United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Application for
Leave to Proceed in Forma Pauperis (ECF No. 1),
filed on June 26, 2017.
alleges that on November 5, 2015, she was wrongfully
terminated from the Valley Health System Summerlin Hospital.
She states that she is African American and was hired as a
traveling case manager through United Staffing Solutions. She
alleges that she reported to work at Spring Valley Hospital
on November 5, 2015 and received a telephone call from her
supervisor informing her that she was supposed to report to
Centennial Hospital on that day. She alleges that management
did not instruct her to report to Centennial Hospital prior
to November 5, 2015. Defendants terminated her for refusing
to report to work at Centennial Hospital. Plaintiff sets
forth causes of action for wrongful termination, breach of
contract, and discrimination.
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 XXXX 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.
complaint alleges claims of wrongful termination, breach of
contract, and discrimination based on race. She attached the
Notice of Right to Sue letter she received from the EEOC on
March 31, 2017 and filed this action on June 26, 2017.
See Complaint (ECF No. 1-1), 7. Thus, it appears
that Plaintiff exhausted her administrative remedies.