United States District Court, N.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH
PREJUDICE RE: DKT. NO. 14
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
construed as a first amended complaint (“FAC”).
Dkt. No. 12.
16, the Court granted Mr. Perry’s application to
proceed in forma pauperis and sua sponte dismissed
his FAC without prejudice pursuant to 28 U.S.C. §
1915(e)(2). The Court held that the FAC did not contain 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) because it was
unclear which entities and individuals Mr. Perry intended to
name as defendants, what allegedly wrongful actions were
attributable to anyone mentioned in the complaint, and why
any of the individuals referenced in his complaint other than
his employer are proper defendants in this employment
discrimination lawsuit. Additionally, the Court dismissed the
FAC for failure to exhaust administrative remedies,
Additionally, 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
Despite 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
Dkt. No. 13 at 3.
Court granted Plaintiff leave to file an amended complaint
that clearly states which allegations and claims relate to
which Defendants, the basis for federal court jurisdiction,
as well as whether or not Plaintiff has satisfied relevant
exhaustion requirements. The Court warned Plaintiff that if
he did not remedy the pleading defects in a second amended
complaint, dismissal could be with prejudice.
filed a second amended complaint (“SAC”) on July
7, 2016. The SAC makes his factual allegations and the basis
for his employment discrimination claim somewhat more clear.
However, Plaintiff has not alleged that he has exhausted his
administrative remedies, and instead tacitly concedes that he
has not yet done so. Plaintiff’s SAC states: “As
ordered, I have requested charges be filed against Perdue
Foods with the Equal Employment Opportunity Commission
(EEOC). As a rule, because EEOC has partnership with
Department of Fair Employment and Housing (DFEH), and I made
my complaint first to the EEOC, EEOC will raise any potential
complaints or charges with DFEH.” Thus, Plaintiff
appears to allege that he filed a claim with the EEOC
following the Court’s June 16 Order, but there is no
allegation that he has received a right-to sue letter.
complaint is dismissed with prejudice for failure to exhaust
administrative remedies. 1 Title VII provides that
within ninety days after the issuance of a right-to-sue
notice, “a civil action may be brought against the
respondent.” 42 U.S.C. § 2000e-5(f)(1). Once