Freeman v. County of Sacramento Dept of Human Assistance ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BENNIE FREEMAN, No. 2:19-cv-02418 KJM CKD (PS) 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 COUNTY OF SACRAMENTO DEPT. OF HUMAN ASSISTANCE, 14 Defendant. 15 16 Plaintiff, proceeding pro se, has filed a First Amended Complaint (“FAC”, ECF No. 21) 17 after his original complaint was dismissed for failure to state claim. (See ECF No. 17.) Plaintiff 18 claims he was discriminated against in violation of Title VII and the California Fair Employment 19 and Housing Act (Gov. Code § 12900 et. seq.) (“FEHA”) by being denied promotional 20 opportunities due to his race. 21 Before the court is defendant’s motion to dismiss the FAC, which is fully briefed. (ECF 22 Nos. 22, 23, 25.) On September 16, 2020, pursuant to Local Rule 230(g), the undersigned took 23 the matter under submission. (ECF No. 26.) 24 In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a 25 complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it 26 must contain factual allegations sufficient to “raise a right to relief above the speculative level.” 27 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something 28 more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable 1 | right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 2 | 235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted as true, to 3 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 4 | (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 5 | factual content that allows the court to draw the reasonable inference that the defendant is liable 6 | for the misconduct alleged.” Id. 7 Having reviewed the briefs and record, the undersigned finds that the FAC does not cure 8 || the defects of the original complaint as set forth in the May 19, 2020 findings and 9 | recommendations. (See ECF No. 17.) As plaintiff has had one opportunity to amend and it does 10 | not appear further amendment would cure the pleading’s defects, the FAC should be dismissed 11 | with prejudice for failure to state a claim. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Defendants’ motion to dismiss the First Amended Complaint (ECF No. 22) be 14 granted; and 15 2. This action be dismissed with prejudice for failure to state a claim. 16 These findings and recommendations are submitted to the United States District Judge 17 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 18 | after being served with these findings and recommendations, plaintiff may file written objections 19 | with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 21 | failure to file objections within the specified time may waive the right to appeal the District 22 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991). 23 | Dated: November 11, 2020 dp. A. fe 4 CAROLYN K DELANEY 25 UNITED STATES MAGISTRATE JUDGE 26 47 || 2/freeman2418.mtd_fac 28