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James Johnson v. Khs&S Contractors; Mark Gill; Derek Stevens; and Jim

March 4, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is proceeding without counsel, filed his complaint on January 12, 2011.*fn1 (Dkt. No. 1.) Presently before the court is plaintiff's application to proceed in forma pauperis. (Dkt. No. 2.) For the reasons stated below, the undersigned grants plaintiff's application to proceed in forma pauperis, but dismisses his complaint pursuant to 28 U.S.C. § 1915(e)(2). Such dismissal is without prejudice, and plaintiff is granted leave to file an amended complaint.

I. Plaintiff's Application to Proceed In Forma Pauperis Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's application and declaration make the showing required by 28 U.S.C. §§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis.

The determination that a plaintiff may proceed in forma pauperis does not complete the inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

In assessing whether a plaintiff's complaint fails to state a claim on which relief can be granted, the court adheres to the "notice pleading" standards. Under the notice pleading standards of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ.

P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez, 203 F.3d at 1130-31.

II. Screening of Plaintiff's Complaint

In its entirety, plaintiff's complaint states: My civil rights were violated on 8-27-08 [sic] I was harased [sic] with being called the N-word by superintendent Jim Feine in front of other superintendents. No actions that I requested was [sic] met [sic] I am seeking two years salary or negotiable [sic] [.] (Compl. at 2.) Although his allegations are sparse, plaintiff appears to be alleging a claim of racial harassment that created a hostile work environment against a supervisor, Jim Fiene, in violation of Title VII of the Civil Rights Act of 1964 or 42 U.S.C. § 1981. It is unclear from plaintiff's complaint whether he intends to proceed under Title VII, Section 1981, or both statutes. In any event, "[h]ostile work environment claims under Title VII contain the same elements of a § 1981 hostile work environment claim and, thus, the 'legal principles guiding a court in a Title VII dispute apply with equal force in a § 1981 action.'" Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 n.3 (9th Cir. 2008) (citing Manatt v. Bank of Am., 339 F.3d 792, 797 (9th Cir. 2003)).

As an initial matter, plaintiff alleges no facts in his complaint that implicate the following defendants: KHS&S Contractors, Mark Gill, and Derek Stevens. Although it appears that plaintiff might be alleging that he was employed by KHS&S Contractors during the events in question, such an allegation is not expressly stated in, or clearly implied by, the complaint. Moreover, no facts are alleged insofar as defendants Gill and Stevens are concerned. Accordingly, plaintiff's complaint is dismissed as to these three defendants. Such dismissal is without prejudice, and plaintiff may file an amended complaint that attempts to cure these pleading deficiencies.

Substantively, as to defendant Fiene, plaintiff has not alleged a legally cognizable hostile work environment claim or harassment claim. To establish a prima facie case for a hostile-work environment claim as a result of racist comments, plaintiff must allege that: (1) defendants subjected him to verbal or physical conduct based on his race; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008); accord Manatt, 339 F.3d at 798.

Although plaintiff sufficiently alleges facts in support of the first and second elements of a hostile work environment claim, he has not pled facts that support the third element of such a claim. "In considering whether the discriminatory conduct was 'severe or pervasive,' [the court looks] to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Johnson, 534 F.3d at 1122 (citations and quotation marks omitted). The Ninth Circuit Court of Appeals has stated that neither Section 1981 nor Title VII is a "general civility code," and that "[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Manatt, 339 F.3d at 798 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Based on the facts pled in the complaint, plaintiff appears to be alleging that defendant Fiene called plaintiff "the N-word" once and that other supervisors took no action. This allegation, alone and as pled, does not support a hostile work environment claim. See, e.g., id. at 799 (collecting cases and holding that "two regrettable incidents" of racially offensive comments or jokes occurring over a span of over two years, coupled with the other offhand remarks made by the plaintiff's co-workers and supervisor, did not alter the conditions of plaintiff's employment). Accordingly, plaintiff's hostile work environment claim is dismissed. However, plaintiff is granted leave to amend his complaint in the event that he can allege facts that might substantiate a Title VII or Section 1981 claim. In particular, plaintiff should consider whether he can add additional facts concerning other alleged racially offensive conduct against him or the context of the single racial slur allegedly used by defendant Fiene such that it reached a level of severity that would support a hostile work environment claim.


For the foregoing reasons, IT IS HEREBY ...

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