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Perez v. Johnson

United States District Court, D. Arizona

November 21, 2016

Patricia Perez, Plaintiff,
v.
Jeh Charles Johnson, Defendant.

          ORDER

          HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is pro se Plaintiff Patricia Perez's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2), which the Court will grant. However, as detailed below, after screening, the Court will dismiss Plaintiff's Complaint (Doc. 1) for failure to comply with Rule 8 of the Federal Rules of Procedure. The Court will allow Plaintiff leave to a file an amended Complaint.

         I. Application to Proceed in District Court Without Prepaying Fees and Costs

         In Plaintiff's Application for Leave to Proceed Without Prepaying Fees and Costs, she declares under penalty of perjury that she is unable to pay the filing fee and other costs associated with this case. Plaintiff has presented financial information to support her Application. Given Plaintiff's lack of significant income and assets, the Court will grant her Application.

         II. Legal Standards

         a. Screening IFP Complaints Pursuant to 28 U.S.C. § 1915(e)(2)

         For cases proceeding in forma pauperis, Congress provided that a district court “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (noting that section 1915(e) applies to all in forma pauperis complaints, not merely those filed by prisoners). Accordingly, “section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Lopez, 203 F.3d at 1127.

         b. Rule 8 of the Federal Rules of Civil Procedure

         Rule 8(a) of the Federal Rules of Civil Procedure provides that to state a claim for relief, a complaint must contain (1) “a short and plain statement of the grounds for the court's jurisdiction, ” (2) “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and (3) “a demand for the relief sought.” The complaint also 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)).

         Further, the complaint must also provide each defendant with a fair opportunity to frame a responsive pleading. McHenry v. Renne, 84 F.3d 1172, 1176 (9th Cir. 1996). Even where a complaint has the factual elements of a cause of action present but scattered throughout and not organized into a “short and plain statement of the claim, ” the Court may dismiss the complaint for failure to satisfy Rule 8. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988).

         III. Analysis of Plaintiff's Complaint

         In her Complaint, Plaintiff sues Jeh Charlese Johnson, as the Head of the Department of Homeland Security (TSA). (Doc. 1.) Plaintiff alleges that she suffered gender discrimination when in May 2011, she was demoted from her position as a Supervisor to an Officer. Plaintiff alleges that the reason given for her demotion initially was her leaving her scheduled shift early, but after an investigation occurred, it was determined Plaintiff “was incompetent administratively.” Plaintiff asserts that since her demotion, other male Supervisors “have had far more egregious offensive and received a mere slap on the wrist with no investigation or if there was an investigation a one or two day suspension.”

         Although Plaintiff states that this Court has jurisdiction over this case, she does not identify the specific statute under which she brings her claim. And, although she sues Jeh Johnson as the head of the TSA, and asserts allegations regarding the TSA, she does not specifically allege in her Complaint that she was employed by the TSA during the relevant time. However, assuming Plaintiff was an employee of the TSA, and to the extent Plaintiff is asserting a disparate treatment claim of gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 2000e, et. seq., she must establish the following elements of a prima facie case of gender discrimination: (1) she belongs to a protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably. Chuang v. University of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000).

         Further, “Title VII specifically requires a federal employee to exhaust [her] administrative remedies as a precondition to filing suit.” Vinieratos v. United States, 939 F.2d 762, 768-69 (9th Cir. 1991) (citing Brown v. General Serv. Admin., 425 U.S. 820, 832 (1976)). The Ninth Circuit Court has explained the ...


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