United States District Court, D. Nevada
CHARLES J. CLARK, JR., Plaintiff,
CLARK COUNTY HUMAN RESOURCE DIVISION, et al., Defendant(s).
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 1915 Plaintiff 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 submitted a
complaint. (ECF No. 1-1).
In Forma Pauperis Application
filed the affidavit required by § 1915(a). (ECF No. 1).
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). The Clerk's Office is further
INSTRUCTED to file the complaint on the
docket. The Court will now review Plaintiff's complaint.
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
courts are courts of limited jurisdiction and possess only
that power authorized by the Constitution and statute.
See Rasul v. Bush, 542 U.S. 466, 489 (2004).
Pursuant to 28 U.S.C. § 1331, federal courts have
original jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties of the United
States.” Cases “arise under” federal law
either when federal law creates the cause of action or where
the vindication of a right under state law necessarily turns
on the construction of federal law. Republican Party of
Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir.
2002). Whether federal-question jurisdiction exists is based
on the “well-pleaded complaint rule, ” which
provides that “federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987). In this case, Plaintiff attempts to bring claims
under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967. See Compl.
(ECF No. 1-1). Claims under both statutes invoke the
Court's federal jurisdiction.
determined that federal-question jurisdiction exists under
the well-pleaded complaint rule, the Court now turns to the
sufficiency of the factual allegations to state a claim. In
order to state a Title VII discrimination claim, Plaintiff
must allege that: (a) he belonged to a protected class; (b)
he was qualified for his job; (c) he was subjected to an
adverse employment action; and (d) similarly situated
employees not in his protected class received more favorable
treatment. Moran v. Selig, 447 F.3d 748, 753 (9th
Cir.2006) (citing Kang v. U. Lim Am., Inc., 296 F.3d
810, 818 (9th Cir.2002)). See 42 U.S.C. § 2000e-3(e).
order to state a failure-to-hire/promote disparate treatment
claim under the ADEA, Plaintiff must allege: (a) that he is a
member of a protected class; (b) he was qualified for the
position; (c) despite his qualifications, he was denied the
position; and (d) subsequently, the position was filled by
someone younger than Plaintiff. See generally McDonnell
Douglas, 411 U.S. 792, 802 (1973); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 142
Complaint, Plaintiff attaches the dismissal and right to sue
issued by the EEOC on August 23, 2018. The Court may take
judicial notice of this document. See,
e.g., Van Buskirk v. CNN, 284 F.3d 977, 980
(9th Cir. 2002); Mack v. South Bay Beer Distribs.,
798 F.2d 1279, 1282 (9th Cir. 1986) (finding that
“court[s] may take judicial notice of ‘records
and reports of administrative bodies' ”),
overruled on other grounds by Astoria Fed. Sav. &
Loan Ass'n v. Solimino, 501 U.S. 104 (1991);
Mazzorana v. Emergency Physicians Med. Grp., Inc.,
2:12-cv- 01837-JCM-PAL; 2013 WL 4040791, at *5 n.3 (D. Nev.
Aug. 6, 2013) (taking judicial notice of EEOC proceedings and
documents submitted therein). Within 90 days of receipt of
the dismissal and right-to-sue letter from the EEOC, an
individual may file a lawsuit against the respondent under
federal law based on Title VII in federal or state court. 29
C.F.R. § 1601.28(e)(1). On August 23, 2019, the U.S.
Equal Employment Opportunity Commission (“EEOC”)
issued a Dismissal and Notice of Right to Sue letter to
Plaintiff. (ECF No. 1-2, 2). Plaintiff subsequently filed the
instant action on September 9, 2019. Therefore,
Plaintiff's employment discrimination complaint pursuant
to Title VII is timely.
days of filing a charge with the EEOC, but no later than 90
days after one receives notice that the EEOC's
investigation is concluded, one may file a lawsuit in court
pursuant to ADEA. Plaintiff noted that 60 days or more have
elapsed since filing his charge of age discrimination with
the EEOC regarding Defendants' alleged discriminatory
conduct. (ECF No. 1-1, 5). For the reasons stated above,
Plaintiff's employment discrimination complaint pursuant
to ADEA is timely.
Plaintiff's Complaint seeks to state claims against two
individual defendants. There is no individual liability for
discrimination under federal law. Miller v. Maxwell's
Intern. Inc., 991 F.2d 583 (9th Cir. 1993) (holding
individual defendants cannot be liable for damages under
Title VII and ADEA). Rather, Plaintiff may only bring suit
against the employer entity, who may be found liable for the
actions of its employees under the respondeat superior theory
Plaintiff's Title VII and ADEA claims lack sufficient
factual allegations for the Court to find that he can state a
plausible claim for relief. He attaches a letter (ECF No.
1-2) that appears to indicate that he is attempting to state
a failure to hire/promote claim. It is not clear whether he
was qualified for the position he was seeking and that
similarly situated applicants not in his protected class
received more favorable treatment in the hiring process. For
the reasons stated above, the complaint does not state a
claim for which relief can be granted under either Title VII
or the ADEA. Although it is not clear that ...