The opinion of the court was delivered by: Sheila K. Oberto ie14hj United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE; DISMISSING PLAINTIFF'S COMPLAINT; AND GRANTING 30 DAYS LEAVE TO AMEND
Plaintiff Fred King ("Plaintiff") is proceeding pro se and in forma pauperis with an action for damages under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e et seq. Plaintiff asserts that Corcoran State Prison ("Corcoran") and Walden House, Inc. ("Walden House"), discharged him from his employment without any process. He asserts that he was not provided with due process because he is African American.He asserts that others, who are not African American, were provided with appropriate due process when their employment was terminated. Plaintiff also appears to suggest that his employment termination itself was predicated on racial discrimination.
A. Order to Show Cause Will Be Discharged
On June 22, 2010, the Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2). The Court found that Plaintiff had not alleged or shown that he had exhausted his administrative remedies before filing suit in federal court. See 42 U.S.C. §§ 2000e-5(d)(1) (claimant seeking relief under Title VII must first file a complaint with the Equal Employment Opportunity ("EEOC") within 180 days of alleged unlawful employment practice). The Court dismissed Plaintiff's complaint, allowing him 30 days leave of Court to amend to show that he had exhausted his administrative remedies as required under Title VII.
On July 21, 2010, Plaintiff filed a First Amended Complaint ("FAC"). As an attachment to his amended complaint, Plaintiff submitted an EEOC notice with regard to Charge No. 485-2009-00515(charge against Walden House), stating that it was terminating its processing of Plaintiff's case and that Plaintiff had 90 days from receipt of the notice to file suit in federal or state court. This notice regarding the right-to-sue was mailed on January 29, 2010, from the Local Fresno EEOC Office ("Walden House Right to Sue Notice"). (Doc. 7 at 16.) Plaintiff filed suit in this matter on May 17, 2010. In light of the fact that it appeared that Plaintiff's Title VII complaint was filed 109 days after the Walden House Right to Sue Notice was mailed to him, on September 1, 2010, the Court issued an Order to Show Cause why the FAC should not be dismissed based on the expiration of the limitation period for filing a Title VII suit.
On September 21, 2010, Plaintiff filed additional documents evidencing an official right-tosue notice issued from the U.S. Department of Justice ("DOJ ")with regard to Charge No. 485-2009-00516 (charge against Corcoran) mailed to him on February 24, 2010 ("Corcoran Right to Sue Notice"). Therefore, it appears that, at least with regard to the claim against Corcoran State Prison, Plaintiff's suit was filed within the 90-day limitation period. (Doc. 9 at 3.)
The additional documents submitted by Plaintiff indicate that the Walden House Right to Sue Notice was sent from the Local Fresno EEOC Office directly to Plaintiff. This letter purports to be the "notice of Right to Sue issued under Title VII." (Doc. 7 at 16.) On February 2, 2010, the Local Fresno EEOC Office sent Plaintiff a letter with regard to the charge against Corcoran stating that his request for a Notice of Right to Sue was forwarded to the U.S. Department of Justice. (Doc. 7 at 49.) The letter states that the Corcoran Right to Sue Notice would be issued directly to Plaintiff from the DOJ rather than the Local Fresno EEOC Office. It appears, therefore, that the Walden House Right to Sue Notice was issued by the Local Fresno EEOC Office on January 29, 2010, while the Corcoran Right to Sue Notice was issued by the DOJ on February 24, 2010. It may be that the time for filing a complaint against Walden House expired prior to Plaintiff filing this lawsuit. However, on the face of the record, it appears somewhat incongruent that the two charges were handled differently, despite being processed together by the Local Fresno EEOC Office on January 27, 2010. (Compare Doc. 9 at 5 with Doc. 9 at 6.) As it stands, without more information, the Court makes no finding regarding the timeliness of the complaint against Walden House. Therefore, the Court will discharge the September 1, 2010, order to show cause.
B. Sufficiency of the Allegations of the Complaint
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case, and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon 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). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the ...