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United States District Court, N.D. California

March 24, 2004.

AJIT LAL, Plaintiff,

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


Defendant moved to dismiss plaintiff's complaint for lack of subject matter jurisdiction on July 7, 2003. See Doc # 17. Because plaintiff failed to respond to defendant's motion to dismiss, on December 18, 2003, the court ordered plaintiff to show cause why the case should not be dismissed. See Order (Doc # 22). Plaintiff responded to the court's order to show cause on December 22, 2003. Doc # 23. According to the analysis below, the court GRANTS defendant's motion to dismiss (Doc # 17). Page 2


  Plaintiff was an employee of the United States Postal Service ("USPS"). Plaintiff made various claims of discrimination through the USPS's administrative process. Plaintiff received a notice of final decision on his appeal before the Equal Employment Opportunity Commission (the "Commission") on or about July 6, 2001. Doc # 4. Plaintiff commenced the above-captioned lawsuit by filing the above-captioned complaint. Plaintiff apparently provided the complaint to the court clerk on December 17, 2001, but the complaint was not filed until January 16, 2002. Doc # 1. Plaintiff alleges discrimination on the basis of race, religion, national origin and physical handicap. Id.



  Under FRCP 12(b)(6), dismissal is proper if the complaint fails "to state a claim upon which relief can be granted." The court must accept the factual allegations as true and construe them in the light most favorable to the plaintiff. Broam v. Bogan, 320 P.3d 1023, 1028 (9th Cir 2003). Although a plaintiff is not held to a "heightened pleading standard," the plaintiff must provide more than mere "conclusory allegations." Swierkiewicz v. Sorema NA, 534 U.S. 506, 515 (2002) (rejecting heightened pleading standards); Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir 2002) (rejecting conclusory allegations). A motion to dismiss must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his Page 3 claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  "[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, 1122, 1127 (9th Cir 2000). The district court has broad discretion, however, to deny leave to amend after the first amendment of the complaint. See Wagh v. Metris Direct. Inc. 348 F.3d 1102, 1111 (9th Cir 2003).


  A federal employee's right to file an action based on discrimination in federal court is dependent on the employee's exhaustion of administrative remedies and adherence to strict deadlines. See Brown v. General Services Administration/ 425 U.S. 820, 829-35 (1976). A defendant must "file a civil action in an appropriate United States District Court: * * * (c) [w]ithin ninety days of receipt of the Commission's final decision on an appeal. 29 C.F.R. ยง 1614.407. Plaintiff received a final decision on his appeal on or about July 6, 2001, but plaintiff failed to file the present lawsuit until January 16, 2002. Compl (Doc # 1). Accordingly, plaintiff failed to file the complaint within ninety days as required. Even using the date plaintiff submitted the complaint to the court clerk, December 17, 2001, plaintiff failed to meet the ninety day requirement by months.

  As noted above, the court ordered plaintiff to show cause why the action should not be dismissed. Doc # 22. Plaintiff's response (Doc # 23) fails to address the grounds for dismissal Page 4 described in defendant's motion to dismiss (Doc # 17). Instead, plaintiff states "July 03 I have file [sic] more EEO charges of attrack [sic] and threath [sic] on me to the EEO office to investigat [sic]." Doc # 23 at 1. Plaintiff further requests "I and few [sic] other co-workers [sic] would like to get the protection of the court, to tell of the drugs use [sic] and selling of the drugs by my co-workers [sic] and the management [sic] during work hours and violence during work hours [sic]." Id. Finally, plaintiff also makes claims that the USPS inspectors have not investigated plaintiff's complaint but "just cover it up." Id. at 2.

  Plaintiff's response does not address his failure to meet the strict procedural requirements under section 1614.407(c) for filing federal discrimination actions. Accordingly, the court DISMISSES plaintiff's complaint and, as the defects of the complaint cannot be cured by amendment, this dismissal is entered with prejudice to the filing of an amended complaint. The clerk is DIRECTED to close the file and terminate all pending motions.



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