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
matter is before the Court on Plaintiff's Amended
Complaint (ECF No. 6), filed on October 16, 2019. The Court
previously granted Plaintiff's request to proceed in
forma pauperis and dismissed his complaint without
prejudice for failure to state a claim for relief. (ECF No.
5). He was granted the opportunity to amend and the instant
Amended Complaint (ECF No. 6) is ripe for the Court's
screening pursuant to § 1915(e).
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
again attempts to bring claims under Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment
Act of 1967. See Amended Complaint. (ECF No. 6).
Claims under both statutes invoke the Court's federal
jurisdiction. However, he fails to attach the dismissal and
right to sue notice that he claims was issued by the EEOC on
August 23, 2018. Nevertheless, even assuming his
Plaintiff's employment discrimination complaint pursuant
to Title VII and the ADEA is timely, the fatal flaw in the
Amended Complaint is it completely lacks sufficient factual
allegations to state a claim.
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
not clear whether Plaintiff 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. Moreover, yet again, Plaintiff's Amended
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
reasons stated above, the Amended 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 the deficiencies
identified can be cured, the Court will allow Plaintiff an
opportunity to file a second amended complaint to the extent
he believes that he can state a claim.
IT IS ORDERED that:
Amended Complaint is DISMISSED WITHOUT
PREJUDICE providing Plaintiff with leave to amend.
Plaintiff will have until January 21, 2020,
to file an amended complaint, if the noted deficiencies can
be corrected. If Plaintiff chooses to amend the complaint,
Plaintiff is informed that the Court cannot refer to a prior
pleading (i.e., the original complaint) in order to make the
amended complaint complete. This is because, as a general
rule, an amended complaint supersedes the original complaint.
Local Rule 15-1(a) requires that an amended complaint be
complete in itself without reference to any prior pleading.
Once a plaintiff files an amended complaint, the original
complaint no longer serves any function in the case.
Therefore, in an amended complaint, as in an original
complaint, each claim and the involvement of each Defendant
must be sufficiently alleged.
Failure to comply with this order will result in the