United States District Court, C.D. California
Present: The Honorable Steve Kim, U.S. Magistrate Judge.
CIVIL MINUTES - GENERAL
CHAMBERS) ORDER TO SHOW CAUSE
seeks to proceed in forma pauperis with a Title VII complaint
alleging that Space Explorations Technologies Corporation
("SpaceX") discriminated against him by not hiring
him as a "Project and Management Lead" for SpaceX
because he is African American. (ECF 1 at 3, 5-6). But
because Plaintiff has failed to allege administrative
exhaustion, the Court has no jurisdiction to consider his
complaint. See Karim-Panahi v. Los Angeles Police
Dep't, 839 F.2d 621, 626 (9th Cir. 1988);
Fed.R.Civ.P. 12(h)(3). And even if the Court had
jurisdiction, the complaint fails to state a claim on which
relief may be granted. See 28 U.S.C. §
1915(e)(2)(B)(ii); Fed.R.Civ.P. 12(b)(6); Sparling v.
Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988).
the Court lacks jurisdiction because the complaint fails to
allege that Plaintiff has exhausted administrative remedies
under 42 U.S.C. § 2000e-5 before filing suit here. To
exhaust administrative remedies, Plaintiff must file a
discrimination charge with the Equal Employment Opportunity
Commission ("EEOC") and obtain a right-to-sue
letter. See Karim-Panahi, 839 F.2d at 626 (citing 42
U.S.C. § 2000e-5(f)(1)). "Failure to observe these
requirements renders a suit subject to dismissal in the
absence of any equitable consideration to the contrary."
Id. While Plaintiff attached a notice from
California's Department of Fair Employment & Housing
showing that his charge has also been filed with the EEOC
(ECF 1 at 10), nowhere does that notice or anything alleged
in the complaint show that Plaintiff received a right-to-sue
letter from the EEOC. Until Plaintiff receives that letter,
the Court lacks jurisdiction over his complaint. See
Karim-Panahi, 839 F.2d at 626 (affirming dismissal of
Title VII complaint lacking right-to-sue letter);
Mitchell v. Akal Sec, Inc., 358 Fed.Appx. 932, 932
(9th Cir. 2009) ("The district court properly dismissed
the Title VII claims because Mitchell did not plead or argue
that she exhausted her administrative remedies under Title
VII."); Luevano v. Dawoodbhai, 2018 WL 2315954,
at *5 (CD. Cal. May 18, 2018) (same).
even if Plaintiff has received a right-to-sue letter, his
allegations still fail to state a Title VII claim on which
relief may be granted. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (Plaintiff must allege
"enough facts to state a claim to relief that is
plausible on its face."). To state a claim for
discrimination based on failure to hire, Plaintiff must
allege "(1) that he belongs to a racial minority; (2)
that he applied and was qualified for a job for which the
employer was seeking applicants; (3) that, despite his
qualifications, he was rejected; and (4) that, after his
rejection, the position remained open and the employer
continued to seek applicants." Norris v. City &
County of San Francisco, 900 F.2d 1326, 1329 (9th Cir.
1990). Nothing in Plaintiffs complaint (including the
attached incomplete resume), however, alleges facts plausibly
suggesting that he is qualified to be a SpaceX "Project
and Management Lead." Indeed, the complaint says nothing
about that position's requirements, so it is impossible
to know whether Plaintiff has even properly alleged that he
is qualified to meet those-yet unknown-requirements. But that
is an essential element of a Title VII discrimination claim
for failure to hire. See Morita v. S. California
Permanente Med. Grp., 541 F.2d 217, 219 (9th Cir. 1976);
Slaughter-Payne v. Nicholson, 2007 WL 9658013, at *3
(D. Ariz. Mar. 21, 2007). Plaintiff has also alleged no facts
showing that the SpaceX position remained open after he
applied, and that SpaceX continued to seek applicants after
rejecting him. Even "a liberal interpretation of a civil
rights complaint may not supply essential elements of the
claim that were not initially pled." Ivey v. Bd. of
Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
these reasons, Plaintiff is ORDERED TO SHOW CAUSE on or
before December 7, 2019. why his in
forma pauperis application should not be denied and this
action dismissed because of the deficiencies outlined above.
To discharge this order, Plaintiff must do
one of the following:
(1) File a First Amended Complaint ("FAC") curing
all the deficiencies described in this order. See
Rodriguez v. Steck, 795 F.3d 1187, 1188 (9th Cir. 2015).
The FAC must be complete in itself, as it will supersede the
original complaint entirely.
(2) File a Response stating that Plaintiff wants to stand on
the original complaint as alleged with reasons explaining why
the complaint is not deficient as described in this order.
(3) File a Voluntary Dismissal WITHOUT PREJUDICE using the
attached form CV-09, if Plaintiff cannot yet cure the
deficiencies described in this order.
Plaintiff fails to take one of these actions by
December 7. 2019. this action may
be dismissed involuntarily in its entirety for failure to
prosecute. See Fed. R. Civ. P. 41(b); L.R. 41-1. If
Plaintiff files either an amended complaint that does
not cure the deficiencies described in this order or
an inadequate response to the reasoning and conclusion of
this order, the Court will recommend that Plaintiffs in forma
pauperis application be denied and the complaint dismissed
without leave to amend.