United States District Court, D. Nevada
BARBARA J. REGA, Plaintiff(s),
VANGUARD INTEGRITY PROFESSIONALS, INC., et al., Defendant(s).
J. KOPPE United States Magistrate Judge.
is proceeding in this action pro se and has
requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. Docket No. 2. Plaintiff
also filed a Complaint. Docket No. 1.
In Forma Pauperis Application
submitted the affidavit required by § 1915(a) through
which Plaintiff contends she is unable to prepay fees and
costs or give security for them. Docket No. 2. While a close
question, the request to proceed in forma pauperis
will be granted.
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must additionally screen a complaint pursuant to §
1915. Federal courts are given the authority to dismiss a
case if the action is legally “frivolous or 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). When a
court dismisses a complaint under § 1915, the plaintiff
should be given leave to amend the complaint with directions
as to curing its deficiencies, unless it is clear from the
face of the complaint that the deficiencies could not be
cured by amendment. See Cato v. United States, 70
F.3d 1103, 1106 (9th Cir. 1995).
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal of a complaint for failure to state a claim upon
which relief can be granted. Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.
2000). 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). Although
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, 556 U.S. 662, 678
(2009) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). The court must accept as true all well-pled factual
allegations contained in the complaint, but the same
requirement does not apply to legal conclusions.
Iqbal, 556 U.S. at 679. Mere recitals of the
elements of a cause of action, supported only by conclusory
allegations, do not suffice. Id. at 678. Secondly,
where the claims in the complaint have not crossed the line
from plausible to conceivable, the complaint should be
dismissed. Twombly, 550 U.S. at 570. Allegations of
a pro se complaint are held to less stringent
standards than formal pleading drafted by lawyers. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010).
construed, Plaintiff brings federal causes of action for
sexual harassment, sex discrimination, and retaliation, in
addition to state tort claims. See Docket No. 1.
Title VII allows persons to sue for certain
employment-related claims if he or she has exhausted both
state and Equal Employment Opportunity Commission (EEOC)
administrative procedures. Once a plaintiff files charges
with the EEOC, the commission will investigate the charges,
attempt to reach a settlement, and decide whether to sue the
employer or refer the decision to sue to the Attorney General
if the charges are against a state or local governmental
entity. See 42 U.S.C. § 2000e-5. If
the EEOC or Attorney General decides not to sue and if there
is no settlement that is satisfactory to plaintiff, the EEOC
will issue plaintiff a right-to-sue letter and plaintiff will
have exhausted his remedies with the EEOC. See 42
U.S.C. § 2000e-5(f)(1). After receipt of the right to
sue letter, plaintiff may sue in federal or state court.
Id.; see also Yellow Freight Sys., Inc. v.
Donenelly, 494 U.S. 820, 825-26
“Where the employee files a civil action before
completion of the administrative process, however, the civil
action is subject to dismissal without prejudice as
premature.” Bell v. Milburn, 2016 WL 7049032,
at *2 (N.D. Cal. Dec. 5, 2016) (citing Wrighten v. Metro.
Hosps., Inc., 726 F.2d 1346, 1351 (9th Cir. 1984) and
Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218
(5th Cir. 1982)). In this instance, Plaintiff's complaint
alleges that she initiated the administrative process with
the EEOC. See, e.g., Docket No. 1 at ¶ 39.
Plaintiff has not alleged, however, the outcome of that
process such as the issuance of a right to sue letter.
Accordingly, the complaint fails to sufficiently allege that
this case should proceed at this time.
IT IS ORDERED that:
Plaintiff's request to proceed in forma pauperis
is GRANTED. Plaintiff shall not be required
to pay the filing fee of four hundred dollars ($400.00).
Plaintiff is permitted to maintain this action to conclusion
without the necessity of prepayment of any additional fees or
costs or the giving of a security therefor. This Order
granting leave to proceed in forma pauperis shall
not extend to the issuance and/or service of subpoenas at
Complaint is DISMISSED with leave to amend.
Plaintiff will have until February 17, 2017,
to file an Amended Complaint, if the noted deficiencies can
be corrected. If Plaintiff chooses to amend the complaint,
Plaintiff is informed that the Court cannot refer to a prior
pleading (i.e., his original Complaint) in order to make the
Amended Complaint complete. This is because, as a general
rule, an Amended Complaint supersedes the original Complaint.
Local Rule 15-1(a) requires that an Amended Complaint be
complete in itself without reference to any prior pleading.
Once a plaintiff files an Amended Complaint, the original
Complaint no longer serves any function in the case.
Therefore, in an Amended Complaint, as in an ...