Raja v. Las Vegas Metropolitan Police Department ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 NOSHERWAN KHAN RAJA, Case No. 2:19-CV-00757-GMN-EJY 5 Plaintiff, ORDER 6 v. 7 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, 8 Defendants. 9 10 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. 11 § 1915 to proceed in forma pauperis. ECF No. 2. Plaintiff also submitted a Complaint attached to 12 his in forma pauperis application on May 2, 2019. 13 I. In Forma Pauperis Application 14 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay 15 fees and costs or give security for them. ECF No. 2. Accordingly, the request to proceed in forma 16 pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s 17 Complaint. 18 II. Screening the Complaint 19 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 20 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 21 and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted 22 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 23 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 24 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 25 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 27 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them 1 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 2 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 3 556 U.S. at 678). 4 In considering whether the complaint is sufficient to state a claim, all allegations of material 5 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 6 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 7 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 8 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 9 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 10 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 11 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 12 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Here, Plaintiff alleges claims of religious and national origin discrimination against 14 Defendant. To sufficiently allege a prima facie case of discrimination in violation of Title VII to 15 survive a § 1915 screening, Plaintiff must allege: (a) he belongs to a protected class; (b) he was 16 qualified for the job for which he applied; (c) he was subjected to an adverse employment action; 17 and (d) similarly situated employees not in his protected class received more favorable treatment. 18 See Shepard v. Marathon Staffing, Inc., 2014 U.S. Dist. Lexis 76097, *5 (D. Nev. June 2, 2014) 19 (citing Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006)). In screening Plaintiff’s complaint and 20 construing it liberally, the Court looks in part to the attachments provided. See Swartz v. KPMG 21 LLP, 476 F.3d 756, 763 (9th Cir. 2007) (courts may generally consider allegations contained in 22 pleadings, as well as exhibits attached to the complaint). Plaintiff’s complaint attaches his right to 23 sue letter as well as a letter from the EEOC that indicates Plaintiff’s filing with the Nevada Equal 24 Rights Commission was untimely. However, the EEOC letter refers only to when Plaintiff “signed 25 and filed” his charge of discrimination. There is no information about when Plaintiff commenced 26 his efforts to file such a charge. Thus, it may be that Plaintiff’s claims are timely or untimely. 27 1 However, even if Plaintiff’s claims are timely, his religion and national original race 2 discrimination claims fail to sufficient allege facts upon which relief may be granted pursuant to 3 the standards established in Iqbal, 556 U.S. at 679. That is, Plaintiff must demonstrate a plausible 4 claim for relief, which is more than a “mere possibility of misconduct.” Id. Further, “[a] claim has 5 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 6 reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Plaintiff 7 has not met the pleading standards or alleged sufficient facts to establish more than he is a member 8 of a protected class and that he suffered an adverse employment action. 9 The Court therefore will dismiss Plaintiff’s complaint without prejudice for the Plaintiff to 10 file an amended complaint that meets the jurisdiction and pleading requirements. 11 If Plaintiff chooses to file an amended complaint, the document must be titled “Amended 12 Complaint.” The amended complaint must contain a short and plain statement of the grounds for 13 the Court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Additionally, the amended complaint must 14 contain a short and plain statement describing the underlying case and Defendant’s conduct that 15 constitutes discrimination. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil 16 Procedure adopt a flexible pleading standard, Plaintiff still must give the Defendant Las Vegas 17 Metropolitan Police Department fair notice of the Plaintiff’s claims against it and Plaintiff’s 18 entitlement to relief. 19 Additionally, Plaintiff is advised that if he files an amended complaint, the original 20 complaint (ECF No. 2-1) no longer serves any function in this case. As such, the amended 21 complaint must be complete in and of itself without reference to prior pleadings or other documents. 22 The Court cannot refer to a prior pleading or other documents to make Plaintiff’s amended 23 complaint complete. 24 IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 25 Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this 26 action. Plaintiff is permitted to maintain this action to conclusion without the necessity of 27 1 prepayment of any additional fees or costs or the giving of a security for fees or costs. This Order 2 granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 3 government expense. 4 IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s complaint 5 (ECF No. 1-1). 6 IT IS FURTHER ORDERED that the Complaint (ECF No. 2-1) is DISMISSED without 7 prejudice for failure to state a claim upon which relief can be granted, with leave to amend. If 8 Plaintiff chooses to file an amended complaint, Plaintiff must file the amended complaint within 9 30 days from the date of this Order. Failure to comply with this Order may result in a 10 recommendation that this action be dismissed. 11 12 DATED THIS 16th day of August, 2019. 13 14 15 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27