United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS [ECF
NO. 2] AND AMENDED COMPLAINT [ECF NO. 5]
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is pro se Plaintiff Terri Gomez's application
to proceed in forma pauperis (ECF No. 2) and amended
complaint (ECF No. 5). For the reasons discussed below,
Plaintiff's in forma pauperis application is
granted. However, Plaintiff's amended complaint is
dismissed without prejudice.
filings present two questions: (1) whether she may proceed
in forma pauperis under 28 U.S.C. § 1915(e) and
(2) whether her complaint states a plausible claim for
Plaintiff's In Forma Pauperis Is
plaintiff may bring a civil action “without prepayment
of fees or security therefor” if the plaintiff submits
a financial affidavit demonstrating that the plaintiff is
“unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). Plaintiff's
application states that she has an income of $1014 every two
weeks. (ECF No. 2 at 1). Plaintiff's monthly rent and car
payments total $1450. (Id. at 2). In addition, she
cares for two children, including paying various school fees.
(Id.). Based on this information, the Court finds
that Plaintiff is unable to pay fees in this case.
Plaintiff's application to proceed in forma
pauperis is granted.
Plaintiff's Amended Complaint Fails to State a Claim Upon
Which the Court May Grant Relief
1915 also requires that, should the Court grant an
application to proceed in forma pauperis, the Court
must review Plaintiff's complaint to determine whether
the complaint is frivolous, malicious, fails to state a claim
on which the Court may grant relief, or if the complaint
seeks damages against a defendant who is immune from that
relief. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil
Procedure 8 mandates that a claim must contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). To meet Rule
8's burden, a complaint must contain “sufficient
factual matter” establishing that the claim is facially
plausible. Ashcroft v. Iqbal, 556 U.S. 662, 663
(2009). Courts must liberally construe pleadings drafted by
pro se litigants. Resnick v. Warden Hayes, 213 F.3d
443, 447 (9th Cir. 2000) (citing Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
Comparing the Original and Amended Complaint
filed her original complaint with her in forma
pauperis application. (ECF No. 2-1). The original
complaint provides information about Defendants Misel,
Ertman, Mullaney, Perez, and Morse (Id. at 2-4);
indicates that this is a Title VII case (Id. at 4);
and states that Plaintiff's claims are based on unequal
terms and conditions of employment, retaliation, and
discrimination based on race, gender/sex, and national origin
(Id. at 5). The original complaint then contains a
six-page summary of facts from 2018 and 2019, with no
headings or other formatting to assist the Court in analyzing
the paragraphs. (Id. at 6-12). The original
complaint attaches a right to sue letter from the EEOC.
(Id. at 15).
filed an amended complaint on April 8, 2019. (ECF No. 5). The
amended complaint does not have the proper caption on the
first page as outlined by the Court to Plaintiff.
(Compare ECF No. 4 at 4 with ECF No. 5 at
1). The amended complaint lists seven new Defendants-Nicolas,
Burgess, O'Reilly, Perryman, Maidi, Oines, and Rosales.
(ECF No. 5 at 1). The amended complaint does not list the
original Defendants or provide any information about the new
Defendants at the beginning of the complaint. The amended
complaint does not cite Title VII, though Plaintiff does
indicate she is bringing claims for discrimination based on
race, sex, and disability. (Id. at 2). The amended
complaint then provides a six-page summary of facts from 2016
to 2019, again without headings or similar formatting.
(Id. at 2-7). The amended complaint does not mention
or attach the right to sue letter from the EEOC or contain a
request for relief.
The Amended Complaint Must Be Complete in Itself
a plaintiff files an amended complaint, ‘[t]he amended
complaint supersedes the original, the latter being treated
thereafter as non-existent.'” Rhodes v.
Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (quoting
Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967)). An
amended complaint must be “complete in itself,
including exhibits, without reference to the superseded
pleading.” LR 15-1.
original complaint was properly formatted and contained
important information like a basic description of the
Defendants, a citation to Title VII, and the EEOC right to
sue letter. (ECF No. 2-1). These things are not contained in
the amended complaint. (ECF No. 5). In addition, the two