Morales v. Holiday by Atria Senior Living

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 OSCAR MORALES, Case No. 3:24-CV-00136-MMD-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v.

7 HOLIDAY BY ATRIA SENIOR LIVING,

8 Defendant.

9 10 Before the Court is Plaintiff Oscar Morales’s (“Morales”) third amended complaint 11 (ECF No. 13), which the Court screens pursuant to 28 U.S.C. § 1915A. 12 I. BACKGROUND 13 On March 22, 2024, Morales initiated this action against his former employer, 14 Defendant Holiday by Atria Senior Living (“Defendant”), for alleged employment 15 discrimination. (ECF No. 1-1.) This Court screened the Complaint, (ECF No. 4), and 16 dismissed the complaint without prejudice and with leave to amend to allow Morales to 17 demonstrate he had exhausted administrative remedies prior to bringing his claims to 18 federal court. The Court ordered that Morales should file his amended complaint by no 19 later than May 9, 2024. (Id.) 20 On May 2, 2024, Morales submitted his notice of right to sue letter, satisfying this 21 Court that Morales exhausted his administrative remedies prior to initiating this lawsuit. 22 (ECF No. 6.) However, Morales did not file his amended complaint in compliance with the 23 Court’s screening order. Thus, in light of Morales’s pro se status and for good cause 24 appearing, the Court sua sponte granted Morales an extension of time to file his amended 25

26 1 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate 27 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. 1 complaint. (ECF No. 7.) 2 On June 6, 2024, Morales filed his amended complaint, (ECF No. 8), which the 3 Court screened and dismissed without prejudice and with leave to amend based on 4 Morales’s failure to state a claim upon which relief could be granted. (ECF No. 9.) Morales 5 was put on notice of the deficiencies of his complaint and given the opportunity to amend 6 his complaint. Thus, on July 24, 2024, Morales filed his second amended complaint, (ECF 7 No. 11). Upon screening, the Court again recommended dismissal without prejudice and 8 with leave to amend based on Morales’s failure to state a claim upon which relief could 9 be granted. (ECF No. 12.) On September 18, 2024, Morales filed the instant third 10 amended complaint, which the Court will now screen. (ECF No. 13.) 11 II. SCREENING STANDARD 12 Prior to ordering service on any Defendant, the Court is required to screen an in 13 forma pauperis complaint to determine whether dismissal is appropriate under certain 14 circumstances. See Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (noting the in 15 forma pauperis statute at 28 U.S.C. § 1915(e)(2) requires a district court to dismiss an 16 in forma pauperis complaint for the enumerated reasons). Such screening is required 17 before a litigation proceeding in forma pauperis may proceed to serve a pleading. Glick 18 v. Edwards, 803 F.3d 505, 507 (9th Cir. 2015). 19 “[T]he court shall dismiss the case at any time if the court determines that – (A) 20 the allegations of poverty is untrue; or (B) the action or appeal – (i) is frivolous or 21 malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks 22 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 23 1915(e)(2)(A), (B)(i)-(iii). 24 Dismissal of a complaint for failure to state a claim upon which relief may be 25 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 26 1915(e)(2)(B)(ii) tracks that language. When reviewing the adequacy of a complaint 27 under this statute, the court applies the same standard as is applied under Rule 12(b)(6). 1 determining whether a plaintiff has failed to state a claim upon which relief can be granted 2 under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 3 standard for failure to state a claim.”). Review under Rule 12(b)(6) is essentially a ruling 4 on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 5 2000) (citation omitted). 6 The Court must accept as true the allegations, construe the pleadings in the light 7 most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor. Jenkins v. 8 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints 9 are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes 10 v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations marks and citation omitted). 11 A complaint must contain more than a “formulaic recitation of the elements of a 12 cause of actions,” it must contain factual allegations sufficient to “raise a right to relief 13 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 14 “The pleading must contain something more. . . than. . . a statement of facts that merely 15 creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation 16 marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to 17 relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 18 678 (2009). 19 A dismissal should not be without leave to amend unless it is clear from the face 20 of the complaint the action is frivolous and could not be amended to state a federal claim, 21 or the district court lacks subject matter jurisdiction over the action. See Cato v. United 22 States, 70 F.3d 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th 23 Cir. 1990). 24 III. SCREENING OF THIRD AMENDED COMPLAINT 25 In his third amended complaint, Morales sues his former employer, Defendant for 26 national origin and gender discrimination under Title VII of the Civil Rights Act (“Title VII”). 27 (ECF No. 13.) Morales requests monetary relief. (Id. at 6.) 1 Morales alleges the following: Morales was employed by Defendant as a Chef from 2 January 9, 2023 to June 1, 2023. (Id. at 3.) Morales performed his job satisfactorily until 3 his discharge. (Id.) Morales alleges that he was suspended on May 25, 2023. (Id. at 7.) 4 Morales states that other white employees who were terminated “received papers of 5 discharge with statements supporting the decision to terminate,” but Morales did not 6 receive the same treatment in that the “allegations were never proven, taken as truths.” 7 (Id. at 8.) Morales states that he “feels harassed and retaliated against [and he] feels his 8 national origin (Hispanic), and sex (Male) subjected him to different adverse terms and 9 conditions.” (Id.) Based on these allegations, Morales asserts claims for gender and 10 national origin discrimination under Title VII. 11 Title VII allows an individual to sue an employer for discrimination on the basis of 12 race, color, religion, gender, or national origin. See 42 U.S.C. § 2000e-5. Morales alleges 13 discrimination on the basis of gender, and national origin. To establish a Title VII 14 discrimination claim, a plaintiff must allege: (1) he is a member of a protected class; (2) 15 he was qualified for his position and performing his job satisfactorily; (3) he experienced 16 an adverse employment action; and (4) similarly situated individuals outside of his 17 protected class were “treated more favorably, or other circumstances surrounding the 18 adverse employment action give rise to an inference of discrimination.” Hawn v. Executive 19 Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citation omitted); see also 42 U.S.C. 20 § 2000e-3(e). An adverse employment action is one that materially affects the 21 compensation, terms, conditions, and privileges of employment. Davis v. Team Elec. Co., 22 520 F.3d 1080, 1089 (9th Cir. 2008). 23 Morales’s complaint consists only of conclusory statements that he was “harassed 24 and retaliated against” based on his national origin and sex. However, Morales fails to 25 state either a gender or national origin discrimination claim. Morales does not provide the 26 Court with sufficient factual allegations to show that he experienced an adverse 27 employment action that materially affected the compensation, terms, conditions, and 1 contains merely a “formulaic recitation of the elements of a cause of action,” and does not 2 contain factual allegations sufficient to “raise a right to relief above the speculative level.” 3 Twombly, 550 U.S. at 555. His pleading does not “contain something more. . . than. . . a 4 statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” 5 Id. (citation and quotation marks omitted). 6 That said, it is a “longstanding rule that [l]eave to amend should be granted if it 7 appears at all possible that the plaintiff can correct the defect.” Lopez, 203 F.3d at 1130 8 (quotation omitted). The law is clear that before a district court may dismiss a pro se 9 complaint for failure to state a claim, “a pro se litigant is entitled to notice of the complaint's 10 deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU 11 Nat'l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) (quoting Lucas v. Dep't of Corr., 66 12 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Here, Morales was given notice of the 13 deficiencies of his complaint—specifically his Title VII claim--and opportunity to amend 14 the complaint on several occasions. (See ECF Nos. 4, 9, 10, 12, 14.) Despite these 15 opportunities to correct the deficiencies of his complaint, Morales has again failed to state 16 a colorable claim. Accordingly, the Court recommends that Morales’s third amended 17 complaint be dismissed with prejudice, as amendment would be futile. 18 IV. CONCLUSION 19 For the reasons stated above, the Court recommends that Morales’s third 20 amended complaint, (ECF No. 13), be dismissed with prejudice. 21 The parties are advised: 22 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 23 Practice, the parties may file specific written objections to this Report and 24 Recommendation within fourteen days of receipt. These objections should be entitled 25 “Objections to Magistrate Judge’s Report and Recommendation” and should be 26 accompanied by points and authorities for consideration by the District Court. 27 2. This Report and Recommendation is not an appealable order and any District Court’s judgment. V. RECOMMENDATION 3 IT IS THEREFORE RECOMMENDED that Morales’s third amended complaint, 4| (ECF No. 13), be DISMISSED, with prejudice. 5 IT IS FURTHER RECOMMENDED this case be CLOSED and JUDGMENT be 6 | entered accordingly. DATED: September 24, 2024. 3 » 9 10 UNITED STATES\MAGISTRATE JUDGE

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 er