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William J. Whitsitt v. Patricio Enterprises

April 15, 2013

WILLIAM J. WHITSITT, PLAINTIFF,
v.
PATRICIO ENTERPRISES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Pro se pleadings are 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 of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

In this case, plaintiff asserts claims of discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), as well as state law claims. Plaintiff, who is 56 years old,*fn1 appears to allege that defendants Patricio Enterprises (a potential employer) and San Joaquin County Work net (a staffing company) failed to hire plaintiff for a low paying menial job despite his years of relevant work experience and overqualification for the job, due to his age. He further alleges that he has been blacklisted in a conspiracy among staffing companies and employment agencies as a result of his prior discrimination complaints. Plaintiff also names the United States as a defendant in conjunction with his claim that Patricio Enterprises is a government agent or contractor and the allegation that these defendants not only hired younger, less qualified employees, but also favored ex-military veterans over older more experienced applicants.

Although plaintiff's complaint contains sufficient facts, at least for purposes of screening, to indicate that plaintiff's claims are not frivolous, the court finds that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). The complaint is 30 pages long, contains multiple sections with small print and single spacing, and also contains a large amount of material irrelevant to plaintiff's claims. Furthermore, several passages are repeated virtually verbatim throughout the complaint. Accordingly, the court will dismiss plaintiff's complaint, but with leave to amend.

Plaintiff is also informed that if he continues to name the United States as defendant in an amended complaint, this defendant may be dismissed under the following authority.

Under the ADEA, only employers may be subject to liability. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67-68, 120 S.Ct. 631 (2000). "Generally, an agent or employer who may be sued as an employer in Title VII suits [and, by analogy, in ADEA suits] has been construed to be a supervisory or managerial employee to whom employment decisions have been delegated by an employer." Gallagher v. Gallagher, 130 F.Supp.2d 359, 362-63 (N.D.N.Y. 2001) (citation omitted).

(b) The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year .... The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

29 U.S.C. § 630(b).

It is not clear whether the ADEA applies to the United States as an employer where plaintiff is not a covered federal employee ...


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