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Kulvinder S. Boparai v. Eric K. Shinseki

July 20, 2012

KULVINDER S. BOPARAI,
PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1)

Plaintiff Kulvinder S. Boparai ("Plaintiff") initiated this action for civil rights violations against Eric K. Shinseki, Secretary of Veterans Affairs; Donna Beiter, Director the Greater Los Angeles Healthcare System- Veteran‟s Affairs; Dean Norman, Chief of Staff; Thomas Yoshikawa, Acting Director of Primary Care; Jo Ann Van Horn, Site Manager of Bakersfield Veterans Affairs Ambulatory Care Clinic; and the United States Department of Veterans Affairs. (Doc. 1). For the following reasons, Plaintiff‟s complaint is DISMISSED WITH LEAVE TO AMEND.

I. Pleading Requirements

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A complaint must include a statement affirming the court‟s jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards" than 2 pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 3

A complaint must state the elements of the plaintiff‟s claim in a plain and succinct manner.

Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of a complaint 5 is to give the defendant fair notice of the claims against him, and the grounds upon which the 6 complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted, 7 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers

labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. 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. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant‟s liability, it "stops short of the line between possibility and plausibility of "entitlement to relief.‟

Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id.

The Court has a duty to dismiss a case at any time it determines an action fails to state a claim, "notwithstanding any filing fee that may have been paid." 28 U.S.C. § 1915e(2). Accordingly, a court "may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim." See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1963)). However, the Court may grant leave to amend a complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

II. Plaintiff's Allegations 2

According to Plaintiff, he was "verbally assaulted and angrily stared at for a long time by Bakersfield clinic Site Manager Jo Ann Van Horn in a meeting in front of medical and nursing staff" 4 on March 8, 2011. (Doc. 1 at 1). Plaintiff asserts he "had several [Equal Employment Opportunity] 5 complaints naming [V]an Horn as responding management official." Id. Therefore, Plaintiff contends 6 the alleged verbal assault by Ms. Van Horn was "illegal discrimination" based upon his "protected 7 classes,"*fn1 as well as retaliation for the complaints. Id. 8

Plaintiff alleges he reported the incident to his supervisor, but was not informed of the outcome 9 of an investigation, despite requests to Earl Tso, Mary Moore, and Jeanelle Happy. (Doc. 1 at 1). Plaintiff believes "[n]o action has been taken against Ms. Jo Ann Van Horn by management." Id. Plaintiff asserts he "alleged illegal discrimination based on race, Religion, Age, Sex & Prior [Equal Employment Opportunity] activity and filed complaint." Id. at 2. Specifically, Plaintiff contends:

I learnt though Discovery [sic] of emails around May 4, 2011 that, Agency*fn2 employees and officials allegedly made repeated false complaints against me and portrayed me in a negative manner and management initiated investigations against me and planned disciplinary action and alleged ...


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