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Crabbe v. Nakayama

United States District Court, D. Hawaii

January 8, 2019

GAIL LYNN CRABBE, Plaintiff,
v.
DARLENE NAKAYAMA, PALOLO CHINESE HOME, Defendants.

          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 EXHIBIT. [1]

          Derrick K. Watson, United States District Judge.

         On 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. 2, 8.

         On 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 pleading.

         On 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 exhibit”).

         I. Screening of the FAC

         The 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).

         A. The FAC

         In the 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 defendants.

         As for 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).

         As a 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 ADEA.[2]

         The Court now turns to the claims against Palolo, addressing each in turn.

         B. Title VII

         Title 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.

         To set 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 ...


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