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McAlman v. Bernhardt

United States District Court, D. Hawaii

August 8, 2019

ROBERTA J. MCALMAN, Plaintiff,
v.
DAVID L. BERNHARDT, Acting Secretary, United States Department of the Interior, Defendant.

          ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND; AND (3) DENYING REQUEST FOR APPOINTMENT OF COUNSEL

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         On July 8, 2019, pro se Plaintiff Roberta J. McAlman (“Plaintiff”) filed an employment discrimination Complaint against her employer, Defendant David L. Bernhardt, in his capacity as Acting Secretary of the United States Department of the Interior (“Defendant”). ECF No. 1. That same day, Plaintiff also filed an Application to Proceed in forma pauperis (“IFP Application”) and a Request for Appointment of Counsel. ECF Nos. 2-3. For the reasons discussed below, the IFP Application is GRANTED, the Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim, Plaintiff is GRANTED leave to amend, and the Request for Appointment of Counsel is DENIED.

         II. IFP APPLICATION

         As set forth in the IFP Application, Plaintiff currently has no income, no money in a bank account, and no assets. IFP Application ¶¶ 2-5, ECF No. 2; see also Compl., ECF No. 1 at PageID #2 (“Currently, I remain on leave without pay.”). The IFP Application further indicates that Plaintiff has no monthly expenses, no dependents, and owes a debt of $1, 300. Id. ¶¶ 6-8. The court finds that Plaintiff has made the required showing under 28 U.S.C. § 1915(a) to proceed in forma pauperis (i.e., without prepayment of fees); therefore, the court GRANTS Plaintiff's IFP Application.

         III. BACKGROUND [1]

         The Complaint alleges employment discrimination claims against Plaintiff's employer, the National Parks Service, United States Department of the Interior (“Agency”). ECF No. 1. Attached to the Complaint are (1) a final Agency Decision and Order, dated April 1, 2019 (“Final Agency Decision”), granting summary judgment in favor of the Agency and against Plaintiff on her claims for discrimination and retaliation “on the bases of race (Hispanic), color (Black), sex (Female), disability (Mental) and reprisal (Previous [Equal Employment Opportunity] Activity)” in violation of “Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et seq., ” and (2) a Right-to-Sue letter dated April 9, 2019. ECF No. 1-1.

         The Complaint itself is written on the court's “Employment Discrimination Complaint” form, which specifies that claims are asserted pursuant to Title VII, but nowhere in the Complaint does Plaintiff specify that she is also asserting claims pursuant to the Rehabilitation Act. Because the Final Agency Decision is attached to the Complaint, however, and construing the Complaint liberally, the court finds that it alleges that the Agency discriminated against Plaintiff between October 2006 and April 2015 in violation of both Title VII and the Rehabilitation Act. ECF No. 1 at PageID #4; ECF No. 1-1 at PageID #4.

         The Complaint itself neither sets forth critical facts nor a coherent narrative or timeline of events supporting Plaintiff's claims. Rather, the Complaint's allegations respond to the Final Agency Decision. That is, the Complaint refers to and appears to incorporate portions of that decision-for example, the section titled “Claims at Issue” and some of the section titled “Section of Undisputed Material Facts”-but it also disputes many of the decision's facts. See ECF No. 1 at PageID #2 (“Please see attached [Final Agency Decision] (pg. 1&2, (I) Claims at Issue, (1) through (15)”); see Id. at PageID #2-3 (disputing facts set forth in “III. Statement of Undisputed Material Facts”). Thus, it is not entirely clear which facts from the Final Agency Decision Plaintiff is incorporating and alleging in this action.

         Nevertheless, the court discerns that Plaintiff's claims arise from the Agency's alleged conduct following her submission of a hardship transfer request in 2014. Plaintiff alleges that the Agency failed to process the request properly and failed to provider her with proper instructions, all of which caused delays resulting in Plaintiff being “placed on disability due to stress and anxiety.” ECF No. 1 at PageID #3. In addition, shortly after submitting her hardship transfer request and taking “Family Medical Leave” in Hawaii, the Agency “continued to dock [Plaintiff's] pay [and] threatened [her] with termination.” Id. The Agency allegedly “violated Article 42 of Union agreement in May 2015”; placed Plaintiff on “Detail” assignment rather than a reassignment; and conducted a management inquiry in November 2015, seven months after Plaintiff reported harassment by her first and second line supervisors. Id. Plaintiff “was not provided the appropriate resources to perform adequately, ” and the Agency “lied about no permanent employee located in Canarsie Pier in order not to provide ‘Reassignment' request.” Id.

         Plaintiff seeks “such relief as may be appropriate, including injunctive orders, damages, costs, and attorney fees.” Id. at PageID #4.

         In December 2015, Plaintiff filed discrimination claims with the Equal Employment Opportunity Commission (“EEOC”). Id. Thus, Plaintiff appears to have exhausted her administrative remedies for claims charged in her EEOC complaint, [2] and filed her Complaint in a timely fashion.[3]

         IV. STANDARDS OF REVIEW

         The court must screen the Complaint for each civil action commenced pursuant to 28 U.S.C. § 1915(a), governing IFP proceedings. The court must sua sponte dismiss a complaint or claim that is “frivolous or malicious[, ] . . . fails to state a claim on which relief may be granted[, ] or . . . seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

         Screening under § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (recognizing that a complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). However, although the court must accept as true allegations of material fact, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014) (citing Iqbal, 556 U.S. at 678). That is, conclusory statements, “unadorned, the-defendant-unlawfully-harmed-me accusation[s], ” and factual allegations that only permit the court to infer “the mere possibility of misconduct” fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79; see also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         In addition, Federal Rule of Civil Procedure 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and that “[e]ach allegation . . . be simple, concise, and direct.” Fed R. Civ. P. 8(a)(2), (d)(1). That is, to state a plausible claim, a plaintiff must allege a factual and legal basis for each claim, such that each defendant is provided fair notice of what each claim is and the grounds upon which each claim rests. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Twombly, 550 U.S. at 556-57, 562-563. The court may dismiss a complaint for violation of Rule 8 if a defendant would have difficulty responding to its claims, see Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011), even if the complaint is not “wholly without merit, ” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).

         Because Plaintiff is proceeding pro se, the court liberally construes her Complaint and resolves all doubts in her favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). A liberal construction of a pro se complaint, however, does not mean that the court will supply essential elements of a claim that are absent from the complaint. See Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (citation omitted). The court must grant leave to amend if it appears that Plaintiff can correct the defects in her Complaint, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc), but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013); see also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons “repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment”) (citation omitted).

         V. DISCUSSION

         Initially, Plaintiff's Complaint reads more like an appeal of the Final Agency Decision rather than a civil action asserting employment discrimination claims. As set forth in the Right-to-Sue letter, Plaintiff had the option of either (1) within thirty days of receiving that letter, appealing the Final Agency Decision to the EEOC, or (2) within ninety days after receiving the Right-to-Sue letter, filing a civil action in federal court. ECF No. 1-1 at PageID #5-6; see 29 C.F.R. § 1614.402(a) (EEOC appeal); 42 U.S.C. § 2000e-16(c). Plaintiff opted to file a new civil action in federal court, and therefore, to avoid dismissal, she must allege plausible claims for relief.

         For the reasons discussed below, Plaintiff's Complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to state plausible claims.

         A. Failure to ...


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