The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITH PREJUDICE OBJECTIONS DUE: 30 DAYS (Doc. No. 1)
On May 18, 2012, Plaintiff, proceeding pro se and in forma pauperis, filed a complaint against the "State of California - OHSA." (Doc. 1.) For the reasons that follow, the Court RECOMMENDS that Plaintiff's complaint be DISMISSED WITH PREJUDICE.
Plaintiff's short complaint alleges the following: On 3-30-12, I filed a complaint with the Labor Commissioner regarding unsafe and unlawful working conditions at Quest Diagnostics, Inc., Fresno, CA. On May 18, 2011, I was fired by Quest Diagnostics, Inc. for "no longer meeting the company[']s expectations."
I filed a complaint with the Labor Commissioner['s] Office on April 13, 2011, Fresno Office, but it was lost and did not resurface until September, in Sacramento. The State of California failed to protect me under the whistleblowers statutes and to this date, no action has been taken on my behalf. The court needs to decide the issues involved. (Doc. 1.) Plaintiff has filed three other similar complaints in this district: Quintana v. State of California-Labor Standards Enforcement, 12-cv-00823-AWI-BAM; Quintana v. Quest Diagnostics, Inc., 1:12-cv-00824-LJO-DLB; Quintana v. United States of America - Federal OSHA, 1:12-cv-00867-AWI-GSA.
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 extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 557). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Pro se pleadings are to be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects in a complaint, a pro se plaintiff is entitled to notice and an opportunity to amend before dismissal. See Lopez, 203 F.3d at 1130-31.
From what can be gleaned from the allegations, it appears that Plaintiff is attempting to state a claim for wrongful termination in retaliation for reporting unsafe and unlawful working conditions at Plaintiff's place of employment. However, Plaintiff has not named his employer as a defendant; instead, he has named the State of California as a defendant for failing to act on his complaint to the Labor Commissioner regarding his employer's conduct.
The State legislature enacted the Occupational Safety & Health Act of 1973, commonly referred to as "CAL/OSHA." CAL-OSHA was created "for the purpose of assuring safe and healthful working conditions for all California working men and women . . . ." Cal. Lab. Code § 6300. Pursuant to Section 6307, the Division of Occupational Safety and Health (the "Division") has the power, jurisdiction, and supervision over every employment and place of employment in the state of California "which is necessary to adequately enforce and administer all laws and lawful standards and orders, or special orders requiring such employment and place of employment to be safe, and requiring the protection of the life, safety, and health of every employee in such employment or place of employment." Cal. Lab. Code § 6307. Employees may file a complaint with the Division to report a place of employment ...