United States District Court, D. Hawaii
ROBERTA J. MCALMAN, Plaintiff,
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
Michael Seabright Chief United States District Judge.
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
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.
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.
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.
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.
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.
seeks “such relief as may be appropriate, including
injunctive orders, damages, costs, and attorney fees.”
Id. at PageID #4.
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,  and filed her Complaint in a timely
STANDARDS OF REVIEW
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).
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).
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).
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).
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.
reasons discussed below, Plaintiff's Complaint fails to
comply with Federal Rule of Civil Procedure 8 and fails to
state plausible claims.
Failure to ...