Lopez v. Iaela-Tokugawa ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 SAMUEL RENE LOPEZ, Case No. 2:24-cv-00876-NJK 7 Plaintiff(s), ORDER 8 v. [Docket Nos. 4, 11, 12] 9 TERESSA IAELA-TOKUGAWA, 10 Defendant(s). 11 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 12 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 4. 13 I. In Forma Pauperis Application 14 Plaintiff filed an affidavit required by § 1915(a). Docket No. 4. Plaintiff has shown an 15 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 16 in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is further 17 INSTRUCTED to file the complaint (Docket Nos. 4-1, 4-2) on the docket. The Court will now 18 review Plaintiff’s complaint. 19 II. Screening the Complaint 20 Upon granting an application to proceed in forma pauperis, courts additionally screen the 21 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 22 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 23 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 24 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 25 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 26 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 27 F.3d 1103, 1106 (9th Cir. 1995). 28 1 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 2 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 3 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 4 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 5 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 6 Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, 7 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 8 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 9 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 10 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 11 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 12 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 13 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 14 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 15 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 16 construction of pro se pleadings is required after Twombly and Iqbal). 17 A. CLAIMS AGAINST INDIVIDUAL DEFENDANTS 18 Plaintiff’s complaint alleges employment discrimination and he names as Defendants 19 numerous individual persons. See Docket No. 4-1 at ¶¶ 5-333. With respect to the federal civil 20 causes of action, these claims are brought pursuant to Title VII and the ADEA. See id.1 Plaintiff 21 cannot state a claim against these individuals because the Ninth Circuit has held that Title VII and 22 the ADEA do not create individual liability. Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 23 (9th Cir. 1993); see also Lum v. Kauai Cnty. Council, 358 Fed. Appx. 860, 862 (9th Cir. 2009). 24 25 26 1 The complaint also lists 29 U.S.C. § 218c, see, e.g., Docket No. 4-1 at 6 (heading for count 1), which addresses protections under the Patient Protection and Affordable Care Act, see, 27 e.g., Banks v. Soc. of St. Vincent De Paul, 143 F. Supp. 3d 1097, 1103-04 (W.D. Wash. 2015). The Court does not discern allegations in Plaintiff’s complaint regarding the Patient Protection and 28 Affordable Care Act. 1 Accordingly, the Title VII and ADEA claims against these individual Defendants fail as a matter 2 of law. 3 Plaintiff’s complaint also attempts to bring claims against these individual Defendants 4 pursuant to federal criminal statutes: 18 U.S.C. §§ 241, 1341, and 1343. See, e.g., Docket No. 4- 5 1 at ¶¶ 38-49. Federal criminal statutes do not generally create a private, civil right of action. See 6 Cal. v. Sky Tag, Inc., 2011 WL 13223655, at *2 (C.D. Cal. Nov. 29, 2011) (collecting cases); see 7 also Kent v. Century Manor Trust Ltd., 2019 WL 5596481, at *4 (E.D. Cal. Oct. 30, 2019) (“Title 8 18 of the United States Code does not establish any private right of action and cannot support a 9 civil lawsuit”), adopted 2020 WL 704614 (E.D. Cal. Feb. 12, 2020). Courts have specifically 10 concluded that the criminal statutes that Plaintiff’s complaint cites do not create private, civil rights 11 of action. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (§ 241); Ross v. Orange 12 Cnty. Bar Ass’n, 369 Fed. Appx. 868, 869 (9th Cir. 2010) (§ 1341); Cobb v. Brede, 2012 WL 13 33242, at *2 (N.D. Cal. Jan. 6, 2012) (§ 1343). Accordingly, these claims against these individual 14 Defendants fail as a matter of law. 15 Plaintiff’s complaint identifies a host of state law statutory provisions, a state law 16 administrative code, and state common law causes of action regarding these individual Defendants. 17 The Court declines to address these state law claims. Plaintiff’s complaint alleges federal question 18 subject matter jurisdiction. See Docket No. 4-1 at ¶¶ 2-3.2 For the reasons discussed above, 19 however, Plaintiff’s complaint has failed to state a claim for relief on any federal cause of action. 20 As such, it is not clear that the Court would exercise jurisdiction over the state law claims in this 21 case. See 28 U.S.C. § 1367(c)(3); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th 22 Cir. 1997) (en banc). As such, the Court declines to screen Plaintiff’s state law claims at this time. 23 24 25 2 The complaint also appears to invoke diversity jurisdiction predicated on Plaintiff’s assertion that one of the defendants has a different state citizenship than Plaintiff. See Docket No. 26 4-1 at ¶ 2. Diversity jurisdiction requires that the plaintiff have a different state citizenship than all of the defendants (i.e., “complete diversity”). See, e.g., Allstate Ins. Co. v. Hughes, 358 F.3d 27 1089, 1095 (9th Cir. 2004). The complaint does not make such a showing and, instead, alleges the opposite. See Docket No. 4-1 at ¶ 2 (alleging that all of the other defendants reside in Clark 28 County, Nevada). Hence, the Court treats the complaint as invoking federal question jurisdiction. 1 B. CLAIMS AGAINST ENTITIES 2 The last page of Plaintiff’s complaint identifies three entity-Defendants: Worldwide Flight 3 Services, Allegiant Airlines, and IAEW – Transport Worker Union. Docket No. 4-1 at ¶¶ 334- 4 342. The complaint does not identify particular causes of action against these entity-Defendants 5 and does not provide factual allegations from which to glean the basis for any claims against these 6 entity-Defendants. See id. Instead, the complaint indicates that these entity-Defendants are liable 7 under a theory of respondeat superior and then indicates that “Plaintiff is open to a [t]rial by [j]ury 8 if these facts need further clarification.” See id. 9 Litigants are required to provide a short, plain statement of their claims, see Fed. R. Civ. 10 P. 8(a), including setting forth coherently who is being sued, for what relief, and on what theory, 11 with enough detail to guide discovery, McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). 12 Although the pleadings of pro se litigants are construed liberally, they must still comply with this 13 requirement. E.g., Montgomery v. Las Vegas Metro. Police Dept., 2014 WL 3724213, at *3 n.3 14 (D. Nev. July 28, 2014). When litigants have not complied with that dictates of Rule 8(a), courts 15 may dismiss the complaint sua sponte. See, e.g., Apothio, LLC v. Kern Cnty., 599 F. Supp. 3d 983, 16 1000 (E.D. Cal. 2022) (collecting cases). 17 The complaint falls short of meeting this standard as to the entity-Defendants. Indeed, the 18 complaint appears to take the approach that the factual basis for any claim will be provided later, 19 but a plaintiff cannot proceed past the pleadings without first identifying the factual allegations 20 from which a claim is stated. See, e.g., Mujica v. AirScan, Inc., 771 F.3d 580, 593 (9th Cir. 2014) 21 (“[P]laintiffs must satisfy the pleading requirements of Rule 8 before the discovery stage, not after 22 it” (emphasis in original)). Because the claims against the entity-Defendants do not comply with 23 the dictates of Rule 8, they are subject to dismissal.3 24 25 26 3 The Court notes that there might be significant hurdles to Plaintiff moving forward with employment claims against the entity-Defendants, including that a plaintiff is required to 27 administratively exhaust such claims. See, e.g., Lyons v. England, 307 F.3d 1092, 1103-04 (9th Cir. 2002). At this stage, however, the Court does not screen the complaint for such issues because 28 Plaintiff has not complied with Rule 8. 1 C. LEAVE TO AMEND 2 Having determined that Plaintiff’s complaint fails to state a colorable federal claim for 3 relief, the Court must decide whether to afford Plaintiff leave to amend. A plaintiff should be 4 given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear 5 that the deficiencies can not be cured by amendment. Cato, 70 F.3d at 1106. It is not clear that 6 Plaintiff can state any federal cause of action through amendment, but the Court will nonetheless 7 allow Plaintiff the opportunity to do so if he believes he can. 8 III. Conclusion 9 Accordingly, IT IS ORDERED that: 10 1. Plaintiff’s request to proceed in forma pauperis (Docket No. 4) is GRANTED. 11 Plaintiff is not required to pay the filing fee of four hundred two dollars ($402). Plaintiff 12 is permitted to maintain this action to conclusion without the necessity of prepayment 13 of any additional fees or costs or the giving of a security therefor. This order granting 14 leave to proceed in forma pauperis shall not extend to the issuance and/or service of 15 subpoenas at government expense. 16 2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint (Docket Nos. 4-1, 17 4-2) on the docket. 18 3. Plaintiff’s complaint is DISMISSED with leave to amend. Plaintiff will have until 19 September 11, 2024, to file an amended complaint, if the noted deficiencies can be 20 corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the 21 Court cannot refer to a prior pleading (i.e., the original complaint) in order to make the 22 amended complaint complete. This is because, as a general rule, an amended complaint 23 supersedes the original complaint. Local Rule 15-1(a) requires that an amended 24 complaint be complete in itself without reference to any prior pleading. Once a plaintiff 25 files an amended complaint, the original complaint no longer serves any function in the 26 case. Therefore, in an amended complaint, as in an original complaint, each claim and 27 the involvement of each Defendant must be sufficiently alleged. Failure to comply 28 with this order may result in dismissal of this case. ] 4. Because Plaintiff has not stated a claim over which this Court would exercise 2 Jurisdiction, his motions for issuance of summonses (Docket No. 12) and for service 3 (Docket No. 11) are DENIED as premature. 4 IT IS SO ORDERED. 5 Dated: August 22, 2024 Uk. Nancy J. Keppe * 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28