN H. SETTLE
United States District Judge

22

ORDER - 2