United States District Court, D. Nevada
JASON E. CARR, Plaintiff,
PROGRESS RAIL SERVICES, and EASTRIDGE WORKFORCE SOLUTIONS, Defendant.
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 a short form application 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 Plaintiff’s
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, fail 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 attaches a Right to Sue letter issued by the Equal
Employment Opportunity Commission (the “EEOC”)
dated June 6, 2019. Plaintiff’s Complaint was filed on
September 6, 2019 and therefore is timely. Filing a
also states that he worked for Eastridge Workforce Solutions
of Las Vegas, Nevada, who is “responsible for engaging
… [Plaintiff] with a client that has racial
discrimination tendencies.” ECF No. 1-1. Plaintiff
explains that he was working for Progress Rail Services
through Eastridge Workforce Solutions. Finally, Plaintiff
states that while placed at Progress Rail Services through
Eastridge a Caucasian male approached him and referred to him
using racial slurs or epithets. Id.
to state a prima facie Title VII race discrimination claim,
Plaintiff must allege that he was (1) a member of a protected
class, (2) performing according to the employer’s
legitimate expectations, (3) suffered an adverse employment
action, and (4) similarly situated employees outside his
protected class were treated more favorably. Pulliam v.
United Airlines, Inc., 2012 WL 3025087 at *3 (D.Nev.
2012), aff’d 585 F. App’x. 408
(9th Cir.2014); McDonnell Douglas Corp v. Green, 411
U.S. 792, 802 (1973). To state a Title VII hostile work
environment claim, Plaintiff must allege that the conduct
complained of was so severe or pervasive as to alter the
condition of his employment. Ariz. ex rel. Horne v. Geo
Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016)(Title
VII claim requires plaintiff to establish conduct that was
“sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working
environment”). Here, Plaintiff fails to allege he
suffered an adverse employment action of any kind, that
similarly situated employees outside his protected class were
treated more favorably than he was, and/or that the use of
racially charged language was sufficiently severe or
pervasive to alter his working environment. For these
reasons, Plaintiff’s Complaint (ECF No. 1-1) will be
dismissed without prejudice.
Plaintiff chooses to file an amended complaint, the document
must be titled “Amended Complaint.” The amended
complaint must contain a short and plain statement describing
the facts underlying case conduct that constitutes
discrimination and/or harassment. Fed.R.Civ.P. 8(a)(2).
Although the Federal Rules of Civil Procedure adopt a
flexible pleading standard, Plaintiff still must give the
Defendants fair notice of the Plaintiff’s claims
against it and Plaintiff’s entitlement to relief.
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 Plaintiff’s
amended complaint complete.
THEREFORE ORDERED that Plaintiff’s 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 granting leave to proceed in
forma pauperis does not extend to the issuance of
subpoenas at government expense.
FURTHER ORDERED that the Complaint (ECF No. 1-1) is DISMISSED
without prejudice for failure to state a claim upon which
relief can be granted, with leave to amend. If Plaintiff
chooses to file an amended complaint, Plaintiff must file the
amended complaint within 30 days from the date of this Order.