United States District Court, D. Nevada
J. YOUCHAH, 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. ECF No. 1. Plaintiff also
attached a Complaint to his in forma pauperis
application. ECF No. 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915 showing
an inability to prepay fees and costs or give security for
them. ECF No. 1. Accordingly, the request to proceed in
forma pauperis will be granted pursuant to 28 U.S.C.
§ 1915(a). The Court will now review Plaintiffs
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
"contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face."
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court liberally construes pro se complaints and may only
dismiss them "if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting
Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P"ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave
to amend the complaint with notice regarding the
complaint's deficiencies. Cato v. United States,
70 F.3d 1103, 1106 (9th Cir. 1995).
Plaintiff alleges a claim of "disability
discrimination" against Defendant. ECF No. 1-1. An
individual planning to file a lawsuit under federal law
alleging discrimination on the basis of disability must first
file a charge with the Equal Employment Opportunity
Commission ("EEOC") within 180 days of the
discriminatory act, or within 300 days if there is a State or
local law that provides relief for discrimination on the
basis of disability. U.S. Equal Employment Opportunity
Commission, Filing a Lawsuit,
https://eeoc.gov/employees/lawsuit.cfim (last visited Sept.
3, 2019). The EEOC will issue a Notice of Right to Sue at the
time it closes its investigation, which gives the aggrieved
party permission to file a lawsuit in federal or state court.
Id. Once the party receives a Notice of Right to
Sue, it must file a lawsuit within 90 days. Id.
Here, Plaintiff did not attach a right to sue letter from the
EEOC. There is no information about when, or if, Plaintiff
commenced his efforts to file such a charge. Thus, it may be
that Plaintiffs claim is timely or untimely.
screening Plaintiffs complaint and construing it liberally,
the Court looks in part to the attachments provided. See
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)
(courts may generally consider allegations contained in
pleadings, as well as exhibits attached to the complaint). To
sufficiently allege a prima facie case of
discrimination in violation of the Americans with
Disabilities Act ("ADA"), the Plaintiff must
demonstrate that (1) he is disabled within the meaning of the
ADA; (2) he is a qualified individual able to perform the
essential functions of the job with reasonable accommodation;
and (3) he suffered an adverse employment action because of
his disability. Nunes v. Wal-Mart Stores, Inc., 164
F.3d 1243, 1246 (9th Cir. 1999). Here, it seems Plaintiff
attached to his complaint photos of text messages spanning
two different conversations between himself and a supervisory
figure employed with the Defendant. In the first
conversation, Plaintiff explains to his former supervisor
that "today is [his] treatment day ... It's [sic]
starts at 9am. It takes a little time to hook me up to the
machine." Defendant replied and told Plaintiff "do
not worry about that come in the afternoon from 12-3pm
instead. Is this a weekly medical procedure? Send me your
weekly medical schedule please. I need to schedule this long
term." In the second conversation, Defendant
apologetically explains to Plaintiff that he does not believe
this is a good match because Conex West in Las Vegas is going
through a "very critical building period in [its]
business." Defendant states that it is "[his] fault
for not asking more questions initially." Finally,
Defendant states that "if Conex West ever gets to the
point where it can "have our representatives become home
based employees you will be my first choice . . . [b]eing
present for all five days during the work week is mandatory
for our success at this time in our business cycle."
disability discrimination claim fail to sufficient allege
facts upon which relief may be granted pursuant to the
standards established in Iqbal, 556 U.S. at 679.
That is, Plaintiff must demonstrate a plausible claim for
relief, which is more than a "mere possibility of
misconduct." Id. Further, "[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. at 678. Read liberally, Plaintiff has
sufficiently plead that he is disabled within the meaning of
the ADA and that he suffered an adverse employment action
because of his disability. However, Plaintiff has failed to
sufficiently plead that he is a qualified individual able to
perform the essential functions of the job with or without a
reasonable accommodation. Accordingly, Plaintiff has not met
the pleading standards or alleged sufficient facts to
establish more than he is a member of a protected class and
that he suffered an adverse employment action.
Court therefore will dismiss Plaintiffs complaint without
prejudice for the Plaintiff to file an amended complaint that
meets the jurisdiction requirements.
Plaintiff chooses to file an amended complaint, the document
must be titled "Amended Complaint." The amended
complaint must contain a short and plain statement of the
grounds for the Court's jurisdiction. Fed.R.Civ.P.
8(a)(1). Additionally, the amended complaint must contain a
short and plain statement describing the underlying case and
Defendant's conduct that constitutes discrimination.
Fed.R.Civ.P. 8(a)(2). Although the Federal Rules of Civil
Procedure adopt a flexible pleading standard, Plaintiff still
must give the Defendant Conex West fair notice of the
Plaintiffs claims against it and Plaintiffs entitlement to
Plaintiff is advised that if he files an amended complaint,
the original complaint (ECF No. 1-1) no longer serves any
function in this case. As such, the amended complaint must be
complete in and of itself without reference to prior
pleadings or other documents. The Court cannot refer to a
prior pleading or other documents to make Plaintiffs amended
THEREFORE ORDERED that Plaintiffs Application for Leave to
Proceed In Forma Pauperis (ECF No. 1) is GRANTED.
Plaintiff will not be required to pay the filing fee in this
action. Plaintiff is permitted to maintain this action to
conclusion without the necessity of prepayment of any
additional fees or costs or the giving of a security for fees
or costs. This Order ...