United States District Court, D. Nevada
DONALD A. SCOTT JR., Plaintiff,
HARRAH'S LLC, Defendant.
ORDER AND REPORT & RECOMMENDATION APPLICATION TO
PROCEED IN FORMA PAUPERIS (ECF NO. 1) AND COMPLAINT (ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
matter involves Plaintiff Donald A. Scott Jr.'s
disability discrimination action against Defendant
Harrah's LLC. Before the Court is Scott's Application
to Proceed in Forma Pauperis (ECF No.
and Complaint (ECF No. 1-1). For the reasons stated below,
Scott's Application to Proceed in Forma Pauperis
is granted. Scott's Complaint should be dismissed with
Donald A. Scott Jr. alleges that he worked at Harrah's
Hotel & Casino from October 2006 to December 2015-a
period of about 9 years. See ECF No. 1-1 at 6. In
2014, Scott asserts that he informed Harrah's management
that he suffered from drug use/addiction. Id. Scott
claims that he voluntarily sought treatment and rehab
services. Id. According to Scott, Harrah's
accommodated his drug treatment by adjusting his work
schedule. Id. Scott alleges that Harrah's
management “suspected [Scott] to be under the influence
and spoke to [him] on multiple occasions.” Id.
But after each time, Scott returned to his work. Id.
In November 2015, Scott returned to rehab. Id. at 7.
According to Scott, Harrah's management was aware of his
return to rehab. Id. On December 7, 2015,
Harrah's randomly drug tested Scott, suspending him
without pay pending the results. Id. The results
came back positive. Id. Scott acknowledges that he
“used marijuana approximately 2 to 3 weeks before the
drug test.” Id. at 8. Harrah's management
allegedly told Scott that he was not taking his rehab and
treatment program seriously. Id. On the day before
Christmas, Harrah's fired Scott.
brings claims for disability discrimination, wrongful
termination, and retaliation against Harrah's. ECF No.
1-1 at 4.
filings present two questions for this Court: (1) whether
Scott may proceed in forma pauperis under 28 U.S.C.
§ 1915(e) and (2) whether Scott's complaint states a
plausible claim for relief.
In Forma Pauperis
28 U.S.C. § 1914(a), a filing fee is required to
commence a civil action in federal court. The Court may
authorize the commencement of an action without prepayment of
fees and costs or security therefor, by a person who submits
an affidavit that includes a statement showing the person is
unable to pay such costs. See 28 U.S.C. §
1915(a)(1). The standard governing in forma pauperis
eligibility under 28 U.S.C. § 1915(a)(1) is
“unable to pay such fees or give security
therefor.” Determination of what constitutes
“unable to pay” or unable to “give security
therefor” and, therefore whether to allow a plaintiff
to proceed in forma pauperis, is left to the
discretion of the presiding judge, based on the information
submitted by the plaintiff or plaintiffs. See, e.g.,
Fridman v. City of New York, 195 F.Supp.2d 534, 536
(S.D.N.Y.), aff'd, 52 Fed.Appx. 157 (2nd Cir.
asserts in his application to proceed in forma
pauperis that he does not earn any income. ECF No. 1 at
1. He previously worked as a dice dealer at Tuscany Suites
and Casino making minimum wage plus tips for about a year
until March 2017. Id. He is living with his family
and has no savings. Id. at 2. Scott has monthly
expenses of about $565, including $75 for rent, $40 for his
cell phone, and $450 for child support. Id. Scott
took out multiple cash loans totaling $500. Id. The
Court grants Scott's application to proceed in forma
Screening the Complaint
court grants a plaintiff in-forma-pauperis status,
it must review the operative complaint to determine whether
it is “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.
See 28 U.S.C. § 1915(e)(2). This review is
guided by two legal standards: (1) Federal Rule of Civil
Procedure 8 and (2) the Supreme Court's decision in
Haines v. Kerner, 404 U.S. 519, 520 (1972).
Civ. P. 8(a) provides that a complaint “that states a
claim for relief must contain … a short and plain
statement of the claim showing that the [plaintiff] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme
Court's decision in Ashcroft v. Iqbal states
that in order to satisfy Rule 8's requirements a
complaint's allegations must cross “the line from
conceivable to plausible.” 129 S.Ct. 1937, 1950-51
(2009). The Court's decisions in Bell Atlantic Corp.