United States District Court, E.D. California
Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
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 this court by Local Rule
302(21), pursuant to 28 U.S.C. § 636(b)(1).
has filed an incomplete application to proceed without
prepayment of fees. See 28 U.S.C. §§
1914(a), 1915(a). Plaintiff states that he receives a take
home salary of $3400 but has not specified a pay period for
this amount. (ECF No. 2.)
will be provided the opportunity to submit either the
appropriate affidavit in support of a request to proceed in
forma pauperis or the appropriate filing fee. If plaintiff
submits another affidavit, he must set forth precisely the
amount he receives as take home wages and the pay period for
the amount stated.
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 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.
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. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989); Franklin, 745 F.2d at 1227.
complaint must contain more than a "formulaic recitation
of the elements of a cause of action;" it must contain
factual allegations sufficient to "raise a right to
relief above the speculative level." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965
(2007). "The pleading must contain something
more...than...a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action."
Id., quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure 1216, pp. 235-235 (3d ed. 2004).
"[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96
(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.
complaint alleges that plaintiff, a business analyst and
product manager in the Chambers and Committee Divisions of
the Office of Legislative Counsel ("Legislative
Counsel"), was denied equal pay for the period 2011
through 2015 "for performing the same tasks along with
colleagues in the same department with higher
classifications." (ECF No. 1 at 5.) Plaintiff also
claims all his colleagues received promotions but he did not,
despite working with them and performing the same work load.
Id. The complaint seeks retroactive pay from
Legislative Counsel, as well as punitive damages.
Equal Pay Act provides in part:
No employer having employees subject to any provisions of
this section shall discriminate, within any establishment in
which such employees are employed, between employees on the
basis of sex by paying wages to employees ... at a rate less
than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
29 U.S.C. § 206(d)(1).
Equal Pay Act case requires a plaintiff to prove
discrimination by showing that employees of the opposite sex
were paid different wages for equal work. Stanley v.
University of Southern California, 178 F.3d 1069,
1073-74 (9th Cir. 1999).
has failed to state a claim under the Equal Pay Act
("EPA") because he has not alleged that Legislative
Counsel paid men less than women for performing equal work.
If plaintiff chooses to amend the complaint, plaintiff must