United States District Court, N.D. California, San Jose Division
ORDER ADOPTING REPORT AND RECOMMENDATION; GRANTING
APPLICATION TO PROCEED IN FORMA PAUPERIS; AND DISMISSING
COMPLAINT WITHOUT LEAVE TO AMEND [Re: ECF 1, 2, 5]
LAB SON FREEMAN, United States District Judge
Ernesto Miguel Heredia brings this action against West Valley
Staffing Group (“West Valley”) for allegedly
refusing to hire Heredia due to his age. Compl., ECF 1. The
Court has reviewed the Report and Recommendation
(“Report”) of Magistrate Judge Susan van Keulen.
Report, ECF 5. The Report recommends granting Heredia's
application to proceed in forma pauperis (“IFP”).
Report 4. However, the Report recommends dismissing
Heredia's complaint without leave to amend on the grounds
that Heredia filed the complaint maliciously. Id. No
objections to the Report have been filed and the deadline to
object has lapsed. See Fed. R. Civ. P. 6(d),
72(b)(2). The Court finds the Report correct, well-reasoned
and thorough, and adopts it in every respect for the reasons
complaint contains the following allegations: “[A]round
November 2017, I applied for a machine operator/mechanical
inspector position, and submitted my application and resume
to Sandra Lawrence, mid 30's senior recruiter. I was not
selected for the position.” “I believe that I was
discriminated against because of my age 47, in violation of
my rights as protected by the Age Discrimination in
Employment Act of 1967, as amended.” Compl. 2. The
complaint further alleges that “defendant's conduct
is discriminatory with respect to the following: age.”
Id. On February 26, 2018, Heredia filed his
complaint along with his IFP application.
may allow a plaintiff to prosecute an action in federal court
without prepayment of fees or security if the plaintiff
submits an affidavit showing that he or she is unable to pay
such fees or provide such security. See 28 U.S.C.
§ 1915(a). In his IFP application, Heredia states that
he has no income and savings at all. ECF 2. As such, Heredia
has satisfactorily shown that he is financially qualified to
proceed IFP. The Court therefore GRANTS Heredia's IFP
grant of an IFP application does not mean that the plaintiff
may continue to prosecute the case. A court has a duty to
dismiss a case that is filed without the payment of the
filing fee whenever it determines that the action “(i)
is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B)(i)-(iii). The Court finds that
Heredia fails to state a claim for on which a relief may be
granted and that Heredia filed this action maliciously.
Failure to State a Claim
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Here, however, Heredia fails to allege a plausible claim of
age discrimination. While the FAC alleges that Heredia is 47
years old and that he was not selected for a machine
operator/mechanical inspector position, Compl. 2, it is
devoid of factual allegations showing that the denial of his
job application was due to his age. Thus, the complaint fails
to plead a plausible case of age discrimination. For this
reason, Heredia's complaint must be dismissed. 28 U.S.C.
Malicious Filing of the Action
court may grant leave to amend the complaint for failure to
state a claim, § 1915(e) also requires the court to
dismiss the action if the action is “malicious.”
28 U.S.C. § 1915(e)(2)(B)(i). Under § 1915(e), a
claim is “malicious” when it is “filed with
the intention or desire to harm another.” Knapp v.
Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citing
Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.
2005)). Courts have dismissed a complaint as malicious when
the litigation was “plainly abusive of the judicial
process” or “merely repeats pending or former
litigation.” See, e.g., Hartsoe v.
Doyle, No. CV 14-63, 2015 WL 2095657, at *6 (D. Mont.
May 5, 2015) (quoting Abdul-Akbar v. Department of
Corrections, 910 F.Supp. 986, 999 (D.Del. 1995));
Lockhart v. Oakland Police Dep't, No. C 10-5483,
2010 WL 5387500, at *1 (N.D. Cal. Dec. 22, 2010)
(“Duplicative or repetitious litigation of virtually
identical causes of action is subject to dismissal under 28
U.S.C. 1915 as malicious.” (citing Bailey v.
Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)));
McWilliams v. State of Colo., 121 F.3d 573, 574
(10th Cir. 1997) (same).
van Keulen's Report concludes that this action is
malicious given the facts that (1) Heredia has repeatedly
filed complaints against staffing agencies, (2) Heredia's
five federal complaints against West Valley are nearly
identical, and (3) Heredia's previous complaints were
found to be malicious. Report 4. In particular, the Report
takes notice that Heredia has filed thirteen complaints
against staffing agencies in the Bay Area. Id. at 3.
In this court alone, Heredia has filed nine complaints
against staffing agencies. Id. This case is
Heredia's fifth action against West Valley within the
past sixteen months. Id. The previous four actions
against West Valley all have been dismissed: Heredia v.
W.Valley Staffing Grp., No. 16-cv-06777-HRL (revoking
IFP status in an order granting motion to dismiss);
Heredia v. W.Valley Staffing Grp., No.
17-cv-2253-SVK (N.D. Cal. May 18, 2017) (dismissed as
malicious); Heredia v. W.Valley Staffing Grp., No.
17-cv-2254-HRL (N.D. Cal. May 24, 2017) (dismissed as
malicious); and Heredia v. W.Valley Staffing Grp.,
No. 17-cv-4476-LHK (N.D. Cal. Feb. 14, 2018) (dismissed for
failure to prosecute).
Court agrees with the Report's conclusion that this
action is malicious. As the Report points out, Heredia has
repeatedly filed complaints against staffing agencies. Report
3. For the past sixteen months, Heredia has filed five
complaints against West Valley. The complaint in this case
and the complaints filed in the four earlier actions against
West Valley are similar except for the dates when the
discrimination allegedly occurred. See Compl.; No.
16-cv-06777-HRL, Dkt. 1; No. 17-cv-2253-SVK, Dkt. 1; No.
17-cv-2254-HRL, Dkt. 1; No. 17-cv-4476-LHK, Dkt. 1. While the
different dates may support distinct claims, the history and
behavior of Heredia's litigation indicate that he has
filed complaints with the intent to harm or harass West
Valley. In No. 16-cv-06777-HRL, the court found that Heredia
filed the action in a malicious manner and abused the
judicial process. Order Granting Motion to Dismiss, No.
16-cv-06777-HRL, Dkt. 22. Specifically, the court found that
Heredia had malicious motives which were revealed by his
emails to West Valley's counsel. Id. at 5. The
emails included 26 instances of insulting or profane
communications, including nine emails in one day.
Id. The emails included gender-, race-, national
origin-, and sexual orientation-based insults. Id.
Most importantly, in the emails, Heredia stated: “You
need to settle for 3, 500.00 before this goes to court or I
will have to go to the state a[nd] federal court and file
more lawsuits for retaliation on all recruiters that work for
west valley staffing.” Id. After the court
dismissed No. 16-cv-06777-HRL, Heredia continued to file
similar complaints against West Valley. Two of such
complaints were dismissed as malicious (No. 17-cv-2253-SVK;
No. 17-cv-2254-HRL), and his most recent complaint was
dismissed with prejudice for failure to prosecute (No.
Heredia has again filed a complaint similar to those in the
previous actions without any indication that he attempted
address the issues, including his repeated failure to state a
claim, that were identified by the court. Under these
circumstances, the Court finds that the complaint in this
action has been filed to harm West Valley and abuses the
judicial process, and is therefore malicious. Knapp,
738 F.3d at 1109 (holding that a complaint is malicious when
it is filed to harm another); Cato v. United States,
70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (affirming dismissal
under § 1915 where complaint “merely repeat[ed]
pending or previously litigate claims”). Such behavior
should not be encouraged. See Denton v. Hernandez,
504 U.S. 25, 30 (1992) (recognizing Congress' concern
that a “litigant whose filing fees and court costs are
assumed by the public, ...