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Fisk v. McHugh

United States District Court, Ninth Circuit

June 21, 2013

PAULA K. FISK, Plaintiff,
v.
JOHN M. McHUGH, Defendant.

ORDER SCREENING COMPLAINT AND DISMISSING PLAINTIFF'S CLAIMS, WITH LEAVE TO FILE AN AMENDED COMPLAINT WITHIN THIRTY (30) DAYS ECF NO. 1 ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO COMPLETE AND FILE LONG FORM APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS (FORM # AO 239) ECF NO. 2

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Paula K. Fisk ("Plaintiff") is proceeding pro se in the above-captioned action. Plaintiff filed the original complaint in this action on June 6, 2013. (ECF No. 1.) For the reasons set forth below, the Court finds that Plaintiff's complaint fails to state any claims upon which relief may be granted. The Court will dismiss Plaintiff's complaint with leave to file an amended complaint within thirty (30) days. The Court will further order Plaintiff to complete and file a long form application to proceed in district court without prepaying fees or costs or, in the alternative, pay the filing fee in this action.

I.

SCREENING

Pursuant to 28 U.S.C. ยง 1915(e)(2), the Court must dismiss a case if at any time the Court determines that the complaint fails to state a claim upon which relief may be granted. 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 Atlantic 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 570). "[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).

II.

PLAINTIFF'S COMPLAINT

Plaintiff alleges that she was a soldier and family assistance program manager for the United States Army Recruiting Command in Fresno, California from 2009 to 2010. (Compl. 1.) Plaintiff further alleges that she "blew the whistle on MAJ Maria Rodriguez Shellhamer, LTC Richard Rivera, COL. Michael Howitz, BG Michael X. Garrett and MG Donald M. Campbell, Jr., my USAREC chain of command, for creating a toxic command climate of sexual harassment, abusive behavior towards disabled civilian and military members." (Compl. 1.) Plaintiff alleges that she filed a complaint with the "U.S. Equal Opportunity Commission, Office of Federal operations, Appeal No. 0120130288." (Compl. 2.)

Plaintiff alleges that she "began reporting to my chain of command that conduct which violated agency rules was ongoing since at least September 2009, including ignoring agency protocols in place to assist Army Recruiting/Combat Veterans suffering from Post-Traumatic Stress Disorder, reporting suicide ideation and attempts of suicide." (Compl. 2.) After Plaintiff made these reports, she suffered retaliation, including an incident where Plaintiff's "timecard" was changed from a "day of work" to a "day of absence without leave." (Compl. 2.) Plaintiff alleges that, on the day in question, she fell at work and injured her right knee and back and filed a worker's compensation claim. (Compl. 2.) Plaintiff contends that MAJ Maria Rodriguez Shellhamer changed Plaintiff's timecard and terminated Plaintiff for "whistleblowing." (Compl. 2.)

Plaintiff also alleges that she received harassing e-mails from Shellhamer in October 2011 in retaliation for filing an EEOC complaint against her. (Compl. 3.) Plaintiff reported the acts of retaliation to COL Heather L. Garrett in January 2012, but Garrett denied Plaintiff's requests for relief. (Compl. 3.)

III.

DISCUSSION

A. Short and Plain Statement ...


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