United States District Court, D. Arizona
Honorable Raner C. Collins Senior United States District
before the Court is Defendant Pima County's Motion to
Dismiss Plaintiff's Fourth Amended Complaint. (Doc. 27.)
Plaintiff filed a Response (Doc. 29) and Defendant a Reply.
(Doc. 30.) The Court will: (1) construe the Response as a
Motion to file a Fifth Amended Complaint, (2) grant the
amendment, (3) deny Defendant's Motion to Dismiss, and
(4) require Defendants to answer the Fifth Amended Complaint.
STANDARD FOR MOTION TO DISMISS
motion under 12(b)(6) must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. The
complaint must contain more than “a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action.” Bell Atlantic Corp., 550
U.S. at 555. However, complaints drafted by pro se litigants
are held to less stringent standards than complaints formally
filed by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010).
instance, to establish a prima facie case of discrimination
based on national origin, a plaintiff must plead facts
suggesting direct evidence of discriminatory intent.
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220
(9th Cir. 1993). A plaintiff may also sufficiently claim
discrimination, if no direct evidence of discriminatory
intent exists, by pleading facts demonstrating that plaintiff
(1) belongs to a protected class, (2) was adequately
performing her duties to the expectations of the employer,
(3) was subjected to an adverse employment action, and (4)
other similarly-situated employees were treated more
favorably. Chuang v. Univ. of Cal. Davis, Bd. of
Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000).
FACTUAL AND PROCEDURAL HISTORY
has had several opportunities to amend her complaint. The
first two complaints were amended before Defendant was
served. The Court dismissed her Third Amended Complaint with
leave to amend and informed Plaintiff she was required to
follow the Local and Federal Rules of Civil Procedure. (Doc.
23.) The Court also gave Plaintiff information about the
advice-only clinic for pro se litigants to assist her with an
amended complaint. Id. On April 25, 2019, Plaintiff
filed her Fourth Amended Complaint in response to the
Court's Order, but the filing appeared to simply be a
letter to the Court, restating her discriminatory
allegations. (Doc. 25.)
then filed a Motion to Dismiss alleging that the Fourth
Amended Complaint failed to state the basis for federal
jurisdiction and that there was still no direct or
circumstantial evidence that Plaintiff was discriminated
against by Pima County. (Doc. 27.) Defendant also argued that
Plaintiff did not show that another employee was similarly-
situated because the analogous employee, Mr. Chestnut, was
willing to work on Sundays when she was not. Additionally,
Defendant asserted that Plaintiff had claimed Mr. Chestnut
was given more favorable hours, but she failed to state that
Mr. Chestnut was not a member of a protected class.
7, 2019, Plaintiff filed a Response to the allegations in the
Motion to Dismiss. (Doc. 29.) The Response did not directly
address the arguments in the motion; rather, the filing
appeared to be an attempt at a Fifth Amended Complaint.
Defendant retorted that the Court should ignore the Response
because it was not responsive and improperly raised new
facts. (Doc. 30.) Defendant also argued that even if
Plaintiff's Response was taken as an unauthorized Fifth
Amended Complaint, it still failed to state a claim of direct
or circumstantial evidence of discrimination and the case
should be dismissed with prejudice. Id. at 3.
Response to Motion to Dismiss
Response to the Defendant's Motion to Dismiss was
inappropriately filed as an unauthorized amended complaint,
rather than a true response. Fed.R.Civ.P. 15(a)(1);
Sudduth v. Citimortgage, Inc., 79 F.Supp.3d 1193,
1199 (D. Colo. 2015) (“Plaintiffs cannot amend their
complaint by adding factual allegations in response to
Defendants . . . motion to dismiss.”) (citing
Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995).
However, the Response notes that Plaintiff had a scheduled
appointment with the District Court's pro se clinic, but
it was after the deadline to file an Amended Complaint.
Because of this, she was unable to correct the deficiencies
in time, and instead included them in her Response. While the
Response does not directly address the allegations in the
Defendant's Motion to Dismiss, it does remedy the
deficiencies stated in the motion.
Court acknowledges the procedural error, but will liberally
construe the Response as a Motion to Amend - i.e. a Proposed
Fifth Amended Complaint. Castro v. United States,
540 U.S. 375, 382-83 (2003) (Courts may construct pro se
filings in a way that “create[s] a better
correspondence between the substance of a pro se
motion's claim and its underlying legal basis.”).
But, Plaintiff is warned that future filings must be timely
and if Plaintiff requires an extension of time she must file
a motion pursuant to Local Rule of Civil Procedure
The Court will permit the amendment and therefore turns to
the sufficiency of the Fifth Amended Complaint.