1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 STEVEN COHEN, Case No. 2:19-cv-01033-APG-EJY
5 Plaintiff, ORDER 6 v.
7 UNITED STATES OF AMERICA— DEPARTMENT OF HEALTH AND 8 HUMAN SERVICES, et al.,
9 Defendants.
10 11 Pending before the Court is Plaintiff Steven Cohen’s Second Amended Complaint (ECF No. 12 10) and Emergency Motion to Extend Time or Provide Alternative Means for Service of Process 13 Due to Covid-19. ECF No. 24. Over a year ago, on August 1, 2019, Magistrate Judge George Foley 14 granted Plaintiff’s Application for Leave to Proceed in forma pauperis and dismissed Plaintiff’s 15 original Complaint (ECF No. 1) without prejudice with leave to amend. ECF No. 4. Thereafter, 16 Plaintiff timely filed his Amended Complaint after which the Court entered a Report and 17 Recommendation recommending that Plaintiff’s Amended Complaint (ECF No. 6) be dismissed 18 without prejudice with leave to amend. ECF No. 9. Plaintiff timely filed a Second Amended 19 Complaint (ECF No. 10), and the District Judge adopted the Court’s Report and Recommendation 20 four days later. ECF No. 11. Plaintiff’s Second Amended Complaint is now screened. 21 I. Screening Plaintiff’s Second Amended Complaint (ECF No. 10). 22 When screening a complaint, a court must identify cognizable claims and dismiss claims that 23 are frivolous, malicious, fail to state a claim on which relief may be granted or seek monetary relief 24 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to 25 state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal 26 Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 27 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state 1 liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the 2 plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 3 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 4 In considering whether a complaint is sufficient to state a claim, all allegations of material 5 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 6 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 7 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 8 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 9 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 10 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 11 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 12 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Plaintiff’s Second Amended Complaint does not identify a cause of action. Rather, in the 14 Conclusion, based on substantial facts alleged, Plaintiff states he was wrongfully terminated and is 15 due lost wages and benefits. No cause of action is identified. Plaintiff does not mention the 16 Americans with Disabilities Act or otherwise identify any recognized cause of action under Nevada 17 law. Nonetheless, despite the failure to identify a cause of action, a liberal reading of the Second 18 Amended Complaint appears to allege violations of the Americans with Disabilities Act (“ADA”) 19 and concomitant state law based on failures to accommodate and a discriminatory or, potentially, 20 retaliatory discharge. 21 Thus, the Court assumes, as it did after reviewing Plaintiff’s original Complaint, that Plaintiff 22 is attempting to bring a claim under Title I of the ADA. ECF No. 4. The Court nonetheless notes 23 that the Right-to-Sue notice Plaintiff attaches to his Second Amended Complaint is dated March 15, 24 2019. ECF No. 10 at 9. As stated on the face of the Right-to-Sue notice, Plaintiff had to file his suit 25 within 90 days of receipt of the notice. Id.; Marczuk v. Las Vegas Metropolitan Police Dept., Case 26 No. 2:11–cv–00462–APG–CWH, 2013 WL 5564062, at *3 (D. Nev. Oct. 7, 2013) (“[B]efore a 27 plaintiff can file an action for an alleged violation of Title VII, he must file a timely charge of 1 2000e–5(e)(1) & (f)(1).”). Plaintiff’s Second Amended Complaint was clearly filed long after the 2 90 day period that followed the date on his Right-to-Sue notice. For this reason, Plaintiff’s Second 3 Amended Complaint only survives if it relates back to his original Complaint filed on June 17, 2019.1
4 II. Plaintiff’s Complaint Relates Back to his Original Complaint and Plaintiff is Given One Last Opportunity to Serve his Second Amended Complaint. 5 6 Rule 15(c) of the Federal Rules of Civil Procedure states: “[a]n amendment to a pleading 7 relates back to the date of the original pleading” in three circumstances. First, relation back is 8 permitted if “the law that provides the applicable statute of limitations allows relation back.” Fed. 9 R. Civ. P. 15(c)(1)(A). Here, the Court found no law providing the statute of limitations expressly 10 allows relation back in Title I ADA cases. Second, relations back is permitted if “the amendment 11 asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or 12 attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Rule 15(c)(1)(B) is 13 satisfied.2 14 As stated by the Court on August 1, 2019, “Plaintiff’s complaint alleges claims of wrongful 15 termination, and discrimination based on disability. He references an Equal Employment 16 Opportunity Commission (“EEOC”) investigation but failed to provide the requisite Notice of Right 17 to Sue letter issued by the Commission. Thus, the Court will issue this Order as if Plaintiff has 18 exhausted his administrative remedies. Plaintiff, however, must provide proof of such as detailed 19 more fully below.” ECF No. 4. The August 1, 2019 Order further stated: “Plaintiff shall have until 20 August 30, 2019 to provide the Court with proof that he has exhausted all administrative remedies 21 with the EEOC.” Id. (emphasis in original). 22 Plaintiff filed an Amended Complaint on August 29, 2019, and stated that the Right-to-Sue 23 notice was received on March 19, 2019. ECF No. 6 at 3. Therefore, Plaintiff complied with the 24
25 1 Although Plaintiff fails to identify a cause of action, the Second Amended Complaint is not futile as there are clearly a set of facts that state a claim. Plaintiff’s failure is not clearly identifying the cause of action or actions under 26 which he seeks relief. Baker v. Pacific Far East Lines, Inc., 451 F.Supp. 84, 89 (N. D. Cal. 1978) (a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and 27 sufficient claim or defense). For this reason, in accordance with well settled law, the Court does not dismiss this pro se plaintiff’s Second Amended Complaint. 1 Court’s August 1, 2019 Order.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 STEVEN COHEN, Case No. 2:19-cv-01033-APG-EJY
5 Plaintiff, ORDER 6 v.
7 UNITED STATES OF AMERICA— DEPARTMENT OF HEALTH AND 8 HUMAN SERVICES, et al.,
9 Defendants.
10 11 Pending before the Court is Plaintiff Steven Cohen’s Second Amended Complaint (ECF No. 12 10) and Emergency Motion to Extend Time or Provide Alternative Means for Service of Process 13 Due to Covid-19. ECF No. 24. Over a year ago, on August 1, 2019, Magistrate Judge George Foley 14 granted Plaintiff’s Application for Leave to Proceed in forma pauperis and dismissed Plaintiff’s 15 original Complaint (ECF No. 1) without prejudice with leave to amend. ECF No. 4. Thereafter, 16 Plaintiff timely filed his Amended Complaint after which the Court entered a Report and 17 Recommendation recommending that Plaintiff’s Amended Complaint (ECF No. 6) be dismissed 18 without prejudice with leave to amend. ECF No. 9. Plaintiff timely filed a Second Amended 19 Complaint (ECF No. 10), and the District Judge adopted the Court’s Report and Recommendation 20 four days later. ECF No. 11. Plaintiff’s Second Amended Complaint is now screened. 21 I. Screening Plaintiff’s Second Amended Complaint (ECF No. 10). 22 When screening a complaint, a court must identify cognizable claims and dismiss claims that 23 are frivolous, malicious, fail to state a claim on which relief may be granted or seek monetary relief 24 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to 25 state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal 26 Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 27 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state 1 liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the 2 plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 3 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 4 In considering whether a complaint is sufficient to state a claim, all allegations of material 5 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 6 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 7 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 8 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 9 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 10 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 11 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 12 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Plaintiff’s Second Amended Complaint does not identify a cause of action. Rather, in the 14 Conclusion, based on substantial facts alleged, Plaintiff states he was wrongfully terminated and is 15 due lost wages and benefits. No cause of action is identified. Plaintiff does not mention the 16 Americans with Disabilities Act or otherwise identify any recognized cause of action under Nevada 17 law. Nonetheless, despite the failure to identify a cause of action, a liberal reading of the Second 18 Amended Complaint appears to allege violations of the Americans with Disabilities Act (“ADA”) 19 and concomitant state law based on failures to accommodate and a discriminatory or, potentially, 20 retaliatory discharge. 21 Thus, the Court assumes, as it did after reviewing Plaintiff’s original Complaint, that Plaintiff 22 is attempting to bring a claim under Title I of the ADA. ECF No. 4. The Court nonetheless notes 23 that the Right-to-Sue notice Plaintiff attaches to his Second Amended Complaint is dated March 15, 24 2019. ECF No. 10 at 9. As stated on the face of the Right-to-Sue notice, Plaintiff had to file his suit 25 within 90 days of receipt of the notice. Id.; Marczuk v. Las Vegas Metropolitan Police Dept., Case 26 No. 2:11–cv–00462–APG–CWH, 2013 WL 5564062, at *3 (D. Nev. Oct. 7, 2013) (“[B]efore a 27 plaintiff can file an action for an alleged violation of Title VII, he must file a timely charge of 1 2000e–5(e)(1) & (f)(1).”). Plaintiff’s Second Amended Complaint was clearly filed long after the 2 90 day period that followed the date on his Right-to-Sue notice. For this reason, Plaintiff’s Second 3 Amended Complaint only survives if it relates back to his original Complaint filed on June 17, 2019.1
4 II. Plaintiff’s Complaint Relates Back to his Original Complaint and Plaintiff is Given One Last Opportunity to Serve his Second Amended Complaint. 5 6 Rule 15(c) of the Federal Rules of Civil Procedure states: “[a]n amendment to a pleading 7 relates back to the date of the original pleading” in three circumstances. First, relation back is 8 permitted if “the law that provides the applicable statute of limitations allows relation back.” Fed. 9 R. Civ. P. 15(c)(1)(A). Here, the Court found no law providing the statute of limitations expressly 10 allows relation back in Title I ADA cases. Second, relations back is permitted if “the amendment 11 asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or 12 attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Rule 15(c)(1)(B) is 13 satisfied.2 14 As stated by the Court on August 1, 2019, “Plaintiff’s complaint alleges claims of wrongful 15 termination, and discrimination based on disability. He references an Equal Employment 16 Opportunity Commission (“EEOC”) investigation but failed to provide the requisite Notice of Right 17 to Sue letter issued by the Commission. Thus, the Court will issue this Order as if Plaintiff has 18 exhausted his administrative remedies. Plaintiff, however, must provide proof of such as detailed 19 more fully below.” ECF No. 4. The August 1, 2019 Order further stated: “Plaintiff shall have until 20 August 30, 2019 to provide the Court with proof that he has exhausted all administrative remedies 21 with the EEOC.” Id. (emphasis in original). 22 Plaintiff filed an Amended Complaint on August 29, 2019, and stated that the Right-to-Sue 23 notice was received on March 19, 2019. ECF No. 6 at 3. Therefore, Plaintiff complied with the 24
25 1 Although Plaintiff fails to identify a cause of action, the Second Amended Complaint is not futile as there are clearly a set of facts that state a claim. Plaintiff’s failure is not clearly identifying the cause of action or actions under 26 which he seeks relief. Baker v. Pacific Far East Lines, Inc., 451 F.Supp. 84, 89 (N. D. Cal. 1978) (a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and 27 sufficient claim or defense). For this reason, in accordance with well settled law, the Court does not dismiss this pro se plaintiff’s Second Amended Complaint. 1 Court’s August 1, 2019 Order. However, Plaintiff’s Amended Complaint was dismissed without 2 prejudice for failure to state a claim because he asserted his cause of action under the wrong ADA 3 Title—a title that provides no relief to Plaintiff. ECF No. 11 (adopting the Report and 4 Recommendation) issued on January 7, 2020). Plaintiff then timely filed his Second Amended 5 Complaint, which was four days before the Court entered the Order adopting the recommended 6 dismissal with leave to amend. ECF Nos. 9 and 10. 7 Plaintiff had 90 days from the filing of the Second Amended Complaint to attempt to serve 8 Defendants. Fed. R. Civ. P. 4(m). Plaintiff did not seek a summons until July 15, 2020, more than 9 seven months after his Second Amended Complaint was filed. Compare ECF Nos. 10 and 20. In 10 fact, Plaintiff took no steps to attempt to serve Defendants before August 21, 2020. ECF No. 24 at 11 2. Plaintiff explains this failure by stating the Court shut down in mid-March (id.), but that is not 12 accurate. General Order 2020-2, issued on March 13, 2020, provides guidance regarding 13 appearances and access to the Courthouse expressly advising that if an individual has any question 14 “related to the U.S. District Court” they are asked to “please contact the Clerk’s Office in Las Vegas 15 at (702) 464-5453.” General Order 2020-3 issued on March 16, 2020, provides information 16 regarding trials and criminal matters, but states that the Order “does not affect other aspects of the 17 District’s court operations.” The Courthouse was never closed. 18 This is a case in which Plaintiff was given two opportunities to amend, did so, but made no 19 effort to serve for eight months after the Second Amended Complaint was filed despite filing his 20 Second Amended Complaint two full months before the first case of Covid-19 was reported in 21 Nevada on March 5, 2020. https://www.reviewjournal.com/investigations/6-months-after-first- 22 nevada-case-covid-data-takes-positive-turn-2111682/. This delay is hard to overlook. The law 23 “presumes prejudice from unreasonable delay.” In re Phenylpropanolamine (PPA) Prods. Liab. 24 Litig., 460 F.3d 1217, 1227 (9th Cir. 2006). This is especially true given that, while Plaintiff’s 25 Second Amended Complaint is not futile (see n.1), this is his third attempt to plead a claim and the 26 attempt is possibly subject to dismissal based on his failure to identify a cause of action. 27 Nevertheless, Plaintiff’s Motion seeking to extend the time to serve his Second Amended 1 could not serve Defendants, and remains unable to serve Defendants, due to Covid-19. ECF No. 24. 2 The Court finds this explanation is sufficient to establish good cause under Rule 4(m) for an 3 extension of time to serve. The Court provides Plaintiff one last opportunity during which time he 4 must serve his Second Amended Complaint. 5 III. ORDER 6 Accordingly, 7 IT IS HEREBY ORDERED that Plaintiff’s Second Amended Complaint may proceed as 8 liberally construed. 9 IT IS FURTHER ORDERED that Plaintiff’s Emergency Motion to Extend Time or Provide 10 Alternative Means for Service of Process Due to Covid-19 (ECF No. 24) is GRANTED; provided, 11 however, Plaintiff must serve his Second Amended Complaint within 30 days from the date of 12 this Order. Plaintiff is referred to Fed. R. Civ. P. (j)(2)(B) and Nev. R. Civ. P. 4.2(d) regarding 13 service of process on the State of Nevada. Failure to comply with this Order will result in a 14 recommendation to dismiss Plaintiff’s Second Amended Complaint with prejudice. 15 Dated this 8th day of September, 2020. 16
17 ELAYNA J. YOUCHAH 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27