United States District Court, S.D. California
October 12, 2005.
JAMES L. PEARSON, Jr., Booking No. 5119929; and PHYLLIS R. SHARPE, Plaintiffs,
SYCUAN CASINO, Defendant.
The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge
(1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS [Doc. No.
(2) SUA SPONTE DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915A(b)(1);
(3) DENYING MOTION FOR APPOINTMENT OF COUNSEL AS MOOT [Doc. No.
Plaintiff, James L. Pearson, Jr., currently detained at the San
Diego County Central Jail, and proceeding pro se, has filed a
civil rights action alleging gender discrimination pursuant to
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5, on behalf
of himself and another person named Phyllis R. Sharpe. Neither
purported Plaintiff has prepaid the civil filing fee required by
28 U.S.C. § 1914(a), but Pearson has submitted a Motion to
Proceed in forma pauperis ("IFP") pursuant to
28 U.S.C. § 1915(a) [Doc. No. 2], as well as a Motion for Appointment of
Counsel [Doc. No. 3]. I. Motion to Proceed IFP [Doc. No. 2]
Any party instituting a civil action, suit or proceeding in a
district court of the United States, except an application for
writ of habeas corpus, must pay a filing fee of $250. See
28 U.S.C. § 1914(a). An action may proceed despite a party's failure
to prepay the entire fee only if the party is granted leave to
proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v.
Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted
leave to proceed IFP however, remain obligated to pay the entire
fee in installments, regardless of whether their action is
ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor
v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation
Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must
submit a "certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the six-month
period immediately preceding the filing of the complaint."
28 U.S.C. § 1915(a)(2); see also Andrews v. King, 398 F.3d 1113,
1119 (9th Cir. 2005) ("[P]risoners [seeking leave to proceed IFP
per § 1915(a)(1) & (2)] must demonstrate that they are not able
to pay the filing fee with an affidavit and submission of their
prison trust account records."). From the certified trust account
statement, the Court must assess an initial payment of 20% of (a)
the average monthly deposits in the account for the past six
months, or (b) the average monthly balance in the account for the
past six months, whichever is greater, unless the prisoner has no
assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
institution having custody of the prisoner must collect
subsequent payments, assessed at 20% of the preceding month's
income, in any month in which the prisoner's account exceeds $10,
and forward those payments to the Court until the entire filing
fee is paid. See 28 U.S.C. § 1915(b)(2).
While Plaintiff Pearson has filed a Motion to Proceed IFP in
this matter pursuant to 28 U.S.C. § 1915(a), he has not attached
a certified copy of his prison trust account statement for the
6-month period immediately preceding the filing of his Complaint.
See 28 U.S.C. § 1915(a)(2); S.D.CAL. CIVLR 3.2. Section
1915(a)(2) clearly mandates that prisoners "seeking to bring a
civil action . . . without prepayment of fees . . . shall
submit a certified copy of the trust fund account statement (or institutional equivalent) . . . for
the 6-month period immediately preceding the filing of the
complaint." 28 U.S.C. § 1915(a)(2) (emphasis added). Without
Plaintiff's trust account statement, the Court is simply unable
to assess the appropriate amount of the filing fee required to
initiate this action. See 28 U.S.C. § 1915(b)(1).
Therefore, Plaintiff Pearson's Motion to Proceed IFP [Doc. No.
2] must be DENIED.
II. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
A. Standard of Review
In addition, 28 U.S.C. § 1915A further obligates the Court to
review complaints filed by prisoners, like Plaintiff, who are
"incarcerated or detained in any facility who is accused of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms or conditions of parole, probation,
pretrial release, or diversionary program," "as soon as
practicable after docketing" and regardless of IFP status. See
28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss
prisoner complaints, or any portions thereof, which are
frivolous, malicious, or fail to state a claim upon which relief
may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes,
213 F.3d 443, 446-47 (9th Cir. 2000).
"Under § 1915A, when determining whether a complaint states a
claim, a court must accept as true all allegations of material
fact and must construe those facts in the light most favorable to
the plaintiff." Id. at 447 (citing Cooper v. Pickett,
137 F.3d 616, 623 (9th Cir. 1997)). The rule of liberal construction
is "particularly important in civil rights cases." Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, in
giving liberal interpretation to a pro se civil rights complaint,
the court may not, "supply essential elements of the claim that
were not initially pled." Ivey v. Bd of Regents of the
University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). B. Application to Plaintiff's Complaint
Plaintiff's Complaint, in its entirety, alleges that:
Sycuan Resort and Casino did wrongfully accussed
[sic] James Pearson and Phyllis R. Sharpe of thief
[sic], settled with James Pearson, but denied Phyllis
Sharpe any compensation. I contend they discriminated
against Phyllis R. Sharpe on the basis of gender or
sex after defaming her i.e., slandered her name
See Compl. at 1.
These allegations fail to state a claim for several reasons.
First, to the extent a liberal construction of the Complaint
indicates Plaintiff Pearson, who is proceeding pro se, intends to
assert Phyllis Sharpe's rights under Title VII, he has no
authority to do so. See Johns v. County of San Diego,
114 F.3d 874, 877 (9th Cir. 1997) (pro se litigants cannot assert the
legal interests of anyone other than themselves).
Second, to the extent Pearson seeks to allege his own injury
under Title VII, he has failed to state a claim. Title VII was
enacted to eliminate discriminatory employment practices.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973).
Title VII prohibits discrimination "against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). Thus,
Title VII's prohibitions apply only to unlawful employment
practices. Id. Here, while Pearson seeks to challenge Defendant
Sycuan's "wrongful" accusation of theft; he does not, however,
claim to have been terminated or discriminated against because of
his "race, color, religion, sex or natural origin." Id.
Moreover, before filing an action in federal court under Title
VII, a private litigant must first file a complaint with the
Equal Employment Opportunity Commission. See
42 U.S.C. § 2000e-5(e)(1); Stache v. Int'l Union of Bricklayers,
852 F.2d 1231, 1233 (9th Cir. 1988); Green v. Los Angeles County,
883 F.2d 1472, 1473 (9th Cir. 1989). "An action brought under Title
VII must be filed [in district court] within ninety days of
receipt of a right to sue letter from the EEOC or appropriate
state agency. This filing period is a statute of limitations."
Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th
Cir. 1990) (citation omitted). Failure to file a claim within the ninety day period bars relief. Scholar
v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir. 1992).
Here, Plaintiff fails to allege that he has satisfied these
basic requirements of stating a Title VII claim. Therefore, he
cannot, based on the allegations in his Complaint, maintain a
cause of action against Sycuan Casino under Title VII.
Accordingly, the Court finds that Plaintiff's Complaint fails to
state a claim upon which relief may be granted, and is therefore
subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b).
III. Conclusion and Order
For all the reasons set forth above, IT IS ORDERED that:
(1) Plaintiff Pearson's Motion to Proceed IFP [Doc. No. 2] is
DENIED and this civil action is DISMISSED without prejudice
for failing to prepay the $250 filing fee mandated by
28 U.S.C. § 1914(a). Plaintiff if further GRANTED thirty (30) days from the
date this Order is stamped "Filed" to either: (1) pay the entire
$250 filing fee, or (2) submit a certified copy of his trust
account statement for the 6-month period preceding the filing of
his Complaint pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL.
IT IS FURTHER ORDERED that:
(2) Pearson's Complaint is DISMISSED sua sponte without
prejudice pursuant to 28 U.S.C. § 1915A(b)(1) because it fails to
state a claim upon which relief can be granted. However,
Plaintiff Pearson is also GRANTED thirty (30) days leave from
the date this Order is stamped "Filed" in which to file an
Amended Complaint which cures all the deficiencies of pleading
noted above. Pearson's Amended Complaint must be complete in
itself without reference to his original pleading. See S.D. CAL. CIVLR. 15.1.
Defendants not named and all claims not re-alleged in the Amended
Complaint will be considered waived. See King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987).
(3) In light of the dismissal of his Complaint, Plaintiff
Pearson's Motion for Appointment of Counsel [Doc. No. 3] is
DENIED without prejudice as moot.
IT IS SO ORDERED.
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