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Landis v. Luxor Resort And Casino

United States District Court, D. Nevada

October 2, 2017

KELLY M. LANDIS, Plaintiff,
v.
LUXOR RESORT AND CASINO, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF NO. 1) AND SCREENING OF COMPLAINT (ECF NO. 1-1)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff's Application to Proceed in Forma Pauperis (#1), filed on October 14, 2016.

         BACKGROUND

         Plaintiff's complaint alleges that she has suffered from harassment, discrimination, and retaliation from coworkers and a manager of Luxor Resort and Casino-her employer. Plaintiff asserts that she was harassed by coworkers due to her disability, gender, religion, and age, that she notified the corporate hotline and government agencies regarding the harassment she was suffering, and that she was unlawfully retaliated against by Defendants who allegedly, with the help of the beverage manager, falsified customer complaints against her.

         DISCUSSION

         I. Application to Proceed In Forma Pauperis

         Plaintiff filed this instant action and attached a financial affidavit to her application and complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff's financial affidavit pursuant to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result, Plaintiff's request to proceed in forma pauperis in federal court is granted.

         II. Screening the Complaint

         Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to 28 U.S.C. § 1915(e). Specifically, 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/third party plaintiff who is immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Moreover, “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), 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).

         The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be used to supply an essential element of the claim absent from the complaint. Bruns v. Nat'l Credit Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

         Rule 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. Twombley, 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, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 1949. 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.

         III. Instant Complaint

         It appears that Plaintiff seeks to pursue claims of harassment, discrimination, and retaliation on the basis of her religion, gender, disability, and age under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). Title VII, ADA, and ADEA discrimination claims require a showing of an unlawful employment practice such as, inter alia, discriminating against an individual with respect to his or her terms, conditions, privileges, compensation, or employment opportunities, because of such individual's religion, gender, age, or disability. Title VII, the ADA, and the ADEA limit civil liability to the employer. See 42 U.S.C. § 2000e-2(a), § e-5(g). See also 42 U.S.C. § 12112; 29 U.S.C. § 623. Plaintiffs cannot sue individuals under Title VII, the ADA or the ADEA. See Miller v. Maxwell's Intern. Inc., 991 F.2d 583 (9th Cir. 1993) (“[I]ndividual defendants cannot be held liable for damages under Title VII”); Steshenko v. Albee, 42 F.Supp.3d 1281, 1290 (N.D. Cal. 2014) (“The ADA, however, does not authorize the recovery of monetary damages as to individual defendants.”); Miller v. Maxwell's Int'l, 991 F.2d 583, 587-88 (9th Cir.1993). (holding that individual defendants cannot be held liable for damages under the ADEA). Rather, Plaintiff may only bring suit against her employer, who is liable for the actions of its employees under the respondeat superior theory of liability. Therefore, Plaintiff's claims against Defendants Shannon Fitzmyer, Sujoy Brahma, and Bill Miller should be dismissed with prejudice. The Court will, however, screen Plaintiff's complaint to determine if she has sufficiently alleged claims of discrimination, harassment and retaliation against Defendant Luxor.

         A. ...


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