United States District Court, N.D. California
REQUEST FOR REASSIGNMENT; ORDER GRANTING IFP
APPLICATION; REPORT & RECOMMENDATION TO DISMISS WITH
PARTIAL LEAVE TO AMEND RE: ECF 1, 2
NATHANAEL M. COUSINS United States Magistrate Judge
plaintiff Liqiang Wei filed a complaint and application to
proceed in forma pauperis (IFP) in the Central District of
Illinois on January 2, 2018, and the case was transferred to
this Court on January 12, 2018. ECF 1, 2, 3. The complaint
alleges that the Department of Physics at Stanford University
discriminatorily failed to hire Wei based on his age,
national origin, and race. Upon review, the Court finds the
IFP application establishes that Wei cannot afford to pay the
court filing fees, and so GRANTS Wei's request to proceed
IFP. Screening under 28 U.S.C. § 1915(e)(2)(B), the
Court FINDS that the complaint fails to state a claim for
named parties have consented to the jurisdiction of a
magistrate judge pursuant to 28 U.S.C. § 636(c), so the
Court instructs the clerk of court to reassign this case to a
district judge. See Williams v. King, 875 F.3d
500, 503-04 (9th Cir. 2017). The Court RECOMMENDS that
Wei's claims under the ADEA and Title VII be DISMISSED
without leave to amend, but also without prejudice to
re-filing these claims in the future, and RECOMMENDS that
Wei's claim under 42 U.S.C. § 1981 be DISMISSED with
leave to amend.
IN FORMA PAUPERIS APPLICATION
to 28 U.S.C. § 1915, a district court may authorize the
commencement of a civil action in forma pauperis if it is
satisfied that the would-be plaintiff cannot pay the filing
fees necessary to pursue the action. 28 U.S.C. §
1915(a)(1). Wei's application establishes that, between
the reported income and debts, Wei is unable to afford the
filing fees. The motion to proceed IFP is therefore GRANTED.
SCREENING UNDER 28 U.S.C. § 1915(e)(2)(B)
payment of any filing fee or portion thereof, a complaint
filed by any person proceeding in forma pauperis pursuant to
28 U.S.C. § 1915(a) is subject to a mandatory and sua
sponte review and dismissal by the Court if the complaint is
frivolous, 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); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc). A complaint is frivolous
for purposes of 28 U.S.C. § 1915(e)(2)(B) if it lacks an
arguable basis either in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Similarly, a
complaint fails to state a claim under Federal Rule of Civil
Procedure 12(b)(6) unless it includes sufficient facts that,
if accepted as true, state a claim “that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted); see also
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
complaint, Wei asserts that he is a world class physicist and
that Stanford University's physics department
discriminated against him by declining to hire him. The
complaint claims that Wei is “a number one theoretical
physicist in the world at the present time, ” who has
“made the essential and major contributions in quantum
physics and quantum mechanics, and [has] the greatest and
decisive achievements in quantum many-body theory and quantum
statistics mechanics that are paramount to all the
application fields of modern physics.” ECF 1-2 (Compl.
Attachment 2 ¶ 1). Wei has been applying for a professor
position in the Department of Physics at Stanford University
“for a long time, ” but assertedly has been
“mistreated with a denial” every time.
Id. ¶ 2.
rise to the current action, Wei most recently applied to
teach at Stanford on October 16, 2017, and amended his
application on October 19, 2017. ECF 1-4 (Compl. Attachment
4). Although he does not specify how or when his application
was denied, the complaint states that Wei and Stanford last
corresponded on October 19, 2017, and seemingly on that basis
Wei asserts that “they must have denied my job
application for this year too as has been stated, and have
also failed to promote my job qualification as has been
seen.” Compl. Attachment 2 ¶ 4. Wei contends that
“[b]ecause of [his] academic status . . ., it is
obvious that [he] must have been offered the job[.]”
Id. ¶ 2. Because he is “extremely
overqualified, ” and because Stanford is unable to give
“any good reasons” for denying his application,
Wei asserts “it is simply that if [he] were a white
race or of the related origin or younger age, then [he] could
be offered the job immediately in all [his]
applications!” Id. ¶ 4.
Wei alleges (1) age discrimination under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §
621; (2) national origin and race discrimination under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e; and (3) race discrimination under 42 U.S.C.
§ 1981. ECF 1 (Compl. at 2). Wei seeks damages and
injunctive relief, and asks the Court to order Stanford to
accept Wei's application and to promote him. Id.
at 4; Compl. Attachment 2 at 3.
Wei Does Not Name a ...