UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 11, 2011
CEZAR CARVAJAL, PLAINTIFF,
PRIDE INDUSTRIES, DEFENDANT.
The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED PURSUANT TO 28U.S.C. § 1915(e)(2)(B)(ii)
Plaintiff, a non-prisoner proceeding pro se, has submitted a First Amended Complaint ("FAC") and an amended request for appointment of counsel. (Docs. 5, 7.) On November 18, 2010, the Court issued an Order granting Plaintiff's motion to proceed in forma pauperis ("IFP"), but dismissing Plaintiff's Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Doc. 4.) The Court granted Plaintiff leave to file an amended complaint on or before December 10, 2010, and Plaintiff filed his FAC on December 3, 2010.
Because Plaintiff is proceeding IFP, his FAC is subject to a mandatory and sua sponte review and dismissal by the Court to the extent it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)(en banc). Section 1915(e)(2) mandates that the court reviewing a complaint filed pursuant to the IFP provisions of § 1915 make and rule on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal pursuant to Fed. R. Civ. P. 4(c)(3). Lopez, 203 F.3d at 1127; see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
As currently pleaded, Plaintiff's FAC is subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted. Although Plaintiff attaches to his FAC a copy of a charge of discrimination filed by him with the U.S. Equal Employment Opportunity Commission, the FAC itself contains no facts in support of Plaintiff's allegations of violations of the Americans with Disabilities Act and Title VII. The FAC merely alleges "[d]isability-based discrimination, failure to accommodate, failure to engage in interactive process, interference, and retaliation in violation of the ADA; national origin and sex discrimination, and retaliation in violation of Title VII." Such a pleading, without additional factual allegations, is insufficient to state a claim upon which relief may be granted. Accordingly, the Court hereby finds that Plaintiff's FAC must be dismissed.
The Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Plaintiff may file a second amended complaint on or before January 31, 2011. Plaintiff's amended request for appointment of counsel is denied as moot.
IT IS SO ORDERED.
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