Tanooryan v. Pima, County

          ORDER

          Honorable Raner C. Collins Senior United States District Judge

         Pending 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.

         I. STANDARD FOR MOTION TO DISMISS

         A 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).

         In this 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).

         II. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff 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.)

         Defendant 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.

         On June 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.

         III. DISCUSSION

         a. Response to Motion to Dismiss

         Plaintiff's 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.

         The 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 7.3.^[1] The Court will permit the amendment and therefore turns to the sufficiency of the Fifth Amended Complaint.

         b. Fifth ...