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Larcenia Taylor v. Rebecca Blank Secretary of

March 28, 2013

LARCENIA TAYLOR,
PLAINTIFF,
v.
REBECCA BLANK SECRETARY OF UNITED STATES DEP'T OF COMMERCE, DEFENDANT.



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

ORDER FINDING PLAINTIFF HAS ALLEGED A COGNIZABLE CLAIM AND DIRECTING THE CLERK TO PROVIDE SERVICE DOCUMENTS FINDINGS AND RECOMMENDATIONS DISMISSING CERTAIN CLAIMS

Larcenia Taylor ("Plaintiff") seeks to proceed pro se and in forma pauperis with this action, alleging discrimination by the United States Department of Commerce ("Defendant"). Plaintiff initiated this action by filing her complaint and a motion to proceed in forma pauperis on November 28, 2012. The Court screened Plaintiff's complaint, and dismissed it with leave to amend on January 7, 2013. (Doc. 3). Plaintiff filed her First Amended Complaint on January 25, 2013. (Doc. 5).

For the following reasons, the Court finds Plaintiff has stated a cognizable claim in her First Amended Complaint. However, Plaintiff fails to state claims for a violation of 42 U.S.C. 1981 and the First Amendment. Accordingly, the Court recommends these claims be DISMISSED.

I. Screening Requirement

When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and shall dismiss the case at any time if the Court determines that the action is "frivolous, malicious or fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant who is 2 immune from such relief." 28 U.S.C. 1915(e)(2). The Court must screen the First Amended Complaint 3 because an amended complaint supersedes the previously filed complaint. See Forsyth v. Humana, 4 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 5

II. Pleading Standards

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A 7 pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short 8 and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief 9 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 pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and 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). A complaint must give a defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

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; legal 2 conclusions in the pleading are not entitled to the same assumption of truth. Id. 3

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 5 "may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a 6 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, leave to amend a complaint may be granted 8 to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 9 1122, 1127-28 (9th Cir. 2000) (en banc). III. Factual Allegations

Plaintiff alleges that she was employed as a "Partnership Assistant" by the Department of Commerce in Bakersfield, California, beginning July 2009. (Doc. 4 at 1, 7). According to Plaintiff, she was a part of a team of five Partnership Assistants, which included four Hispanics and herself. Id. at 2. Daniel Romero was the team supervisor, and Plaintiff contends he treated her differently than the other team members "by not giving her leads like he did the Hispanic Partnership Assistants." Id. at 2, 8. In ...


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