United States District Court, D. Nevada
KELLY M. LANDIS, Plaintiff,
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)
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's Application
to Proceed in Forma Pauperis (#1), filed on October
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.
Application to Proceed In Forma Pauperis
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.
Screening the Complaint
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).
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)).
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.
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.