6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8
9 FERNANDO HARO, III, Case No.: 2:20-cv-02113-APG-DJA 10 Plaintiff, ORDER 11 v.
12 THOMAS KELLER RESTAURANT 13 GROUP, et al., 14 Defendant(s). 15 Pursuant to 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 16 authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF No. 1). Plaintiff also 17 submitted a complaint. (ECF No. 1-1). 18 I. In Forma Pauperis Application 19 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown an 20 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in 21 forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is further 22 INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s 23 complaint. 24 II. Screening the Complaint 25 Upon granting an application to proceed in forma pauperis, courts additionally screen the 26 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 27 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 28 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 2 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995). 5 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 6 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 7 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 8 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 9 showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 10 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it 11 demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 12 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 13 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 14 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 15 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 16 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 17 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 18 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 19 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 20 construction of pro se pleadings is required after Twombly and Iqbal). 21 Federal courts are courts of limited jurisdiction and possess only that power authorized by 22 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28 U.S.C. 23 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 24 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 25 federal law creates the cause of action or where the vindication of a right under state law 26 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 27 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 28 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal 1 question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. 2 v.Williams, 482 U.S. 386, 392 (1987). 3 In this case, Plaintiff attempts to bring a claim under Title VII of the Civil Rights Act of 4 1964 and Nevada law tort claims. See Compl. (ECF No. 1-1). A claim brought under Title VII 5 invokes the Court’s federal jurisdiction while the state law claims would fall under supplemental 6 jurisdiction. 7 Having determined that federal-question jurisdiction exists under the well-pleaded 8 complaint rule, the Court now turns to the sufficiency of the factual allegations to state a claim. 9 Plaintiff filed this action within 95 days of the EEOC right to sue notice and thus, the Court will 10 find it to be timely. Plaintiff alleges that he was employed by Defendants back in 2014-2016, filed 11 a prior EEOC charge along with workers compensation claims, and was retaliated against by being 12 terminated. The Court finds that the factual allegations are sufficient at this point to survive 13 screening on his retaliation, defamation, intentional interference with prospective economic 14 advantage, intentional infliction of emotional distress, negligent infliction of emotional distress, 15 and negligent hiring, retention, or supervision claims. 16 III. Conclusion 17 Accordingly, IT IS ORDERED that: 18 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 1) is GRANTED. Plaintiff 19 shall not be required to pre-pay the filing fee of four hundred two dollars ($400.00). 20 Plaintiff is permitted to maintain this action to conclusion without the necessity of 21 prepayment of any additional fees or costs or the giving of a security therefor. This 22 order granting leave to proceed in forma pauperis shall not extend to the issuance 23 and/or service of subpoenas at government expense. 24 2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint (ECF No. 1-1) on 25 the docket. 26 3. The Clerk of the Court shall issue Summons to Defendants and deliver the same to the 27 U.S. Marshal for service. The Clerk of the Court shall also deliver a copy of the 28 complaint (ECF No. 1-1) to the U.S. Marshal for service. 1 4. Plaintiff shall have thirty days in which to furnish the U.S. Marshal with the required 2 Form USM-285.1 Within twenty days after receiving from the U.S. Marshal a copy of 3 the Form USM-285, showing whether service has been accomplished, Plaintiff must 4 file a notice with the court identifying whether defendant was served.
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6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8
9 FERNANDO HARO, III, Case No.: 2:20-cv-02113-APG-DJA 10 Plaintiff, ORDER 11 v.
12 THOMAS KELLER RESTAURANT 13 GROUP, et al., 14 Defendant(s). 15 Pursuant to 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 16 authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. (ECF No. 1). Plaintiff also 17 submitted a complaint. (ECF No. 1-1). 18 I. In Forma Pauperis Application 19 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown an 20 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in 21 forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is further 22 INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s 23 complaint. 24 II. Screening the Complaint 25 Upon granting an application to proceed in forma pauperis, courts additionally screen the 26 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 27 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 28 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 2 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 3 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995). 5 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 6 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 7 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 8 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 9 showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 10 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it 11 demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 12 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 13 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 14 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 15 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 16 not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 17 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 18 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 19 by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 20 construction of pro se pleadings is required after Twombly and Iqbal). 21 Federal courts are courts of limited jurisdiction and possess only that power authorized by 22 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Pursuant to 28 U.S.C. 23 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 24 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 25 federal law creates the cause of action or where the vindication of a right under state law 26 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 27 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 28 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal 1 question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. 2 v.Williams, 482 U.S. 386, 392 (1987). 3 In this case, Plaintiff attempts to bring a claim under Title VII of the Civil Rights Act of 4 1964 and Nevada law tort claims. See Compl. (ECF No. 1-1). A claim brought under Title VII 5 invokes the Court’s federal jurisdiction while the state law claims would fall under supplemental 6 jurisdiction. 7 Having determined that federal-question jurisdiction exists under the well-pleaded 8 complaint rule, the Court now turns to the sufficiency of the factual allegations to state a claim. 9 Plaintiff filed this action within 95 days of the EEOC right to sue notice and thus, the Court will 10 find it to be timely. Plaintiff alleges that he was employed by Defendants back in 2014-2016, filed 11 a prior EEOC charge along with workers compensation claims, and was retaliated against by being 12 terminated. The Court finds that the factual allegations are sufficient at this point to survive 13 screening on his retaliation, defamation, intentional interference with prospective economic 14 advantage, intentional infliction of emotional distress, negligent infliction of emotional distress, 15 and negligent hiring, retention, or supervision claims. 16 III. Conclusion 17 Accordingly, IT IS ORDERED that: 18 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 1) is GRANTED. Plaintiff 19 shall not be required to pre-pay the filing fee of four hundred two dollars ($400.00). 20 Plaintiff is permitted to maintain this action to conclusion without the necessity of 21 prepayment of any additional fees or costs or the giving of a security therefor. This 22 order granting leave to proceed in forma pauperis shall not extend to the issuance 23 and/or service of subpoenas at government expense. 24 2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint (ECF No. 1-1) on 25 the docket. 26 3. The Clerk of the Court shall issue Summons to Defendants and deliver the same to the 27 U.S. Marshal for service. The Clerk of the Court shall also deliver a copy of the 28 complaint (ECF No. 1-1) to the U.S. Marshal for service. 1 4. Plaintiff shall have thirty days in which to furnish the U.S. Marshal with the required 2 Form USM-285.1 Within twenty days after receiving from the U.S. Marshal a copy of 3 the Form USM-285, showing whether service has been accomplished, Plaintiff must 4 file a notice with the court identifying whether defendant was served. If Plaintiff 5 wishes to have service again attempted on an unserved defendant, a motion must be 6 filed with the Court identifying the unserved defendant and specifying a more detailed 7 name and/or address for said defendant, or whether some other manner of service 8 should be attempted. 9 5. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be 10 accomplished within 90 days from the date this order is entered. 11 6. From this point forward, Plaintiff shall serve upon Defendants, or, if appearance has 12 been entered by counsel, upon the attorney(s), a copy of every pleading, motion, or 13 other document submitted for consideration by the court. Plaintiff shall include with 14 the original papers submitted for filing a certificate stating the date that a true and 15 correct copy of the document was mailed to Defendants or counsel for Defendants. The 16 Court may disregard any paper received by a District Judge or Magistrate Judge that 17 has not been filed with the Clerk, and any paper received by a District Judge, Magistrate 18 Judge, or the Clerk that fails to include a certificate of service. 19 20 Dated: December 16, 2020 ) ,
DANIEL J. ALBREGTS 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 The USM-285 form is available at www.usmarshals.gov/process/usm285.pdf.