The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER DISMISSING NOS. C 03-3041 SI
AND C 03-3042 SI WITHOUT LEAVE TO
AMEND; AND DISMISSING NO. C 03-3043 SI
WITH LEAVE TO AMEND
On January 23, 2004, this Court heard argument on defendants' motion
to dismiss under Fed.R.Civ.Pro. 12(b)(6). Having carefully considered
the arguments of the parties and the papers submitted, the Court GRANTS
defendants' motion to dismiss with regard to the individual defendants
(case Nos. C 03-3041 SI and C 03-3042 SI), without leave to amend. With
regard to the corporate defendant, U.S. Freight Systems, Inc. (case No. C
03-3043 SI), the Court GRANTS defendant's motion to dismiss, with leave
to amend on or before February 20, 2004.
Plaintiff, pro se litigant Calvin R. Bowman, initially filed
these three lawsuits in the Southern District of Indiana. That court
transferred the actions to this district. This Court granted plaintiff's
petition to proceed in forma pauperis in all three suits.
Plaintiffs complaints against Victor Duong, David Duong and U.S. Freight
Systems, Inc., appear to concern employment-related discrimination
claims. Defendants have moved this Court to dismiss the complaints for
failure to state a claim under Fed.R.Civ.Pro. 12(b)(6).
Under Federal Rule of Civil Procedure 12(b)(6), a district court must
dismiss a complaint if it
fails to state a claim upon which relief can be granted. The
question presented by a motion to dismiss is not whether the plaintiff
will prevail in the action, but whether the plaintiff is entitled to
offer evidence in support of the claim. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), overruled on other grounds by Davis v.
Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).
In answering this question, the Court must assume that the plaintiff's
allegations are true and must draw all reasonable inferences in the
plaintiff's favor. See Usher v. City of Los Angeles,
828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests
that the chance of recovery is remote, the Court must allow the plaintiff
to develop the case at this stage of the proceedings. See United States
v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
If the Court dismisses the complaint, it must then decide whether to
grant leave to amend. The Ninth Circuit has urepeatedly held that a
district court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts." Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal
quotation marks omitted).
A. The individual defendants, David Duong and Victor Duong
Plaintiff has filed employment discrimination complaint forms. With
regard to the individual defendants, David Duong and Victor Duong,
plaintiff alleges claims under the following statutes: Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5; The Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621; The
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101; The
Rehabilitation Act, 29 U.S.C. § 701, et seq.; and
42 U.S.C. § 1981. Plaintiff also alleges a claim under "Labor S 98.7(c),"
presumably Cal. Labor Code § 98.7(c).
Employees must generally sue their employers (here, for example, U.S.
Freight Systems, Inc.), not other co-employees or workplace supervisors,
for employment discrimination claims under Title VII, the ADEA, the ADA
and the Rehabilitation Act. Miller v. Maxwell's International
Inc., 991 F.2d 583, 587-88 (Title VII and ADEA); U.S.E.E.O.C.
and Wessell v. AIC Security Investigations. Ltd., 55 F.3d 1276, 1279
(7th Cir. 1995) (ADA): Stern v. California State Archives, et
al., 982 F. Supp. 690, 692 (E.D. Cal. 1997)(ADA): and Campos v.
San Francisco State University, 1999 WL 1201809 (N.D. Cal.1999) Cal.
at *9-10 (ADA).
With respect to plaintiff's apparent claim under Cal. Labor Code §
98.7, plaintiff apparently received Right-to-Sue letters from the
California Department of Fair Employment & Housing, possibly in
connection with this claim. The relationship between plaintiff and the
individual defendants remains unclear from the complaint. However, under
California law, even supervisors are not employers; thus they cannot be
held liable for discrimination. See Janken v. GM Hughes
Electronics, 46 Cal.App.4th 55, 80 (1996) ("only employers-and not
individual supervisory employees-are at risk of liability for
Plaintiff also alleges a claim based on 42 U.S.C. § 1981. While
this might otherwise apply to individuals, it relates only to racial
discrimination done under color of state law. As is discussed in the next
section, plaintiff has not pled and, by all appearances, cannot plead
state action in this case.
For these reasons, this Court GRANTS defendants' motion to dismiss the
complaints against the individual defendants, David Duong and Victor
Duong, without leave to ...