United States District Court, D. Nevada
J. KOPPE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se and has
requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. Docket No. 2. Plaintiff
has also submitted a complaint. Docket No. 2-2.
In Forma Pauperis Application
filed the affidavit required by § 1915(a). Docket No. 2.
Plaintiff has shown an inability to prepay fees and costs or
give security for them. Accordingly, the request to proceed
in forma pauperis will be granted pursuant to 28
U.S.C. § 1915(a).
Screening the Complaint
granting an application to proceed in forma
pauperis, courts additionally screen the complaint
pursuant to § 1915(e). 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 who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). When a court dismisses a complaint under
§ 1915, 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).
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.
Lab. Corp. of Am., 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.
Twombly, 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, 556 U.S. 662, 678
(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, 556 U.S. at 679. Mere recitals of the
elements of a cause of action, supported only by conclusory
allegations, do not suffice. Id. at 678. Secondly,
where the claims in the complaint have not crossed the line
from conceivable to plausible, the complaint should be
dismissed. Twombly, 550 U.S. at 570. Allegations of
a pro se complaint are held to less stringent
standards than formal pleadings drafted by lawyers. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
Title VII Claims
alleges that Defendant violated Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §
2000e-5, and the Nevada anti-discrimination statue, NRS
§ 613.310, when he was “treated disparately,
subjected to hostile work environment, and subsequently
retaliatorily terminated.” Docket No. 2-2 at 2.
a plaintiff can file an action for an alleged violation of
Title VII, he must file a timely charge of discrimination
with the Equal Employment Opportunity Commission within 300
days of the discriminatory act and then file suit within
ninety days of receiving a right-to-sue letter. 42 U.S.C.
§ 2000e-5(e)(1) & (f)(1). “This ninety-day
period is a statute of limitations.” Nelmida v.
Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir.1997),
cert. denied, 522 U.S. 858 (1997). Title VII claims
filed beyond the ninety-day period are subject to dismissal
under Rule 12(b)(6). See e.g., Scholar v. Pac.
Bell, 963 F.2d 264, 266 (9th Cir. 1992); see also
Ortez v. Washington County, State of Oregon, 88 F.3d
804, 807 (9th Cir. 1996) (“If the claimant does not
file within this 90-day period, the action is
barred.”). Compliance with the 90-day filing
requirement is a condition precedent to filing in federal
court, which acts like a statute of limitations. See,
e.g., Million v. Frank, 47 F.3d 385, 389 (10th
Plaintiff submits that he experienced intentional adverse
disciplinary acts and humiliating statements, was denied
benefits, rights, and privileges afford to other employees,
and was retaliatorily terminated by Defendant because of his
race, national origin, and disability. Docket No. 2-2 at
6-11. Plaintiff submits that Defendant's actions were
willful and that Defendant knew about the conduct of its
employees, but failed to take corrective action. Id.
at 6-8, 10. Plaintiff submits that he first filed his Charge
of Discrimination on June 30, 2014, was terminated on
December 20, 2015, and received Notice of Right to Sue Letter
on April 14, 2016. Id. at 2; see also
Docket No. 2-3 at 4, 6, 10. Plaintiff filed his application
to proceed in forma pauperis and his complaint on
June 1, 2018. Docket No. 2. Accordingly, Plaintiff received
his right to sue letter more than two years before he filed
suit in this Court.
light of the above, the complaint is hereby
DISMISSED without prejudice. Although it
appears unlikely that Plaintiff can overcome the above
deficiency, the Court will permit him the opportunity to
amend the complaint if he believes he can do so.