United States District Court, E.D. California
PAUL T. BAILET-STONER, Plaintiff,
LISA SALCIDO, ELAINA CAMAS, MARIA EGLACIAS, and PRODUCT DEVELOPMENT CORPORATION, Defendants.
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915. His declaration makes the showing required
by 28 U.S.C. §1915(a)(1) and (2). See ECF No.
2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must dismiss the case at any time if it
determines the allegation of poverty is untrue, or if the
action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
an immune defendant. As discussed below, plaintiff's
complaint states a potentially cognizable Title VII claim
against Product Development Corporation, but fails to state
any other claim for relief.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, must be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id.
(citations omitted). Dismissal is appropriate based either on
the lack of cognizable legal theories or the lack of pleading
sufficient facts to support cognizable legal theories.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex
Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
pleading in the light most favorable to the plaintiff, and
resolve all doubts in the plaintiff's favor, Jenkins
v. McKeithen, 395 U.S. 411, 421 (1969). A pro se
plaintiff must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2)
requires a complaint to include “a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (citing Conley v.
Gibson, 355 U.S. 41 (1957)).
a federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U.S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U.S. Constitution, or (3) be authorized by a federal
statute that both regulates a specific subject matter and
confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court's diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
complaint appears to allege that plaintiff was terminated
from his employment at Product Development Corporation on the
basis of ethnicity. ECF No. 1 at 4-5. Plaintiff claims that
Maria Eglacias, a manager with PDC, notified him that
“the Mexicans were like her family . . . and she was
keeping them [employed] instead of the Americans, ”
including plaintiff. Id. at 5. Plaintiff further
alleges that defendant Elaina Comas, also a manager,
repeatedly told him “that the Mexicans could keep
working and [plaintiff] could not (race).” Plaintiff
was also allegedly informed that if he ever wanted to work
for PDC again he would need to sleep in his car without pay.
Id. at 4. Appended to the complaint is a Notice of
Right to Sue issued by the Equal Employment Opportunity
Commission, which, in conjunction with plaintiff's
allegations, suggests that he is attempting to allege a claim
under Title VII of the Civil Rights Act of 1964. Id.
VII prohibits employment discrimination based on race, color,
religion, sex, or national origin. 42 U.S.C. §
2000e-2(a). A person suffers disparate treatment when he is
“singled out and treated less favorably than others
similarly situated on account” of his membership in a
protected class. McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1121 (9th Cir. 2004) (internal quotations
omitted). Here, plaintiff's complaint, when liberally
construed, states a Title VII claim against his former
employer, defendant Product Development Corporation. However,
his Title VII claims against defendants Lisa Salcido, Maria
Eglacias, and Elaina Comas, who are all managers at Product
Development Corporation, must be dismissed. “Under
Title VII, there is no personal liability for employees,
including supervisors.” Greenlaw v. Garrett,
59 F.3d 994, 1001 (9th Cir. 1995); see also Craig v. M
& O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir.
2007) (“We have long held that Title VII does not
provide a separate cause of action against supervisors or
co-workers.”). Accordingly, plaintiff fails to allege a
Title VII claim against the individual defendants.
complaint also makes multiple references to “fair
housing.” See ECF No. 1 at 4 (“I was
asked to sleep in my car without hourly pay like the Mexicans
they kept working (fair housing.”); 5 (“Rigt
[sic] to fair housing in work place Racism in work
place.”). Given the allegation in the complaint,
plaintiff may be attempting to assert a discrimination claim
under California's Fair Employment and Housing Act
(“FEHA”), but this is not clear from the
complaint. See Guz v. Bechtel Nat'l Inc., 24
Cal.4th 317, 354 (2000) (discrimination claims under the FEHA
are analyzed under the same framework as Title VII claims).
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's references to “fair housing” are
insufficient to provide notice to defendants as to whether he
is asserting a FEHA claim.
these reasons, plaintiff may either proceed only on the
potentially cognizable Title VII claim against defendant
Product Development Corporation or he may amend his complaint
to attempt to cure the complaint's deficiencies.
Plaintiff is not obligated to amend his complaint. However,
should he choose to so, the amended complaint must clearly
set forth the allegations against each defendant and shall
specify a basis for this court's subject matter
jurisdiction. Any amended complaint shall plead
plaintiff's claims in “numbered paragraphs, each
limited as far as practicable to a single set of
circumstances, ” as required by Federal Rule of Civil
Procedure 10(b), and shall be in double-spaced text on paper
that bears line numbers in the left margin, as required by
Eastern District of California Local Rules 130(b) and 130(c).
Any amended complaint shall also use clear headings to
delineate each claim alleged and against which defendant or
defendants the claim is alleged, as required by Rule 10(b),
and must plead clear facts that support each claim under each
plaintiff is informed that the court cannot refer to prior
pleadings in order to make an amended complaint complete.
Local Rule 220 requires that an amended complaint be complete
in itself. This is because, as a general rule, an amended
complaint supersedes the original complaint. See Loux v.
Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once
plaintiff files an amended complaint, the original no longer
serves any function in the case. Therefore, “a
plaintiff waives all causes of action alleged in the original
complaint which are not alleged in the amended complaint,
” London v. Coopers & Lybrand, 644 F.2d
811, 814 (9th Cir. 1981), and defendants not named in an
amended complaint are no longer defendants. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally,
the court cautions plaintiff that failure to comply with the
Federal Rules of Civil Procedure, this court's Local
Rules, or any court order may result in a recommendation that
this action be dismissed. See E.D. Cal. L.R. 110.
IT IS ORDERED that:
Plaintiff's request for leave to proceed in forma
pauperis (ECF No. 2) is granted.
allegations in the complaint are sufficient to state a
potentially cognizable Title VII claim against defendant
Product Development Corporation. All other claims and
defendants are dismissed with leave to amend within 30 days
of service of this order. Plaintiff is not obligated to amend
his compliant if he ...