United States District Court, N.D. California
ORDER RE: PLAINTIFF’S RESPONSE; EXTENDING
DEADLINE TO FILE SECOND AMENDED COMPLAINT Re: Dkt.,
9
DONNA
M. RYU JUDGE
On July
1, 2016, the court issued an order granting Plaintiff
Weisheng Ye’s application to proceed in forma
pauperis and dismissing the complaint with leave to
amend by July 18, 2016.[1]July 1, 2016 Order [Docket No. 8].
Plaintiff brought this action against the University of
California, San Francisco (“UCSF” or
“Defendant”) pursuant to Title VII of the Civil
Rights Act of 1964 for employment discrimination. The court
dismissed Plaintiff’s claims because they appeared to
be untimely. Plaintiff brought this suit pursuant to Title
VII of the Civil Rights Act of 1964 for employment
discrimination. He alleged that Defendant failed to employ
him, violated the labor law, engaged in sexual harassment,
covered up harassment, and retaliated against him. First
Amended Complaint (“FAC”) [Docket No. 6] at
¶¶ 4-5. The court construed Plaintiff’s FAC
as alleging claims for sexual harassment and retaliation
under Title VII.
Title
VII requires a plaintiff to timely file an administrative
charge with the Equal Employment Opportunity Commission
(“EEOC”) or a state agency before instituting a
lawsuit. B.K.B. v. Maui Police Dep't, 276 F.3d
1091, 1099 (9th Cir. 2002), as amended (Feb. 20,
2002); 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. §
626(d). Under Title VII, a plaintiff must file an EEOC charge
within 180 days or within 300 days after the alleged unlawful
employment practice occurred if Plaintiff “initially
instituted proceedings with a State or local agency with
authority to grant or seek relief from [an unlawful
employment] practice.” 42 U.S.C. § 2000e-5(e)(1).
In his
FAC, Plaintiff alleged that the discriminatory conduct that
is the basis for his Title VII claim occurred on or between
July 31, 2014 and November 15, 2014, and he did not file an
administrative charge of discrimination until September 18,
2015, more than 300 days after the allegedly unlawful
employment practice occurred. FAC at ¶¶ 7, 8. The
court determined that, based on Plaintiff’s FAC, all of
the conduct that was the basis of his claim occurred outside
the statutory limitations period.
On July
18, 2016, Plaintiff filed a document entitled “In
Response to Judge’s Order for Amended Complaint.”
Plaintiff’s Response [Docket No. 9.] In this document,
Plaintiff states that he worked with the UCSF program
coordinator from January 2015 to August 2015. Id. at
¶ 1. He also states that in July 2015, a staff member in
the Business Account Unit, either at UCSF or the City of San
Francisco’s job assistance program, brought him to a
room where he was chided by that individual’s
supervisor that his reports of harassment were not true.
Id. at ¶ 4.
From
Plaintiff’s Response, the court cannot determine
whether the conduct Plaintiff complains of from January 2015
to August 2015 was presented to the EEOC or a California
state agency prior to the filing of this lawsuit. Although
Plaintiff included his notice of his right to sue with his
original complaint, he did not provide a copy of the charge
he submitted to the EEOC, nor does he explain what conduct
was presented in his EEOC charge. EEOC Dismissal and Notice
of Rights [Docket No. 1 at 4]; Plaintiff’s Response at
¶ 5. Nor can the court determine whether the conduct
that Plaintiff complains of from January 2015 to August 2015
is attributable to Defendant UCSF, or whether the more recent
conduct he complains of is based on actions by the City of
San Francisco’s job assistance program. See
Plaintiff’s Response at ¶ 4.
Rule
8(a) of the Federal Rules of Civil Procedure states that
“[a] pleading which sets forth a claim for relief . . .
shall contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). Plaintiffs July 18, 2016 response fails to
do so.
Plaintiffs
First Amended Complaint, has been dismissed in its entirety.
July 1, 2016 Order at 7. Although Plaintiff did not file a
Second Amended Complaint by July 18, 2016, the court has
reviewed Plaintiffs Response, and it appears that Plaintiff
may be able to allege facts supporting a Title VII claim.
The
court reminds Plaintiff that he should not rely on his prior
pleadings in order to make his Second Amended Complaint
complete. This is because an amended complaint supersedes the
original complaint. Lacey v. Maricopa Cty., 693 F.3d
896, 927 (9th Cir. 2012) (en banc). If Plaintiff wishes to
file a Second Amended Complaint, he shall clearly articulate
his claims for relief and the all the facts supporting his
claims in a single document entitled “Second Amended
Complaint.” The court hereby extends the Plaintiffs
deadline to file a Second Amended Complaint from July 18,
2016 to August 8, 2016. Failure to file a timely amended
complaint may result in a dismissal without prejudice for
failure to prosecute the case.
The
court refers Plaintiff to the section “Representing
Yourself on the Court’s website, located at
http://cand.uscourts.gov/proselitigants, as well as
the Court’s Legal Help Centers for unrepresented
parties. In San Francisco, the Legal Help Center is located
on the 15th Floor, Room 2796, of the United States
Courthouse, 450 Golden Gate Avenue, San Francisco. In
Oakland, the Legal Help Center is located on the 4th Floor,
Room 470S, of the United States Courthouse, 1301 Clay Street,
Oakland.
The
court extends Plaintiffs deadline to file a Second Amended
Complaint to August 8, 2016. Failure to file an amended
complaint by August 8, 2016 may result in this action being
dismissed for failure to prosecute.
IT IS
SO ORDERED.
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