United States District Court, D. Nevada
ORDER (DOCKET NOS. 1-1, 6)
J. Koppe, 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. Docket No. 6. Plaintiff also submitted a
complaint. Docket No. 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a).
Docket No. 6. 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 § 1915(a). The Clerk's Office is
INSTRUCTED to file the complaint on the
docket. The Court will now review Plaintiff's 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 Atl. 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 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. When 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
alleges that, four months after he began working for
Defendant in one of its restaurants, he reported that his
supervisor was discriminating against him because he is not
“of Spanish descent.” Docket No. 1-1 at 1, 3-4.
Plaintiff further alleges that Defendant failed to
investigate his report, so he filed a complaint with the
EEOC. Id. at 3-4. Plaintiff alleges that an
investigation into his claims began the next day and
ultimately led to his transfer. Id. at 4. Plaintiff
alleges that he felt compelled to accept the transfer, even
though he believed it was a retaliatory transfer.
Id. 4-5. Plaintiff further alleges that, upon being
transferred to another restaurant, he went from
“facilitating one of the [company's] most lucrative
departments . . . that grossed more in food sales than any
other property to washing dishes, cleaning the floor, [and]
waiting and bussing tables.” Id. at 5.
Plaintiff also alleges that he was given “slower shifts
so the busier shifts would be available for other hourly
employees and the general manager.” Id.
brings a retaliation claim pursuant to 42 U.S.C. § 1981.
Docket No. 1-1 at 7. Section 1981 “prohibits [racial]
discrimination in the ‘benefits, privileges, terms, and
conditions' of employment.” Surrell v.
California Water Serv. Co., 518 F.3d 1097, 1103 (9th
Cir. 2008) (quoting 42 U.S.C. § 1981(b)). Section 1981
further prohibits “racial discrimination in taking
retaliatory action.” Id. at 1107. “The
legal principles governing a [S]ection 1981 retaliation claim
and a Title VII retaliation claim are the same.”
Norman v. Clark Cty. Dep't of Juvenile Justice
Servs., 244 F.Supp.3d 1085, 1091 (D. Nev. 2017) (citing
Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th
Cir. 2003)). To state a claim for retaliation pursuant to
Title VII, a plaintiff must allege that “(1) [he]
engaged in a protected activity, such as the filing of a
complaint alleging racial discrimination, (2) the [employer]
subjected [him] to an adverse employment action, and (3) a
causal link exists between the protected activity and the
adverse action.” Manatt, 339 F.3d at 800.
alleges that he engaged in protected conduct when he
complained about racial discrimination by his supervisor,
that Defendant took an adverse action against him by
transferring him to another property where he had diminished
responsibilities and slower shifts, and that the transfer
occurred because he had complained about racial
discrimination. Docket No. 1-1 at 4-5, 7. Thus, the Court
finds that Plaintiff states a claim for retaliation pursuant
to Section 1981.
IT IS ORDERED that:
1. Plaintiff's request to proceed in forma
pauperis is GRANTED. Plaintiff will not
have to pay the filing fee of four hundred dollars ($400.00).
Plaintiff may maintain this action to conclusion without the
need for prepayment of any additional fees or costs or the
giving of a security therefor. This order granting leave to
proceed in forma pauperis shall not extend to the
issuance and/or service of subpoenas at government expense.
2. The Clerk of the Court shall file the Complaint and shall
issue Summons to Defendant, and deliver the same to the U.S.
Marshal for service. Plaintiff shall have twenty days to
furnish the U.S. Marshal with the required Form
USM-285. Within twenty days after receiving from
the U.S. Marshal a copy of the Form USM-285, showing whether
service has been accomplished, Plaintiff must file a notice
with the Court identifying whether Defendant was served. If
Plaintiff wishes to have service again attempted on an
unserved defendant, a motion must be filed with the court
identifying the unserved defendant and specifying a more
detailed name and/or address for the defendant, or whether
some other manner ...