The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND WITHIN THIRTY DAYS (Docs. 1 and 5)
Plaintiffs Horace Chester Brown, Jr., and Sheila Brown, proceeding in forma pauperis, filed their complaint on September 26, 2012.*fn1 Because Plaintiff's complaint fails to state a claim upon which relief can be granted, 28 U.S.C. § 1915(e)(2)(B)(ii) requires this Court to dismiss it. This order grants Plaintiff thirty days in which to amend his complaint to state a claim for which relief may be granted (a "cognizable claim").
The statutory privilege of proceeding in forma pauperis is a privilege, not a right. Williams v. Field, 394 F.2d 329, 332 (9th Cir.), cert. denied, 393 U.S. 891 (1968); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, (1965). "Indigence does not create a constitutional right to the expenditure of public funds and the valuable time of the courts in order to prosecute an action which is totally without merit." Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Accordingly, the statute requires the Court to screen any case in which a plaintiff proceeds in forma pauperis, as provided in 28 U.S.C. § 1915. A court must dismiss any case, regardless of the fee paid, if the action or appeal is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B).
II. Summary of Alleged Facts
Plaintiff, born March 15, 1956, was previously employed as a custodian by Defendant Fresno Unified School District Educational Facilities Corporation. He was a member of the Service Employees International Union (SEIU) and subject to the terms of a collective bargaining agreement. In addition to his regular employment health coverage, Plaintiff subscribed to voluntary subsidized disability coverage through American Fidelity Assurance Company, which was owned by Fresno Unified School District.
Beginning in 1999, Plaintiff suffered from "Intractable and Chronicle Hiccups."*fn2 On March 1, 2011, Plaintiff's physician, gastroenterologist Rahim Raoufi, M.D., notified Defendant's human resources department that Plaintiff required certain working conditions as a result of his medical condition.*fn3 Dr. Raoufi apparently recommended Plaintiff's use of a face mask and limited contact with dust and various cleaning products while he performed his job. Defendant did not modify Plaintiff's working conditions.
Also on March 1, 2011, University Central Medical Specialty Center, for which Dr. Raoufi worked, faxed to Defendant's disability benefits department a physician's statement indicating that Plaintiff was unable to work in any occupation from October 13, 2010, through July 11, 2011. The physician's statement indicated that Plaintiff's Intractable and Chronicle Hiccups caused difficulty in speaking, eating, breathing, and concentrating at work.
On March 24 and 31, 2011, Plaintiff and Mrs. Brown met with Defendant's job modification committee, where they were informed that Plaintiff needed to work thirty more days as a custodian to qualify for retirement. Information they received from the California Public Employee Retirement System (CalPERS), however, indicated that Plaintiff already had sufficient work credit years to retire.
On April 8, 2011, Plaintiff had surgery on the right and left side of his phrenic nerve block (neck and throat) and front chest area. Plaintiff returned to work to complete the required thirty days of employment. On April 12, 2011, Plaintiff suffered a stroke while at work.
According to Plaintiff, his job was terminated without his knowledge on April 12, 2011. He alleges that he received no written or oral termination notice and did not submit a resignation letter to Defendant or SEIU. On May 20, 2011, Defendant sent Plaintiff a letter stating that as of April 13, 2011, he had been placed on its re-employment list. The letter further indicated that Plaintiff had exhausted all of his paid and unpaid leaves of absence. Nonetheless, from April 13 through September 24, 2011, Plaintiff believed that he was still employed by Defendant.
Between September 29 and October 14, 2011, Plaintiff discovered that Defendant had terminated his employment. He filed a grievance for wrongful termination discrimination, disability discrimination, and retaliation with EEOC. On November 29, 2011, he filed grievances with the California Department of Fair Employment and Housing.*fn4
Plaintiff alleges that Defendant provided different information to Plaintiff, Fidelity, and the EDD office.*fn5 Defendant advised Plaintiff that he was on R-39 status.*fn6 Defendant advised EDD that Plaintiff was still employed and receiving full wages. Defendant advised Fidelity that Plaintiff had resigned.
On July 23, 2011, CalPERS provided Plaintiff with retirement estimation information as of July 23, 2011. It indicated that if Plaintiff retired as of April 14, 2011, at the age of 55 years, he would have 10.604 total years of service credit with final compensation of $2817.40 monthly.
On February 1, 2012, EDD mailed Plaintiff a redetermination letter advising Plaintiff that, since it could not establish that Defendant continued to pay Plaintiff, Plaintiff was eligible for disability insurance beginning November 1, 2011.
On March 15, 2012, Plaintiff forwarded for Defendant's endorsement the documentation for disability retirement required by CalPERS. Defendant did not endorse these forms, although its endorsement was required to allow Plaintiff to begin processing his application. When Defendant was unresponsive to Plaintiff's repeated requests by letter and personal visits that it sign and release the requisite forms, Fidelity inquired on Plaintiff's behalf.
On June 19, 2012, Plaintiff suffered another stroke.
In July 2012, Fidelity advised Plaintiff that he needed to go to Defendant's payroll department to have the CalPERS forms signed. Although Plaintiff continued to attempt to do so, Defendant repeatedly cancelled appointments and referred Plaintiff to individuals who were not authorized to endorse the papers.
On an unspecified date at Bethune Elementary School, Plaintiff overheard his supervisor, who was discussing Plaintiff's job duties with someone, state, referring to Plaintiff, "I will pencil whoop him."
In determining whether a complaint fails to state a cognizable claim, a court applies substantially the same standard applied in motions to dismiss pursuant to F.R.Civ.P. 12(b)(6). Gutierrez v. Astrue, 2011 WL 1087261 at *1 (E.D.Cal. March 23, 2011) (No. 1:11-cv-00454-GSA). "The focus of any Rule 12(b)(6) dismissal . . . . is the complaint." Schneider v. California Department of Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). A court must dismiss a complaint, or portion of a complaint, for failure to state a claim upon which relief can be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim(s) that would entitled the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). When a court reviews a complaint under this standard, it must accept as true the complaint's allegations (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976)), construe the pleadings in the light most favorable to the plaintiff (Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)), and resolve all doubts in the plaintiff's favor (Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)).
A. Short and Plain Statement
The sufficiency of a complaint is first determined by referring to F.R.Civ.P. 8(a) which requires that a civil complaint contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing the pleader is entitled to relief; and
(3) a demand for the relief sought which may include relief in the alternative or ...