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Fox v. Carter

United States District Court, E.D. California

July 13, 2017

KEITH ANDERSON FOX, Plaintiff,
v.
HONORABLE ASHTON B. CARTER, Defendant.

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND THIRTY (30) DAY DEADLINE

          MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Keith Anderson Fox initiated this action on February 18, 2016. (ECF No. 1.) On August 25, 2016, his complaint was dismissed for failure to comply with Federal Rule of Civil Procedure 8 and failure to state a claim. (ECF No. 6.) His first amended complaint, filed February 16, 2017, is before the Court for screening. (ECF No. 7.)

         I. Screening Requirement

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint to determine if it states a cognizable claim. The Court must dismiss a complaint or portion thereof if it determines that the action has raised claims that are 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)(B). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

         III. Plaintiff's Allegations

         Plaintiff's complaint is brief and his factual allegations cursory. Briefly stated, Plaintiff alleges that he was wrongfully terminated by Defense Logistics Agency for being absent without leave. Copies of an agency decision attached to the complaint reflect that Plaintiff believes his dismissal was due to discrimination based on race, sex, age, and disability. He also appears to contend that he was harassed due to unspecified whistleblowing activity.

         IV. Analysis

         Plaintiff's factual allegations are insufficient to state a claim. The Court will provide Plaintiff with the legal standards applicable to what appear to be his intended claims. However, Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678. Here, Plaintiff provides no factual details to support his claim that his dismissal resulted from discrimination, nor does he describe the alleged harassment he suffered as a result of alleged whistleblowing activity. Plaintiff's conclusory statements are insufficient and the mere attachment of any agency decision does not meet applicable pleading standards. Fed.R.Civ.P. 8(a).

         Plaintiff will be given one final opportunity to amend his complaint to state facts supporting a cognizable cause of action. Failure to cure defects noted in this order will result in a recommendation that the action be dismissed.

         A. Title VII

         Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a).

         To prevail on a Title VII claim for disparate treatment, the plaintiff must prove that an adverse employment action was taken “because of” unlawful discrimination. Costa v. Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir.2002). Title VII disparate-treatment claims “require the plaintiff to prove that the employer acted with conscious intent to discriminate.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-06 (1973). to establish a prima facie case of disparate treatment, the plaintiff must show that (1) he belongs to a protected class, (2) he performed according to his employer's legitimate expectations, (3) he was subjected to an adverse employment action, ...


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