United States District Court, D. Nevada
ORDER, SECOND AMENDED COMPLAINT SCREENING [ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Terri Gomez's second amended
complaint. (ECF No. 9). For the reasons discussed below,
Plaintiff's second amended complaint is dismissed without
filed an application to proceed in forma pauperis
and a complaint on April 1, 2019. (ECF No. 2, 2-1). Before
the Court had the chance to screen the original complaint,
Plaintiff filed an amended complaint on April 19, 2019. (ECF
No. 5). The Court granted Plaintiff's in forma
pauperis application an dismissed her amended complaint
without prejudice. (ECF No. 7). The Court noted that the
amended complaint was not complete in itself because it did
not include many important facts contained in the original
complaint. (Id. at 2-3). The Court gave Plaintiff
until May 10, 2019 to file a second amended complaint.
(Id. at 5).
8, 2019, Plaintiff filed a motion to extend time to file the
second amended complaint. (ECF No. 8). Before the Court could
rule on the motion, Plaintiff filed her second amended
complaint on May 10, 2019. (ECF No. 9). Plaintiff also filed
documents indicating that she would seek to add new
allegations and parties to her second amended complaint. (ECF
Nos. 10, 11). Rather than screen the second amended
complaint, the Court granted Plaintiff's motion to extend
time to allow her to make any desired changes. (ECF No. 13).
The Court stated that if Plaintiff did not file a third
amended complaint by July 12, 2019, “the Court will
fully screen the second amended complaint.”
(Id. at 2, 4). To provide guidance to Plaintiff
regarding possible amendments to make in the third amended
complaint, the Court noted four major issues with the second
amended complaint: (1) it relies on references to the
original and first amended complaint, (2) it does not follow
a logical timeline, (3) it brings claims apparently outside
the Court's jurisdiction, and (4) it does not contain
sufficient details of Plaintiff's claims. (Id.
did not file a third amended complaint by the Court's
deadline. Therefore, the Court now screens the second amended
the Court grant an application to proceed in forma
pauperis, the Court must review the complaint to
determine whether it is frivolous, malicious, fails to state
a claim on which the Court may grant relief, or if it 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)).
the individuals, incidents, and dates at issue have changed
throughout the several versions of the complaint,
Plaintiff's case revolves around allegations regarding
employment discrimination. (ECF No. 9 at 1). Plaintiff, a
teacher, asserts that Clark County School District and its
employees have discriminated against Plaintiff based on her
race, sex, national origin, and disabilities in violation of
Title VII and the Americans with Disabilities Act.
(Id. at 1-8). The second amended complaint contains
46 pages of allegations regarding the actions of 17
Defendants over the period of approximately three years.
(Id. at 1-9, 11-56).
submitted one right to sue letter from the EEOC with her
original complaint (ECF No. 2-1 at 15), and she has not
submitted any additional letters with her subsequent
complaints. The right to sue letter was mailed on March 6,
2019. (Id.). Several of Plaintiff's allegations
in her second amended complaint arose after this date. (ECF
No. 9 at 48-54). It is also unclear whether even the
allegations arising before March 2019 are covered by the
right to sue letter. Plaintiff stated in her second amended
complaint that, “the EEOC ha[s] not given me all the
right to sue letters, nor has [the] Nevada Equal Rights
Commission…I have been filing discrimination
complaints since 2016 to [the] present at [the] NERC.”
(Id. at 57).
time that the Court initially looked at Plaintiff's
second amended complaint, caselaw stated that “a
failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal courts of
subject matter jurisdiction over the claim.” Jones
v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.
2009), abrogated by Fort Bend Cty., Texas v. Davis,
139 S.Ct. 1843 (2019); see also Myers-Desco v. Lowe's
HIW, Inc., 484 Fed.Appx. 169, 171 (9th Cir. 2012).
However, on June 3, 2019, the Supreme Court ruled that,
“Title VII's charge-filing requirement is a
processing rule, albeit a mandatory one, not a jurisdictional
prescription delineating the adjudicatory authority of
courts.” Fort Bend Cty., Texas v. Davis, 139
S.Ct. 1843, 1851 (2019). “A claim-processing rule may
be mandatory in the sense that a court must enforce the rule
if a party properly raises it… But an objection based
on a mandatory claim-processing rule may be forfeited if the
party asserting the rule waits too long to raise the
point.” Id. at 1849 (internal quotations
to exhaust administrative remedies is generally treated as an
affirmative defense that a plaintiff does not have to
specifically plead in a complaint. Jones v. Bock,
549 U.S. 199, 216 (2007). However, “[a] complaint may
be subject to dismissal under Rule 12(b)(6) when an
affirmative defense ... appears on its face.”
Id. at 215 (2007) (quoting Leveto v.
Lapina, 258 F.3d 156, 161 (3d Cir. 2001). That is
because “[a] complaint is subject to dismissal for
failure to state a claim if the allegations, taken as true,
show the plaintiff is not entitled to relief.”
failure to exhaust her administrative remedies appears on the
face of her complaint- she states that, “the EEOC ha[s]
not given me all the right to sue letters, nor has [the]
Nevada Equal Rights Commission.” (ECF No. 9 at 57).
Therefore, her complaint is subject to dismissal. However,
this deficiency may be cured in a third amended complaint by
Plaintiff only including claims based on incidents covered by
right to sue letters. In addition, the Court advises
Plaintiff to consider making additional amendments to clarify
her complaint. (See ECF No. 13 at 2-3).
and for good cause shown, IT IS ORDERED that Plaintiff's
second amended complaint (ECF No. ...