United States District Court, D. Hawaii
ORDER (1) DISMISSING FIRST AMENDED COMPLAINT WITH
LEAVE TO AMEND; (2) DENYING MOTION TO RECONSIDER APPOINTMENT
OF COUNSEL; AND (3) GRANTING MOTION TO CONSIDER ATTACHED
Derrick K. Watson, United States District
October 30, 2018, Plaintiff Gail Lynn Crabbe, proceeding pro
se, filed a Complaint against Palolo Chinese Home (Palolo) as
well as numerous individuals who appeared to be past or
present employees and/or members of the board of directors of
Palolo (“the original individual defendants”).
Dkt. No. 1. Crabbe also filed an application to proceed
in forma pauperis (“IFP Application”)
and an amended motion for appointment of counsel. Dkt. Nos.
November 14, 2018, this Court granted the IFP Application,
denied the amended motion for appointment of counsel, and
dismissed the Complaint (“the November 14, 2018
Order”). Dkt. No. 10. More specifically, the Court (1)
dismissed with prejudice all claims against the original
individual defendants brought under Title VII of the Civil
Rights Act of 1964 (Title VII), the Americans with
Disabilities Act (ADA), and the Age Discrimination in
Employment Act (ADEA); (2) dismissed without prejudice all
claims against Palolo under Title VII, the ADEA, the Family
and Medical Leave Act (FMLA), and the ADA, except for a claim
for failure to accommodate; (3) dismissed without prejudice
all claims against the original individual defendants under
the FMLA; and (4) found the claim for failure to accommodate
under the ADA against Palolo sufficient to survive screening.
The Court also granted Crabbe partial leave to amend. In
doing so, the Court explained that, should Crabbe amend her
Complaint, she must re-plead all claims and/or allegations
with which she wished to proceed, as she could not
incorporate any part of the original Complaint in her amended
December 17, 2018, Crabbe filed a First Amended Complaint
(FAC). Dkt. No. 12. Crabbe also filed a motion to reconsider
appointment of counsel, Dkt. No. 11, as well as a
“Motion to [c]onsider that attached exhibit 1
supporting my complaints by past attorney to EEOC. Awaiting
EEOC records. Will amend FMLA claim when EEOC records and/or
appointed counsel is granted. Choosing not to amend ADA
claim, ” Dkt. No. 13 (“the motion to consider
Screening of the FAC
Court subjects each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening and can order
the dismissal of any claims it finds “frivolous,
malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). In
doing so, the Court liberally construes a pro se Complaint.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987). However, the Court cannot act as counsel for a pro se
litigant or supply the essential elements of a claim.
Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey
v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982).
FAC, Crabbe brings two claims: race discrimination under
Title VII and age discrimination under the ADEA. Although
Crabbe makes no factual allegations against any particular
named defendant, Crabbe names Palolo and Darlene Nakayama as
Nakayama, as the Court explained in the November 14, 2018
Order, Crabbe cannot maintain a cause of action against an
individual under Title VII or the ADEA. See Miller v.
Maxwell's Int'l, Inc., 991 F.2d 583, 587-588
(9th Cir. 1993) (concluding that there is no individual
liability under Title VII and the ADEA).
result, because the only claims raised in the FAC are brought
under Title VII and the ADEA, Crabbe's claims against
Nakayama are again DISMISSED WITH PREJUDICE because amendment
cannot remedy the above-stated deficiency. Although the Court
has already instructed Crabbe not to do so, for the final
time, to the extent Crabbe files a second amended complaint,
she may not bring any claims against any
individual under Title VII or the
Court now turns to the claims against Palolo, addressing each
VII prohibits refusing to hire or discharging any individual
on the bases of race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a)(1). Here, Crabbe alleges
a claim of race discrimination.
forth a prima facie case of race discrimination under Title
VII, an employee must allege that (1) she is a member of a
protected class, (2) she performed her job adequately, (3)
she suffered an adverse employment action, and (4) she was
treated differently than a similarly situated employee who
was not a member of her ...