JAMES A. MORGAN, Plaintiffs,
CLARK COUNTY NEVADA, et al., Defendants.
Presently before the court is defendants Clark County, Nevada, Glenn Trowbridge, and Steve Sisolak’s motion to dismiss. (Doc. # 5). Defendant Edward M. Finger joined the motion to dismiss. (Doc. # 10). Pro se plaintiff James A. Morgan filed a response, (doc. # 9), and defendants filed a reply, (doc. # 12).
Also before the court is plaintiff’s motion for leave to file an amended complaint. (Doc. # 24). Defendants filed a response, (doc. # 26), and plaintiff filed a reply, (doc. # 27).
Plaintiff’s complaint is incredibly difficult to follow. The court has spent considerable time piecing together the pertinent factual allegations.
Plaintiff was a long-term employee of Clark County. (Doc. # 1). Clark County hired him in September 1977. (Doc. # 1 at 1). Plaintiff first worked in the courthouse maintenance department and then moved to the parks and recreation department where he held the title of swimming pool technician. (Doc. # 1 at 1).
When defendant Glenn Trowbridge became the director for parks and recreation, plaintiff alleges he became a victim of continuous harassment. (Doc. # 1 at 1). In 2001, after 24 years of service with Clark County, plaintiff was either fired by defendant Trowbridge, (doc. # 1 at 3), forced into retirement, (doc. # 1 at 6), or forced into total permanent disability, (doc. # 1 at 2, 7– 8).
Plaintiff alleges that, at the time of his separation from Clark County, defendants acted in concert to deprive plaintiff of “pertinent information regarding his disability benefits specifically medical premiums, federal income tax status while on disability and supplemental disability benefits.” (Doc. # 1 at 2). He was denied all supplemental benefits. (Doc. # 1 at 2). Plaintiff further asserts that at the time of his separation from Clark County, “intentional mistakes” were submitted to the Public Employees Retirement System (PERS), which prevented plaintiff from receiving supplemental disability benefits. (Doc. # 1 at 2).
Plaintiff also alleges he was not been paid more than $15, 000 for serving as acting swimming pool supervisor for over eleven months at some point during his tenure with Clark County. (Doc. # 1 at 3).
Since plaintiff’s separation from Clark County in 2001, he has tried to “get clarification from Clark County” regarding the claims in his instant complaint. Plaintiff alleges that the defendants improperly calculated his benefits and that these miscalculations created financial losses for him, including the loss of two vehicles that were financed with his disability insurance, and the loss of his home in 2006.
Plaintiff has previously filed two federal actions in this district. In 1998, plaintiff filed an employment discrimination case against defendant Trowbridge, case number CV-S-98-0886-DWH-RJJ. (Doc. # 1 at 3). Plaintiff alleged that he was denied a position in October 1996 because of his race. The court granted summary judgment for defendants.
In 2008, plaintiff brought an employment discrimination case, case number 2:08-cv-00333-PMP-PAL. (Doc. # 1 at 3). The court dismissed plaintiff’s claims for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. There was no diversity jurisdiction, Morgan pleaded only state law claims, and Morgan’s 42 U.S.C. § 1983 claim was not colorable. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal-question jurisdiction . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’”). Plaintiff appealed and the Ninth Circuit affirmed. (Doc. # 58).
II. Legal Standard
A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint. Id. at 1950. However, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported by only conclusory statements, do not suffice. Id. at 1949. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the ...