United States District Court, N.D. California
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE RE: DKT.
ELIZABETH D. LAPORTE United States Magistrate Judge.
February 23, 2016, pro se plaintiff Patrick Perry filed a
complaint and application to proceed in forma
pauperis. On February 29, 2016, the Court issued an
Order requiring Plaintiff to re-file a completed application
to proceed in forma pauperis, and cautioned him that
as pled his complaint failed to state a claim because he did
not allege or otherwise indicate that he exhausted his
administrative remedies and received a right-to-sue letter.
Plaintiff did not timely file a completed application to
proceed in forma pauperis or amended complaint. The
Court issued an Order to Show Cause why the case should not
be dismissed for failure to prosecute. Dkt. No.7. Mr. Perry
responded and appeared at a hearing on the Order to Show
Cause on May 31, during which he was granted until June 13 to
file a completed application to proceed in forma
pauperis and amended complaint. Dkt. No. 10. Mr. Perry
consented to magistrate judge jurisdiction on June 2. Dkt.
No. 11. He then timely filed a completed application to
proceed in forma pauperis and a document the Court
construes as an amended complaint. Dkt. No. 12.
completed application to proceed in forma pauperis
adequately alleges his poverty. Plaintiff is not employed,
his monthly expenses exceed his monthly income, and he has a
dependent. He does not own a home or a car and has $2.00 in
cash. Therefore, Plaintiff qualifies for in forma
pauperis status, and his Application is granted.
Plaintiff's application is granted, the amended complaint
is dismissed sua sponte with leave to amend and the Marshal
shall not serve the amended complaint. In reviewing an
application to proceed in forma pauperis, the court
may dismiss a case sua sponte if the court
determines that the party applying for in forma
pauperis status has filed a frivolous action. 28 U.S.C.
§ 1915(e)(2); Jackson v. Arizona, 885 F.2d 639,
640 (9th Cir. 1989). For purposes of 28 U.S.C. § 1915, a
frivolous claim is one that lacks an arguable basis in either
law or fact. Neitzke v. Williams, 490 U.S. 319, 325,
109 S.Ct. 1827, 1831-32 (1989). Dismissal on these grounds is
often ordered sua sponte prior to the issuance of
process, so as to spare prospective defendants the
inconvenience and expense of answering such complaints.
Id., 490 U.S. at 324, 109 S.Ct. at 1831. Where a
litigant is acting pro se and the court finds the
litigant's complaint frivolous within the meaning of 28
U.S.C. § 1915(e)(2), the court must give the litigant
notice of the deficiencies of the complaint and an
opportunity to amend before final dismissal, unless it is
absolutely clear that the deficiencies of the complaint could
not be cured by amendment. Noll v. Carlson, 809 F.2d
1446, 1448 (9th Cir. 1987); Eldridge v. Block, 832
F.2d 1132, 1135-37 (9th Cir. 1987).
not entirely clear, Plaintiff's complaint appears to be
based on allegations of wrongful termination following
alleged sexual harassment of Plaintiff's wife and sexual
assault on himself and resulting medical issues while
employed by Petaluma Poultry (elsewhere referred to as
Purdue, Inc.). The caption of the complaint lists
"Purdue, Inc.", "John Doe I" and
"Fatima" as defendants. Compl. at 1. The body of
the complaint mentions action taken by "Plant Manager
Richard" and a meeting with "Human Resource
Director David." Id. at 2. Other pages of the
complaint list additional individuals followed by cursory
boilerplate allegations such as "harassment" or
"discrimination" untethered to any factual
allegations. Id. at 7-8.
than a cursory reference to "Plant Manager Richard,
" Plaintiff does not connect any specific individual to
any of the actions described in the complaint. "Plant
Manager Richard" is not listed as a defendant in the
caption. Further, the Complaint does not state what actions
alleged are attributable to the individuals listed in the
caption and at the end of the complaint. Plaintiff also has
not demonstrated why any of the individuals referenced in his
complaint other than his employer are proper defendants in
this employment discrimination lawsuit. Accordingly, the
Complaint fails to include a "short and plain statement
of the claim showing that the pleader is entitled to
relief" as required by Federal Rule of Civil Procedure
8(a)(2) and the Complaint is dismissed on this basis.
before filing suit for an employment discrimination claim
pursuant to Title VII, a plaintiff must exhaust his
administrative remedies by filing a timely and sufficient
charge with the Equal Employment Opportunity Commission or
the appropriate state administrative agency and obtain a
right-to-sue letter. See, e.g., Vasquez v. County of
L.A., 349 F.3d 634, 645-46 (9th Cir. 2003); 42 U.S.C.
§§ 2000e-5(b), (f)(3), 16(c); Stache v.
Int'l Union of Bricklayers and Allied Craftsmen,
AFL-CIO, 852 F.2d 1231, 1233 (9th Cir.1988), cert.
denied, 493 U.S. 815 (1989). "[T]he administrative
charge requirement serves the important purposes of giving
the charged party notice of the claim and narrow[es] the
issues for prompt adjudication and decision." B.K.B.
v. Maui Police Dep't., 276 F.3d 1091, 1099 (9th Cir.
2002) (internal citations and quotations omitted).
having been previously warned about this pleading deficiency,
Plaintiff still does not allege that he exhausted his
administrative remedies by timely filing a complaint with the
Equal Employment Opportunity Commission ("EEOC")
within 180 days. To the extent that Plaintiff's claim is
based on state employment discrimination law, there is also
no allegation that Plaintiff timely filed a complaint with
the California Department of Fair Employment and Housing
("DFEH") within one year. See Rojo v.
Kliger, 52 Cal.3d 65, 83 (1990); Cal. Gov't Code
§12960. Though Plaintiff mentions a related workers'
compensation claim, the status of this proceeding is unclear.
is granted leave to file an amended complaint. Any amended
complaint must be filed within 21 days of the date of this
Order, and should clearly state which allegations and claims
relate to which Defendants. Any amended complaint should also
clearly state the basis for federal court jurisdiction as
well as whether or not Plaintiff has satisfied relevant
exhaustion requirements. If Plaintiff does not timely file an
amended complaint or does not remedy these pleading defects
in a second amended complaint, dismissal may be with
IS SO ORDERED.
 To the extent that this order is
dispositive, the Court does not require the consent of
Defendants because Defendants have not been served and
therefore are not parties under the meaning of 28 U.S.C.
§ 636(c). See Ornelas v. De Frantz, 2000 WL
973684, *2, n.2 (N.D. Cal. 2000) (citing Neals v.
Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (magistrate
judge had jurisdiction to dismiss prisoner's civil rights
action without consent ...