United States District Court, E.D. California
ESSIE J. GILCHRIST, Plaintiff,
U.S. SMALL BUSINESS ADMINISTRATION AGENCY, Defendant.
FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se. This court granted
plaintiff in forma pauperis (“IFP”) status and
dismissed the original complaint for failure to meet the
pleading requirements of Federal Rule of Civil Procedure 8(a)
(“Rule 8). See ECF No. 3. Subsequently,
plaintiff filed her first amended complaint that was also
dismissed upon screening, for the same pleading defects. ECF
No. 5. In both instances, the court provided plaintiff with
guidance regarding the applicable rules and procedural
dismissal of her first amended complaint, the court granted
plaintiff thirty days to file a second amended complaint
(“SAC”). Plaintiff filed her SAC on January 6,
2017. ECF No. 6. That complaint is now before the court.
statute requires federal courts to dismiss a case if the
action is legally “frivolous” or fails to state a
claim upon which relief may be granted. 28 U.S.C. §
1915(e)(2). Plaintiff must assist the court in determining
whether the complaint is frivolous or not, by drafting his
complaint so that it complies with the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”). Under the Federal
Rules of Civil Procedure, the complaint must contain (1) a
“short and plain statement” of the basis for
federal jurisdiction (that is, the reason the case is filed
in this court, rather than in a state court), (2) a short and
plain statement showing that plaintiff is entitled to relief
(that is, who harmed the plaintiff, and in what way), and (3)
a demand for the relief sought. Fed.R.Civ.P. 8(a).
Plaintiff's claims must be set forth simply, concisely
and directly. Fed.R.Civ.P. 8(d)(1). The federal IFP statute
requires federal courts to dismiss a case if the action is
legally “frivolous or malicious, ” fails to state
a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Erickson v. Pardus,
551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum
of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010),
cert. denied, 564 U.S. 1037 (2011); Hebbe v.
Pliler, 627 F.3d 338, 340 (9th Cir. 2010). However, the
court need not accept as true, legal conclusions cast in the
form of factual allegations, or allegations that contradict
matters properly subject to judicial notice. See Western
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981); Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir.), as amended, 275 F.3d 1187
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). Pro se complaints are construed liberally and may
only be dismissed if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014). A pro se
litigant is entitled to notice of the deficiencies in the
complaint and an opportunity to amend, unless the
complaint's deficiencies could not be cured by amendment.
See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.
SECOND AMENDED COMPLAINT
the Second Amended Complaint (“SAC”) utilizes the
court's form Complaint for Employment Discrimination,
plaintiff's allegations are so vague and conclusory that
the court is unable to determine whether the current action
is frivolous or fails to state a claim for relief. Plaintiff
alleges violations of Title VII, the Age Discrimination in
Employment Act, and the Americans with Disabilities Act, due
to an alleged but unspecified failure to promote,
retaliation, harassment, and hostile work environment based
on plaintiff's race, color, gender, age, and disability.
ECF No. 6 at 5-6. Plaintiff's statement of supporting
facts reads, in its entirety, as follows:
Reference made to Title VII of the Civil Rights Act of 1964
as amended, 42 U.S.C. 2000 et seq to 2000 e- 17- in 2008 and
2011, I was denied positions of promotions for which I was
very qualified. Also, American with Disabilities Act of 1990
42 U.S.C. 12112 to 12117 Darphus J. O'Neal- September 20,
2011 25 24 incident and others which violated my civil
rights. Age Discrimination Act of 1990, as codified, 42
U.S.C. 2112 to 12117 in which the supervisors sought to
deceive and willfully obstruct my ability to compete for
employment by taking well sought after projects,
presentations, programs that were created by me. Retaliatory
Actions- with the Union, for filing an EEO Complaint, also
initiating the office staff to cause a Hostile Environment.
Several incidents of employees actually showing this behavior
in front of the Director. The incidents were in staff
meetings, with computer specialist and Admin Officer and
newly selected supervisor of Loan Specialist GS 13 position
on February 29, 2012.
ECF No. 6 at 2.
information provided is conclusory, incomplete, confusing and
vague. The SAC fails to provide the basic operative facts of
any adverse employment decision(s). For this reason, the
complaint does not contain the short and plain statement
required by Federal Rule of Civil Procedure 8(a)(2). Although
the Federal Rules adopt a flexible pleading policy, a
complaint must give fair notice and state the elements of the
claim plainly and succinctly. Jones v. Community
Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
Plaintiff must allege with at least some degree of
particularity overt acts which the defendant engaged in that
support plaintiffs claim. Id. Because plaintiff has
failed to comply with the requirements of Federal Rule of
Civil Procedure 8(a)(2), the complaint must be dismissed.
FUTILITY OF FURTHER AMENDMENT
the third time that the court has found a wholesale failure
to comply with Rule 8. Plaintiff has twice been granted leave
to amend, with instructions on how to satisfy Rule 8.
Plaintiff was warned that failure to adhere to these
standards would result in a dismissal of her complaint
without further leave to amend. ECF No. 5 at 5. Nevertheless,
plaintiff has failed to allege facts sufficient to state any
claim against. As plaintiff has had ample opportunity to
correct the deficiencies in her complaint, and she continues
to make conclusory allegations which the court previously
advised her are insufficient, the court finds that any