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Horace Chester Brown, Jr v. Fresno Unified School District

January 26, 2013

HORACE CHESTER BROWN, JR.,
PLAINTIFF,
v.
FRESNO UNIFIED SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND WITHIN THIRTY DAYS (Doc. 9)

Second Screening Order

Plaintiffs Horace Chester Brown, Jr., and Sheila Brown, proceeding in forma pauperis, filed their complaint on September 26, 2012. Because Plaintiffs' complaint failed to state a claim upon which relief can be granted, the Court dismissed it, as required by 28 U.S.C. § 1915(e)(2)(B)(ii), granting leave to amend within thirty days. On December 27, 2012, Plaintiff Horace Chester Brown filed the first amended complaint.

I. Screening Requirement

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

In his first amended complaint, Plaintiff has substantially changed the facts from those alleged in the original complaint. Accordingly, this screening memo must re-state the summary of alleged facts. As set forth in the complaint, the facts are internally contradictory and frequently inconsistent. As a whole, Plaintiff's story does not "hang together" and requires the reader to make illogical leaps from one occurrence to others that are seemingly unrelated.

Plaintiff (born March 15, 1956) began work as a custodian for Defendant on June 21, 1999. While employed by Defendant, Plaintiff was a member of Service Employees International Union (SEIU) and subject to the terms of a collective bargaining agreement. Plaintiff's compensation included medical insurance. Plaintiff also purchased through Defendant subsidized disability insurance from American Fidelity Insurance Company. Defendant owns American Fidelity Insurance Company.

On or about March 1, 2000, Plaintiff began to show symptoms of severe acid reflux, tightened chest and airways, gagging, and signs of heart attacks. On or about May 1, 2000, Plaintiff had his first appointment with his primary care physician, Dr. Sandhu at Northwest Medical Group. Plaintiff saw Dr. Sandhu monthly from May 1, 2000, through May 1, 2006. Plaintiff always notified Defendant of his absences for doctors' appointments, first exhausting his sick and vacation days to do so, and eventually taking time off without pay.

Dr. Sandhu was not able to diagnose Plaintiff's condition and allowed Plaintiff to continue to work for Defendant with no special accommodations. When Dr. Sandhu retired in April 1, 2006, he referred Plaintiff to Dr. Gurdeep Dillon, who became Plaintiff's new primary care physician. Dr. Gurdeep Dillon referred Plaintiff to a digestive specialist, Dr. Ulysses Dillon.

Marvin James*fn1 became Plaintiff's supervisor at Edison-Bethune Elementary School when James's predecessor retired. Plaintiff and James had an amiable relationship until May 2007, when James directed Plaintiff to clean bathroom walls with a combination of bleach and ammonia. Plaintiff contends that this using this procedure created mustard gas, which impaired his ability to breathe and required him to periodically step out of the bathroom. Exposure to the gas aggravated his medical condition and made his severe hiccups chronic.

Beginning in mid-May 2007, cleaning supplies at Edison-Bethune began to disappear. Jean Anderson, who was Edison-Bethune's financial manager and who was responsible for approving all supply orders, noted that excessive orders were being submitted. Plaintiff attributes the hazardous procedures implemented for bathroom cleaning to the shortage of cleaning supplies. After Anderson questioned James, James directed Plaintiff and another custodian to sign for all supply deliveries and to pick up supplies from Defendant's warehouse. On or about June 1, 2007, after observing James loading supplies into his personal vehicle, Plaintiff refused to sign further supply orders. James threatened to report Plaintiff to Defendant's Board of Directors if he continued to refuse to sign. At about the same time, James increased the number and difficulty of rooms assigned for cleaning by Plaintiff and the frequency with which cleaning was required.

Plaintiff complained to Anderson and Edison-Bethune principal Felecia Quarles that James was stealing supplies. Both refused to take action, pointing out that Plaintiff had signed the delivery order.

In August 2007, a neighborhood resident reported seeing James loading supplies into his vehicle after school hours. In September 2007, Plaintiff verbally complained to his union representative about the hazardous cleaning methods, sudden shortage of cleaning supplies, Plaintiff's witnessing James loading boxes of supplies into his personal vehicle, and the unusual increase in Plaintiff's work load beginning in May 2007. As a result, the union representative convened a grievance meeting attended by Plaintiff, James, and Quarrels to address Plaintiff's complaints. James was not reprimanded nor was he directed to modify the work safety conditions and job duties about which Plaintiff had complained.

In September 2008, James drove behind a car driven by Plaintiff's wife. When she arrived at her destination, he gunned his engine before driving off.

Unable to diagnose Plaintiff's symptoms, in April 2009, Dr. Gurdeep Dillon referred Plaintiff to a new primary care doctor, Michael Lynch. On October 20, 2009, Dr. Lynch referred Plaintiff to a specialist, Muhammed Sheik. Dr. Sheik diagnosed Plaintiff with intractable hiccups, and provided a note to Defendant's Disability Benefits Department that Plaintiff would be unable to work from October 13, 2010 through July 11, 2011. At a job modification meeting after Plaintiff began his medical leave, Plaintiff was advised that he needed to work an additional 30 days to qualify for retirement benefits.

In January 2011, Dr. Rahim Raoufi confirmed that Plaintiff had suffered intractable and chronic hiccups for the past twelve years. In a letter to Defendant's Human Resources and Labor Relations department, Dr. Raoufi reported:

The patient has undergo extensive workup and also has more work to be done . . . We recommend that the patient . . . wears a mask and gloves as he works as custodian in contact with lost so waste [sic] material at an elementary school. We recommend that he should avoid dust and working with disinfectant. We also recommend that he should have a separate cushion and wear a mask if he is shampooing or vacuuming. Overall, he should avoid contact with any chemical and dust as much as possible.

Doc. 9 at 33.

Dr. Raoufi did not clear Plaintiff to return to work before July 11, 2011.

Defendant called Plaintiff back to work in March 2011. In meetings with the Job Modification Committee on March 24 and 31, 2011, personnel advised Plaintiff that he needed to work "just 30 more days" from March 31, 2011, to qualify for retirement. Plaintiff alleges that his retirement date was to have been April 14, 2011, however, not 30 days after March 31, 2011.

On April 8, 2011, Plaintiff had surgery to the right side of his phrentic nerve block (right neck/throat area) and front chest area.

Plaintiff returned to work on April 12, 2011. Defendant did not provide a face mask and required Plaintiff to continue to dust rooms and to lift book boxes up to 25 pounds. Plaintiff suffered a stroke while working on April 12, 2011. Plaintiff's physicians attributed the stroke to stress on the job site. Plaintiff did not return to work thereafter.

On April 15, 2011, Plaintiff had surgery to the left side of his phrentic nerve block (left neck/throat area).

On May 20, 2011, Defendant's Human Resources and Labor Department advised Plaintiff that, as of April 13, 2011, he was temporarily laid off and placed on Defendant's 39-month re-employment list (R-39 status). The letter noted that Plaintiff had exhausted all paid and unpaid leaves of absence.

On August 30, 2011, Plaintiff filed a workers compensation claim, which was denied for having been filed after the April 12, 2011 termination date of his employment by Defendant.

On or about September 1, 2011, Plaintiff discovered that Defendant had advised Plaintiff's insurer, American Fidelity Insurance, that Plaintiff had resigned, and had advised California Public Employees Retirement System (Cal-PERS) that Plaintiff had been terminated on April 12, 2011.

On October 14, 2011, Plaintiff filed a grievance for wrongful termination in Defendant's administrative office. Also on October 13, 2012, Plaintiff filed an EEOC complaint for disability discrimination and retaliation. On November 29, 2011, Plaintiff filed a claim of retaliation and disability discrimination with the California Department of Fair Employment and Housing.

On December 12, 2011, Plaintiff received a letter indicating that, as a result of his resignation, he had been overpaid.

In January 2012, the Economic and Employment Development Office denied Plaintiff's application for disability insurance since he was still receiving his full salary from Defendant. On February 1, 2012, Economic and Employment Development Office amended its determination, finding that Plaintiff was eligible for disability insurance beginning November 1, 2011.

On March 15, 2012, Plaintiff completed all relevant disability retirement forms required by CalPERS. To date, Plaintiff has been unable to secure Defendant's required endorsement of the forms, despite multiple requests by Plaintiff and CalPERS. Defendant claims that it has never received the forms sent to it by Plaintiff, CalPERS, or Fidelity.

On June 19, 2012, Plaintiff suffered another stroke.

In November 2012, CalPERS temporarily approved Plaintiff's disability retirement benefits pending receipt of ...


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