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Eddie Hernandez Jr v. Milano Restaurant

July 31, 2012

EDDIE HERNANDEZ JR.,
PLAINTIFF,
v.
MILANO RESTAURANT, D/B/A ME N ED'S PIZZERIA
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL WITHOUT LEAVE TO AMEND (Doc. 1)

INTRODUCTION

Plaintiff, Eddie B. Hernandez, ("Plaintiff"), appearing pro se and in forma pauperis, filed the instant civil action alleging that he was unlawfully terminated from his employment at Me N' Ed's Pizzeria ("Defendant"). The Court has reviewed the complaint and recommends that it be DISMISSED WITHOUT LEAVE TO AMEND for the reasons set forth below.

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or 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). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft ...


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