Ball v. NP Boulder LLC ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 WILLIAM H. BALL, Case No. 2:24-cv-01451-RFB-EJY 5 Plaintiff, 6 v. ORDER 7 NP BOULDER LLC, d/b/a BOULDER STATION, 8 Defendant. 9 10 Pending before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and 11 Complaint with Jury Demand. ECF Nos. 1, 1-1. The IFP application is complete and granted. 12 Plaintiff’s Complaint fails to state a claim upon which relief may be granted and is therefore 13 dismissed without prejudice, but with leave to amend. 14 I. Screening Standard 15 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 17 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, 18 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 19 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 20 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 21 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 22 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them 24 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 25 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 26 556 U.S. at 678). 27 In considering whether the complaint is sufficient to state a claim, all allegations of material 1 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 2 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 3 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 4 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 5 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 6 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 7 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 8 II. Plaintiff’s Complaint 9 Plaintiff complains he applied but was not hired for a table games floorperson position with 10 Boulder Station Casino. Plaintiff says he is 74 years old and has 19 years of experience. Plaintiff 11 alleges he was never contacted or interviewed for the position the cause of which is his age. Thus, 12 the Court liberally construes Plaintiff’s Complaint as attempting to state a claim under the Age 13 Discrimination in Employment Act (the “ADEA”). However, before Plaintiff can bring this claim, 14 he must exhaust his administrative remedies through the Equal Employment Opportunity 15 Commission (the “EEOC”) or state agency—the Nevada Equal Rights Commission (“NERC”). 16 Plaintiff’s Complaint evidences he did neither. 17 “Exhausting administrative remedies by filing a timely charge with the EEOC or the 18 appropriate state agency is a statutory pre-requisite for an … [applicant] to pursue litigation under 19 both Title VII and the ADEA.” Ramirez v. Kingman Hosp. Inc., 374 F.Supp.3d 832, 854 (D. Ariz. 20 2019) (citation omitted); Rosseter v. Industrial Light & Magic, Case No. C 08-04545 WHA, 2009 21 WL 764496, at *1 (N.D. Cal. Mar. 20, 2009) (to exhaust all administrative remedies under the 22 ADEA, plaintiff must allege that he filed an administrative charge with the EEOC within 180 days 23 of when the alleged unlawful practice occurred). This same rule applies to claims filed under Nevada 24 law. Pope v. Motel 6, 114 P.3d 277, 280 (Nev. 2005) (internal citation omitted) (NRS 613.420 25 requires an applicant “alleging employment discrimination to exhaust his administrative remedies 26 by filing a complaint with NERC before filing a district court action”); Palmer v. State, 787 P.2d 27 803, 804 (Nev. 1990) (citing Copeland v. Desert Inn Hotel, 673 P.2d 490 (Nev. 1983)) (the Nevada 1 to file a claim with the NERC and to have that agency adjudicate the claim before it can properly be 2 brought in district court”). 3 III. Order 4 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma 5 pauperis (ECF No. 1) is GRANTED. 6 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-1) is dismissed without 7 prejudice and with leave to amend. 8 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, he must 9 do so no later than September 6, 2024. The amended complaint must establish Plaintiff filed a 10 charge of discrimination before the EEOC or NERC alleging age discrimination against Boulder 11 Station or otherwise state a cause of action upon which relief may be granted. Plaintiff is advised 12 that if he files an amended complaint, the original Complaint (ECF No. 1-1) no longer serves any 13 function in this case. As such, the amended complaint must be complete in and of itself without 14 reference to prior pleadings or other documents. The Court cannot refer to a prior pleading or other 15 documents to make Plaintiff’s amended complaint complete. 16 IT IS FURTHER ORDERED that failure to comply with this Order may result in a 17 recommendation that this action be dismissed. 18 Dated this 9th day of August, 2024. 19 20 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27