United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”), and has
submitted the affidavit required by that statute.
See 28 U.S.C. § 1915(a)(1). The motion to
proceed IFP will therefore be granted.
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).
Plaintiff must assist the court in determining whether or not
the complaint is frivolous, by drafting the complaint so that
it complies with the Federal Rules of Civil Procedure
(“Fed. R. Civ. P.”). The Federal Rules of Civil
Procedure are available online at
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). Forms are
available to help pro se plaintiffs organize their complaint
in the proper way. They are available at the Clerk's
Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA
95814, or online at www.uscourts.gov/forms/pro-se-forms.
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; 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).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
Pro se pleadings are held to a less stringent standard than
those drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
state a claim on which relief may be granted, the plaintiff
must allege enough facts “to state a claim to relief
that is plausible on its face.” 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. 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. 1987), superseded on other grounds by statute as
stated in Lopez v. Smith, 203 F.3d 1122 (9th
Cir.2000)) (en banc).
brings suit against Siemens Mobility and Superior Group under
Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (“ADEA”). ECF
No. 1 at 2-4. Plaintiff's complaint appears to be
premised on a denial of employment due to a past criminal
conviction. Specifically, plaintiff alleges that defendant
Superior Group did an employment screening for Siemens, and
that “Siemens administration facially-neutral policy or
procedures specifically, criminal procedures, policies that
disproportionately afects [sic.] plaintiff who is African
American policy is job related for position in question and
consistent with business necessity.” ECF No. 1 at 5.
Plaintiff further alleges that “criminal conviction is
not job related” and that “alternative employment
practice that serves the employee legitimate goal effected as
the challenge practice.” Id. Plaintiff seeks
earning of potential wages and punitive damages for
“failure to hire with criminal conviction.”
complaint does not contain facts supporting any cognizable
legal claim against any defendant. Plaintiff, who has
previously brought a similar action in this district, has
been cautioned that in general “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.” Stevens v. IMKO Workforce
Sols., No. 217-cv-1026-MCE-KJN-PS, 2017 WL 4284639, at
*2 (E.D. Cal. Sept. 27, 2017). Additionally, plaintiff has
previously been warned that the conclusory allegation that
his rejection on the basis of criminal history was pretext
for racial discrimination, unsupported by specific factual
allegations demonstrating pretext, is not sufficient to state
a claim. Id.
complaint now before the court does not clearly state
allegations that support any legal claim. In this case,
plaintiff fails to assert facts to support his belief that
his failure to be hired was due to his criminal conviction.
Even if he had alleged such facts, they would fail to state a
claim for relief under any employment discrimination statute.
Moreover, plaintiff does not allege facts demonstrating a
basis for his belief that rejection on the basis of his
criminal conviction was a pretext for unlawful
discrimination. Plaintiff's complaint makes only the
conclusory assertion that his criminal conviction was not
work related, but he does not assert any facts related to how
he was otherwise qualified for the position(s) at issue.
Plaintiff alleges no facts whatsoever to support his ADEA