United States District Court, D. Nevada
MICHAEL L. HOLT, Plaintiff,
99 CENT STORE OF RENO, NV., et al, Defendants.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. This action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and L RIB 1-4. Before the court is Michael
Holt's ("plaintiff) second amended complaint (ECF
No. 7). For the reasons discussed below, the court recommends
that the amended complaint be dismissed without prejudice and
without leave to amend.
BACKGROUND AND PROCEDURAL HISTORY
filed an application to proceed in forma pauperis
(ECF No. 1) and a motion of clarification (ECF No. 4). This
court construed plaintiffs motion of clarification as his
first amended complaint. On June 1, 2017, this court issued a
screening order, in which it screened both the application to
proceed in forma pauperis and the first amended
complaint. (ECF No. 5.) First, this court granted plaintiffs
application to proceed in forma pauperis. (Id. at
1). Second, this court addressed plaintiffs first amended
complaint, which consisted of references to various federal
and state laws followed by vague, conclusory statements.
(Id. at 2-3). Notwithstanding this, this court
determined that plaintiffs allegations could potentially give
rise to a race discrimination claim or a hostile work
environment claim, if properly replead. (Id. at
3-4). In addition, this court advised plaintiff that
non-employer individuals, including supervisory employees,
cannot be held liable under Title VII. (Id. at 4-5).
Therefore, a Title VII claim would not be cognizable against
any employee, even the manager, of the 99 Cent Store of Reno,
Nevada. (Id. at 5). On June 29, 2017, plaintiff
filed his second amended complaint.
se civil rights complaints are governed by 28 U.S.C.
§ 1915A. Section 1915A provides, in relevant part, that
"the court shall dismiss the case at any time if the
court determines that ... the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief." 28
U.S.C. § 1915A(b). A complaint is frivolous when
"it lacks an arguable basis in either law or in
fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989). This includes claims based on legal conclusions that
are untenable (e.g., claims against defendants who are immune
from suit or claims of infringement of a legal interest which
clearly does not exist), as well as claims based on fanciful
factual allegations (e.g., delusional scenarios).
Id. at 327-28; see also McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991). Dismissal of a complaint
for failure to state a claim upon which relief may be granted
is provided for in Federal Rule of Civil Procedure 12(b)(6),
and the court applies the same standard when reviewing the
adequacy of a complaint under § 1915. Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). Under Rule
12(b)(6), the court is to dismiss when the complaint fails to
"state a claim for relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The court must accept as true all well-pled
factual allegations, set aside legal conclusions, and verify
that the factual allegations state a plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
The complaint need not contain detailed factual allegations,
but must offer more than "a formulaic recitation of the
elements of a cause of action" and "raise a right
to relief above a speculative level." Twombly,
550 U.S. at 555. Particular care is taken in reviewing the
pleadings of a pro se party, for a more forgiving
standard applies to litigants not represented by counsel.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Still, a liberal construction may not be used to supply an
essential element of the claim not initially pled. Pena
v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If
dismissal is appropriate, a pro se plaintiff should
be given leave to amend the complaint and notice of its
deficiencies, unless it is clear that those deficiencies
cannot be cured. Cato v. United States, 70 F.3d
1103, 1107 (9th Cir. 1995).
second amended complaint utterly fails to correct the defects
identified in this court's prior screening order. First,
plaintiff failed to consider this court's recommendation
that his allegations, if anything, could give rise to a race
discrimination claim or a hostile work environment claim, if
properly replead. Instead, plaintiff again lists of a
multitude of state and federal laws followed by incomplete,
disorganized sentences. (See ECF No. 7.)
plaintiff disregarded the parameters of Title VII as it
relates to stating a claim against non-employer individuals.
See, e.g., Holly D. v. Cal. Inst, of Tech., 339 F.3d
1158, 1179 (9th Cir. 2003) ("Title VII does not provide
a cause of action for damages against supervisors or fellow
employees."); Pink v. Modoc Indian Health Project,
Inc., 157 F.3d 1185, 1189 (9th Cir. 1998) (noting that
"civil liability for employment discrimination does not
extend to individual agents of the employer who committed the
violations."). Instead, plaintiff names 99 Cent Store of
Reno, Nevada employees and the stocking staff supervisor as
the defendants in his second amended complaint. (ECF No. 7 at
2.) Further, plaintiff does not name the 99 Cent Store of
Reno, Nevada as a defendant, despite it being the only viable
defendant in his Title VII claim. Miller v. Maxwell's
Intern. Inc., 991 F.2d 583, 587 (9th Cir. 1993)
("The liability schemes under Title VII... limit civil
liability to the employer.").
the court construes plaintiffs complaint liberally, even
"a liberal interpretation of a civil rights complaint
may not supply essential elements of the claim that were not
initially pled." Bruns v. Nat'l Credit Union
Admin., 122. F.3d 1251, 1257 (9th Cir. 1997). For all
the foregoing reasons, plaintiff has failed to state a
colorable § 1983 claim against any of the named
defendants, and the amended complaint must be dismissed.
While mindful that pro se litigants are generally
entitled to notice of the deficiencies in the complaint and
an opportunity to amend, Cato, 70 F.3d at 1106, the
court concludes that further leave to amend would be futile
in this case. Plaintiff was previously advised of the
applicable legal standards and granted the opportunity to
cure the defects discussed above. (See ECF No. 5.)
Plaintiff was either unable or unwilling to do so. Therefore,
plaintiffs second amended complaint and this action should be
dismissed without leave to amend. See, e.g., Frank v.
City of Henderson, 2015 WL 5562582, at *5 (D. Nev. Sept.
21, 2015) (finding further leave to amend futile where
plaintiffs amended complaint and again failed to allege
sufficient facts to support § 1983 claim); Piovo v.
Stone, No. 2:13-cv-01922-APG-GWF, 2015 WL 1014344, at *3
(D. Nev. March 9, 2015) (dismissing without leave to amend
where plaintiff failed "to adequately allege a federal
claim despite being given three opportunities to do
parties are advised:
1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2
of the Local Rules of Practice, the parties may file specific
written objections to this Report and Recommendation within
fourteen days of receipt. These objections should be entitled
"Objections to Magistrate Judge's Report and
Recommendation" and should be accompanied by points and
authorities for consideration by the District Court.
2. This Report and Recommendation is not an appealable order
and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1)
should not ...