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).
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
case, Plaintiff attempts to bring claims under the Americans
with Disabilities Act (“ADA”). See
Compl. (ECF No. 1-1). Claims under this statute invoke the
Court's federal jurisdiction. Having 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.
Complaint alleges incidents dating back to 2012, which were
litigated in a prior lawsuit in this District Court,
Martinez v. MGM Grand Hotel LLC, Case No.
2:17-cv-2454-JCM-GWF. In that case, the Court granted
defendant's motion to dismiss and dismissed the case
without prejudice due to plaintiff's failure to oppose
the motion to dismiss. (ECF No. 14). In ruling on
Plaintiff's motion for reconsideration, the Court denied
reconsideration and noted that Plaintiff “is free to
file a new action in an appropriate forum that properly
asserts her stated claims.” (ECF No. 24). As such, the
Court finds that claim preclusion does not apply and will
screen her complaint.
appears to seek to assert discrimination and/or failure to
accommodate claims under the ADA. The ADA prohibits covered
employers from discriminating against “a qualified
individual on the basis of disability.” 42 U.S.C.
§ 12112(a). An ADA discrimination claim follows the
familiar burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973). Plaintiff must establish that: (1) she has a
disability within the meaning of the ADA; (2) she is
otherwise qualified to perform the essential functions of her
employment, with or without reasonable accommodation; and (3)
she suffered an adverse action because of the disability.
See Hutton v. Elf Etochem No. Am., Inc., 273 F.3d
884, 895 (9th Cir. 2001). As for the failure to accommodate
claim, Plaintiff must establish that: (1) she requested an
accommodation due to a disability or her employer knew or had
reason to know that she had a disability, was experiencing
workplace problems because of the disability, and it
prevented her from submitting a request; and (2) her employer
could have made a reasonable accommodation that would have
enabled her to perform the essential functions of the job.
See Barnett v. U.S. Airways, Inc., 228 F.3d 1105,
1112-14 (9th Cir. 2000), vacated on other grounds by U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002).
Complaint lacks sufficient factual allegations for the Court
to find that she can state a plausible claim for relief. She
attaches a checklist of essential functions for the Kitchen
Worker positions from which she was terminated. (ECF No. 1-1,
28). It indicates that the position requires lifting of up to
60 pounds. Id. Plaintiff's Complaint alleges
that she had a permanent restriction of no lifting over 18
pounds. Further, the ADA does not obligate the employer to
accommodate the employee by excusing her from the performance
of essential functions. See Dark v. Curry County
(9th Cir. 2006) 451 F.3d 1078, 1089 (“ADA does not
require an employer to exempt an employee from performing
essential functions or to reallocate essential functions to
other employees”). For the reasons stated above, the
complaint does not state a claim for which relief can be
granted under the ADA. Although it is not clear that the
deficiencies identified can be cured, the Court will allow
Plaintiff an opportunity to file an amended complaint to the
extent she believes that she can state a claim.