Turner v. BCforward ( 2022 )

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 SUMMER DAWN TURNER, CASE NO. C22-0357-JCC 10 Plaintiff, ORDER 11 v. 12 FACEBOOK, et al., 13 Defendants. 14 15 This matter comes before the Court sua sponte on pre-service review of Plaintiff’s 16 complaint (Dkt. No. 8) under 28 U.S.C. § 1915(e)(2)(B). Plaintiff, proceeding pro se, filed an 17 application to proceed in forma pauperis, (Dkt. No. 6), which the Honorable Michelle L. 18 Peterson, United States Magistrate Judge, granted. (Dkt. No. 7.) 19 Under 28 U.S.C. § 1915(a), the Court must review and dismiss before service the lawsuit 20 of any person seeking to proceed in forma pauperis if it is “frivolous, malicious, fail[s] to state a 21 claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune 22 from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th 23 Cir.2001) (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 24 To state a claim upon which relief may be granted, a complaint must contain sufficient 25 factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. 26 Iqbal, 556 U.S. 662, 664 (2009). The factual allegations must be “enough to raise a right to relief 1 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 2 complaint may be dismissed if it lacks a cognizable legal theory or states insufficient facts to 3 support one. Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). 4 The Court holds pro se pleadings to a less stringent standards than ones drafted by lawyers 5 and liberally construes them in the light most favorable to the plaintiff. Erickson v. Pardus, 551 6 U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not only permits but requires a district court to 7 dismiss an in forma pauperis complaint that fails to state a claim.” Lopez, 203 F.3d at 1229. When 8 dismissing a complaint under § 1915(e), the Court gives pro se plaintiffs leave to amend unless “it 9 is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Cato 10 v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 11 Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff 12 purports to sue for employment discrimination under the Americans with Disabilities Act of 13 1990,1 alleging as actionable conduct termination of her employment, failure to promote, failure 14 to accommodate, unequal terms and conditions of employment, and retaliation. (Dkt. No. 1 at 4.) 15 The complaint, however, alleges no supporting facts or cognizable legal theory. Although the 16 Court construes Plaintiff’s pleadings liberally, even a “liberal interpretation. . . . may not supply 17 elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 18 673 F.2d 266, 268 (9th Cir. 1982). 19 Further, Plaintiff does not state what relief is sought and first indicates that no notice-of- 20 right-to-sue letter has issued, only to then list a date that a letter was ostensibly issued. (See Dkt. 21 No. 1 at 6.) The Court cannot determine whether Plaintiff is plausibly entitled to relief without 22 knowing what that relief is or whether the requisite federal administrative remedies have been 23 exhausted. 24 Based on the forgoing, the Court DISMISSES Plaintiff’s complaint without prejudice. 25 Plaintiff must file an amended complaint curing the above-noted deficiencies within 21 days of 26 1 42 U.S.C. §§ 12112 to 12217. 1 this order. If no amended complaint is timely filed or if Plaintiff files an amended complaint that 2 fails to correct the deficiencies identified above, the Court may dismiss Plaintiff’s claims with 3 prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may 4 be granted.2 5 The Clerk is DIRECTED to send Plaintiff a copy of this order as well as the appropriate 6 forms to file an amended complaint. 7 DATED this 18th day of April 2022. A 8 9 10 John C. Coughenour 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 2 Plaintiff is advised that an amended complaint operates as a complete substitute for an original 25 complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, any amended complaint must clearly identify the defendant(s), the claims asserted, the specific facts which 26 Plaintiff believes support each claim, and the specific relief requested.