United States District Court, E.D. California
ORDER VACATING APRIL 14, 2016, FINDINGS AND
RECOMMENDATIONS; AND FINDINGS AND RECOMMENDATIONS TO DISMISS
WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM (ECF NOS.
10, 12) FOURTEEN-DAY (14) OBJECTION DEADLINE
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
is proceeding pro se and in forma pauperis in this employment
discrimination and retaliation action filed on October 14,
2015. On February 23, 2016, the Court dismissed
Plaintiff's first amended complaint and directed
Plaintiff to file a second amended complaint within thirty
days. (ECF No. 9.) When Plaintiff failed to file an amended
pleading, the undersigned issued Findings and Recommendations
to dismiss this action without prejudice for failure to
comply with a court order and failure to prosecute. (ECF No.
10.) Immediately following this recommendation, Plaintiff
filed a second amended complaint. (ECF No. 12.) Accordingly,
the undersigned will vacate the April 14, 2016, Findings and
Recommendations and screen the second amended complaint.
forma pauperis statute provides, "Notwithstanding any
filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court
determines that . . . the action or appeal . . . fails to
state a claim upon which relief may be granted." 28
U.S.C. § 1915(e)(2)(B)(ii).
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). Detailed factual allegations
are not required, but "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set
forth "sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face."
Id. Facial plausibility demands more than the mere
possibility that a defendant committed misconduct and, while
factual allegations are accepted as true, legal conclusions
are not. Id. at 677-78.
brings this employment discrimination and retaliation action
against Zero Waste Solutions ("Zero Waste"), Carmen
Rodriguez ("Carmen R."), and Rigo Rodriguez
is an African-American man who worked as a custodian for Zero
Waste for over ten years. Plaintiff last worked at the Robert
E. Coyle Federal Courthouse ("the Courthouse") in
2015, Carmen R. became Plaintiff's supervisor. Plaintiff
had a lot of (unspecified) problems with Carmen R. in the
past, and he believes that her appointment to a supervisory
position "gave her the authority to do what she wanted
March 2015, Rigo R. was assigned to work at the Courthouse as
a manager. Soon thereafter, Rigo R. gave Plaintiff a
"time-slotted work schedule, " which Plaintiff
objected to and refused to sign. Because of this, Plaintiff
was written up for insubordination. Plaintiff felt
"discriminated against and singled out because [he] was
the only person that got a … time slotted
R. then "manipulated [Rigo R.] to stay on [Plaintiff]
and write [him] up." As a result, Plaintiff was written
up five more times in less than three months, and on June 26,
2015, Plaintiff was terminated from his employment. Plaintiff
has text messages stating that Carmen R and Rigo R.
"were after him."
complained about this treatment to union representatives, but
Plaintiff was told to "just do your job." Plaintiff
claims that he was discriminated against because of his race
and sex and retaliated against in violation of Title VII of
the Civil Rights Act. Plaintiff also asserts that he was
wrongfully terminated. He seeks damages and/or job