United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
Ray Stevens, who proceeds without counsel in this action, has
requested leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. (ECF No. 2.) Plaintiff's
application in support of his request to proceed in forma
pauperis makes the showing required by 28 U.S.C. §
1915. Accordingly, the court grants plaintiff's request
to proceed in forma pauperis.
determination that a plaintiff may proceed in forma
pauperis does not complete the required inquiry.
Pursuant to 28 U.S.C. § 1915, the court is directed to
dismiss the case at any time if it determines that 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
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.
avoid dismissal for failure to state a claim, a complaint
must contain more than “naked assertions, ”
“labels and conclusions, ” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
(2007). In other words, “[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). Furthermore, a claim upon which the
court can grant relief has facial plausibility.
Twombly, 550 U.S. at 570. “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 alleged.”
Iqbal, 556 U.S. at 678. When considering whether a
complaint states a claim upon which relief can be granted,
the court must accept the well-pled factual allegations as
true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and construe the complaint in the light most favorable to the
plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21 (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 ordinarily entitled to notice and an
opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
case, plaintiff alleges that, around December 21, 2014, he
applied to defendant IMKO Workforce Solutions, a screening
and placement agency, for an electrician assembler position
with defendant Unison Corporation. However, on January 27,
2015, plaintiff was informed that he was disqualified from
employment, and would not be hired at Unison, because of his
criminal record. According to plaintiff, he was told that the
disqualification was job related and consistent with company
business necessity. When plaintiff inquired further, one
representative informed plaintiff that he could not have any
criminal record, and another representative stated that he
could not have any felonies or serious misdemeanors.
Plaintiff admits that he has a misdemeanor from 2010 for
using his brother's driver's license and a
misdemeanor from 2013 for petty theft, but does not believe
that those convictions are job related or require exclusion
from an electrician assembler position. Plaintiff contends
that he was discriminated against on the basis of his race in
violation of Title VII of the Civil Rights Act and on the
basis of age in violation of the Age Discrimination in
Employment Act (“ADEA”).
complaint is subject to dismissal, because it states, on its
face, a legitimate reason for why defendants refused to hire
plaintiff. Generally, employers are free to refuse to hire
applicants with any criminal record without violating Title
VII or the ADEA, even if plaintiff personally disagrees with
the relevance of such a requirement for the position he
seeks. Furthermore, although plaintiff alleges that the
reason given for the refusal to hire was pretextual, his
allegation in that regard is entirely conclusory and
unsupported by any specific factual allegations.
light of the above, the court dismisses plaintiff's
complaint, but with leave to amend. If plaintiff elects to
file an amended complaint, it shall be captioned “First
Amended Complaint”; shall address the deficiencies
outlined above; and shall be filed within 28 days of this
is informed that the court cannot refer to a prior complaint
or other filing in order to make plaintiff's first
amended complaint complete. Local Rule 220 requires that an
amended complaint be complete in itself without reference to
any prior pleading. As a general rule, an amended complaint
supersedes the original complaint, and once the first amended
complaint is filed, the original complaint no longer serves
any function in the case.
nothing in this order requires plaintiff to file a first
amended complaint. If plaintiff determines that he is unable
to amend his complaint to state a viable claim in accordance
with his obligations under Federal Rule of Civil Procedure
11, he may alternatively file a notice of voluntary dismissal
of his claims without prejudice pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.
IT IS HEREBY ORDERED that:
1. Plaintiff s motion to proceed in forma pauperis
(ECF No. ...