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Curd v. Vasona Management

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 19, 2005

JEREMY CURD, PLAINTIFF,
v.
VASONA MANAGEMENT, DEFENDANT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Jeremy Curd requests leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). The Ninth Circuit has indicated that leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) is properly granted only when the plaintiff has demonstrated poverty and has presented a claim that is not factually or legally frivolous within the definition of § 1915(e)(2)(B).*fn1 O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Thus, the court "may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Id. (quoting Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, 382 U.S. 896 (1965)). An in forma pauperis complaint is frivolous if it has "no arguable basis in fact or law." O'Loughlin, 920 F.2d at 617; Tripati, 821 F.2d at 1379; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).

The Supreme Court holds that dismissal prior to service under 28 U.S.C. § 1915(e)(2)(B) is appropriate where no legal interest is implicated, i.e., the claim is premised on a meritless legal theory, or clearly lacking any factual basis. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section 1915(e)(2)(B) accords judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 34 (1992). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Id.

In his complaint, which is a form complaint for Title VII employment discrimination actions, Plaintiff checked the boxes that Defendant discriminated against him by (1) failing to employ him and (2) terminating his employment. Plaintiff also checked the box indicating that Defendant engaged in other acts of discrimination against Plaintiff, but the two sentences he wrote to describe this act is not legible. In the box indicating how Defendant's conduct was discriminatory, Plaintiff checked the box indicating he was discriminated against on the basis of his religion.

The filing of a complaint with the Equal Employment Opportunity Commission (EEOC) is a prerequisite to bringing a Title VII suit in federal court. See 42 U.S.C. § 2000e-5(f) (a claimant must file charges of discrimination with the EEOC and receive a right-to-sue letter before bringing a private action based on discrimination against an employer in federal court); Vinieratos v. Dep't of the Air Force, 939 F.2d 762, 768 (9th Cir. 1991) (Title VII requires employees to exhaust their administrative remedies before filing a lawsuit); Stache v. Int'l Union of Bricklayers, 852 F.2d 1231, 1233 (9th Cir. 1988) (Title VII creates statutory prerequisite of administrative exhaustion before filing federal suit).

Plaintiff submits with his federal complaint a charge he filed against Defendant with the California Department of Fair Employment and Housing (FEHA) in which he indicates that Defendant retaliated against him for engaging in a protected activity by not hiring him.

Defendant did not attach a right-to-sue letter issued by the FEHA regarding this charge.

Plaintiff's complaint must be dismissed for three reasons. First, the federal complaint is based on different grounds than the FEHA charge he filed against Defendant. Second, the federal complaint is contradictory. Plaintiff does not explain how Defendant failed to hire him on the basis of his religion and also terminated his employment on the basis of his religion. Third, Plaintiff does not submit a right-to-sue letter on the same claims that he alleges in his federal complaint.

In the past year, Plaintiff has filed discrimination suits against different defendants with little or no grounds to support his claims. See e.g., Curd v. Menzies/Ogden Aviation, C 03-3904 CW, (judgment against Plaintiff entered on June 28, 2004, appeal dismissed on January 7, 2005); Curd v. Menzies, C 04-1180 CW (dismissed on June 28, 2004); Curd v. Globe Ground, C 04-1181 CW (dismissed on August 10, 2004, appeal dismissed on January 18, 2005); Curd v. Host Marriott Int'l, C 04-1182 CW (dismissed on June 28, 2004); Curd v. Swisport, C 04-1183 CW (dismissed on August 10, 2004, appeal dismissed on November 12, 2004), and Curd v. Ogden Menzies, C 04-1186 CW (dismissed on June 28, 2004).

Therefore, this complaint is dismissed with leave to amend. If Plaintiff wishes to file an amended complaint he must remedy the deficiencies noted above.

CONCLUSION

For the foregoing reasons, Plaintiff's request to proceed in forma pauperis is denied and his complaint is dismissed with leave to amend. If Plaintiff wishes to file an amended complaint, he must do so within thirty days from the date of this order. If Plaintiff does not file an amended complaint within thirty days, this complaint will be dismissed for failure to prosecute.


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