United States District Court, D. Nevada
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) and Motion for Accelerated Approval
and Processing (ECF No. 3).
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
case, Plaintiff attempts to bring claims under Title VII of
the Civil Rights Act of 1964, the U.S. Constitution and
Nevada Constitution via 42 U.S.C. § 1983, USERRA, and
assorted state law claims under NRS 613.200, NRS 200.510, NRS
608.020, NRS 608.040, NRS 608.050, NRS 608.180. See
Compl. (ECF No. 1-1).
appears to claim he was wrongfully terminated from his
employment as a third grade teacher by Elaine Kelley,
Principal of Somerset Academy Aliante Charter School. He
alleges that his employment ended on August 16, 2019 after he
had provided information regarding a revoked substitute
certificate from the State of Arizona and constitutional
violations by the Arizona State Board of Education. Further,
he claims he was required to take all of his belongings
during the time of after-school student pick ups in public
view of the staff and his assigned students. Plaintiff also
alleges he was discriminated against due to his gender, race,
and military service. He further alleges that he submitted a
charge to the EEOC. Additionally, Plaintiff alleges he has
not been paid his final wages.
Plaintiff's Title VII discrimination claims, he
conclusorily states that he filed a charge with the EEOC, but
does not attach either the charge or the notice of right to
sue letter. Without that information, the Court is unable to
determine that he has timely exhausted his administrative
remedies prior to filing this action. See 42 U.S.C.
§ 2000e-5(f)(1). Additionally, to the extent Plaintiff
seeks to allege a Title VII claim against an individual
defendant, that is not permitted under Title VII. See
Miller v. Maxwell's Intern. Inc., 991 F.2d 583 (9th
Cir. 1993) (“[I]ndividual defendants cannot be held
liable for damages under Title VII”). Rather, Plaintiff
may only bring suit against his former employer, who may be
found liable for the actions of its employees under the
respondeat superior theory of liability. For his USERRA
claim, Plaintiff fails to state sufficient facts for the
Court to determine if that statute's protections are
invoked here as he does not appear to have been denied
reinstatement or otherwise allege any protected activity.
Plaintiff's constitutional claims regarding violations of
equal protection and due process, they appear to be brought
under 42 U.S.C. § 1983, which provides a mechanism for
the private enforcement of substantive rights conferred by
the Constitution and federal statutes. Graham v.
Connor, 490 U.S. 386, 393-94 (1989). However, Plaintiff
does not assert facts that support a claim under the 14th
Amendment, as he has not alleged that he was deprived of
life, liberty, or property without due process. U.S. Const.
amend XIV. Further, Plaintiff did not allege that Defendants
acted under “color of law, ” which is not
plausible given that Defendants are a private employer and
its principal. West v. Atkins, 487 U.S. 42, 48-49
reasons stated above, the complaint does not state a claim
for which relief can be granted under either Title VII,
USERRA, or Section 1983. With regard to Plaintiff's
Nevada law-based claims - defamation, breach of contract,
wrongful termination, and failure to pay last wages and
penalties - this Court does not have jurisdiction as state
law governs, not federal law, and the Court will not exercise
supplemental jurisdiction, as the court is dismissing
plaintiff's federal claims. See 28 U.S.C. §
1331; 28 U.S.C. § 1367 (a federal court may exercise
supplemental jurisdiction over state claims if the court has
original jurisdiction over related claims).
Court notes that Plaintiff has not articulated any federal
law that protects him from wrongful termination and under
Nevada law, employment is presumed to be at-will. Yeager
v. Harrah's Club, Inc., 897 P.2d 1093, 1095 (Nev.
1995). To overcome this presumption, an employee must provide
evidence that his employer made oral promises of long-term
employment. Id. at 1096. With a few exceptions for
public policy concerns, an at-will employee can be terminated
for any reason or for no reason. Martin v. Sears, Roebuck
& Co., 899 P.2d 551, 553- 54 (Nev. 1995). As
Plaintiff has not provided any evidence to rebut the at-will
presumption, his wrongful termination claim is not plausible
on its face. Further, to the extent Plaintiff is claiming
wrongful termination based on discrimination, NRS §
613.330 contains the appropriate remedy. Sands Regent v.
Valgardson, 777 P.2d 898, 200 (Nev. 1989) (refusing to
recognize a wrongful termination cause of action based on age
discrimination where the employee could recover under federal
and state discrimination statutes).
it is not clear that the deficiencies identified can be
cured, the Court will allow Plaintiff an opportunity to file
an amended complaint to ...