1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CRISTINE SALKIN-WEST, Case No.: 3:25-cv-00286-ART-CSD
4 Plaintiff Order
5 v. Re: ECF Nos. 2, 4
6 Q&D CONSTRUCTION, INC.,
7 Defendants
8 9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 2) and pro 10 se complaint (ECF No. 2-1). She subsequently filed an amended complaint. (ECF No. 4.) 11 I. IFP APPLICATION 12 A person may be granted permission to proceed IFP if the person “submits an affidavit 13 that includes a statement of all assets such [person] possesses [and] that the person is unable to 14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 15 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 16 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 17 all actions filed IFP, not just prisoner actions). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 23 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 3 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 4 therefore, the application is granted.
5 II. SCREENING 6 A. Standard 7 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 8 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 9 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 10 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 11 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 12 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 13 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 14 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668
15 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 16 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 18 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 19 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 20 The court must accept as true the allegations, construe the pleadings in the light most 21 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 22 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 23 1 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 2 (1980) (internal quotation marks and citation omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the
5 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 6 must contain something more … than … a statement of facts that merely creates a suspicion [of] 7 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 8 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 9 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 A dismissal should not be without leave to amend unless it is clear from the face of the 11 complaint that the action is frivolous and could not be amended to state a federal claim, or the 12 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 13 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 14 B. Plaintiff’s Amended Complaint
15 Plaintiff sues Q&D Construction (Q&D) for violation of Title VII and the Equal Pay Act 16 as well as for retaliation in violation of Title VII. She alleges that she was employed as a truck 17 driver by Q&D, and male coworkers with no experience and fewer qualifications were paid more 18 than her and promoted when she was not. Plaintiff reported the inequality, and she was 19 reassigned to lower paying jobs, had her assigned truck removed, and was given inferior 20 equipment. In addition, after she was injured on the job she was terminated without being offered 21 light duty or any other return to work opportunities. 22 23 1 Liberally construing Plaintiff’s pro se complaint, the court finds Plaintiff may proceed 2 with her claims for gender discrimination under Title VII, 42 U.S.C. § 2000e, et seq., retaliation 3 under Title VII, as well as violation of the Equal Pay Act, 29 U.S.C. § 206(d). 4 III. CONCLUSION
5 (1) Plaintiff’s IFP application (ECF No. 2) is GRANTED. 6 (2) This action shall PROCEED with the Amended Complaint (ECF No. 4) and claims 7 for violation of Title VII, retaliation under Title VII, and violation of the Equal Pay Act against 8 Q&D. 9 (3) The Clerk of Court shall ISSUE a summons for Q&D, and deliver the same, to the 10 U.S. Marshal for service. The Clerk also shall also SEND sufficient copies of the amended 11 complaint and this Order to the U.S. Marshal for service on Q&D. The Clerk shall SEND to 12 Plaintiff a USM-285 form. Plaintiff has 21 days to furnish to the U.S. Marshal the required 13 USM-285 form with relevant information for Q&D on each form at 400 S. Virginia Street, 2nd 14 floor, Reno, Nevada 89501. Within 20 days after receiving from the U.S. Marshal a copy of the
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CRISTINE SALKIN-WEST, Case No.: 3:25-cv-00286-ART-CSD
4 Plaintiff Order
5 v. Re: ECF Nos. 2, 4
6 Q&D CONSTRUCTION, INC.,
7 Defendants
8 9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 2) and pro 10 se complaint (ECF No. 2-1). She subsequently filed an amended complaint. (ECF No. 4.) 11 I. IFP APPLICATION 12 A person may be granted permission to proceed IFP if the person “submits an affidavit 13 that includes a statement of all assets such [person] possesses [and] that the person is unable to 14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 15 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 16 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 17 all actions filed IFP, not just prisoner actions). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 23 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 3 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 4 therefore, the application is granted.
5 II. SCREENING 6 A. Standard 7 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 8 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 9 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 10 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 11 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 12 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 13 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 14 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668
15 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 16 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 18 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 19 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 20 The court must accept as true the allegations, construe the pleadings in the light most 21 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 22 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 23 1 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 2 (1980) (internal quotation marks and citation omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the
5 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 6 must contain something more … than … a statement of facts that merely creates a suspicion [of] 7 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 8 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 9 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 A dismissal should not be without leave to amend unless it is clear from the face of the 11 complaint that the action is frivolous and could not be amended to state a federal claim, or the 12 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 13 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 14 B. Plaintiff’s Amended Complaint
15 Plaintiff sues Q&D Construction (Q&D) for violation of Title VII and the Equal Pay Act 16 as well as for retaliation in violation of Title VII. She alleges that she was employed as a truck 17 driver by Q&D, and male coworkers with no experience and fewer qualifications were paid more 18 than her and promoted when she was not. Plaintiff reported the inequality, and she was 19 reassigned to lower paying jobs, had her assigned truck removed, and was given inferior 20 equipment. In addition, after she was injured on the job she was terminated without being offered 21 light duty or any other return to work opportunities. 22 23 1 Liberally construing Plaintiff’s pro se complaint, the court finds Plaintiff may proceed 2 with her claims for gender discrimination under Title VII, 42 U.S.C. § 2000e, et seq., retaliation 3 under Title VII, as well as violation of the Equal Pay Act, 29 U.S.C. § 206(d). 4 III. CONCLUSION
5 (1) Plaintiff’s IFP application (ECF No. 2) is GRANTED. 6 (2) This action shall PROCEED with the Amended Complaint (ECF No. 4) and claims 7 for violation of Title VII, retaliation under Title VII, and violation of the Equal Pay Act against 8 Q&D. 9 (3) The Clerk of Court shall ISSUE a summons for Q&D, and deliver the same, to the 10 U.S. Marshal for service. The Clerk also shall also SEND sufficient copies of the amended 11 complaint and this Order to the U.S. Marshal for service on Q&D. The Clerk shall SEND to 12 Plaintiff a USM-285 form. Plaintiff has 21 days to furnish to the U.S. Marshal the required 13 USM-285 form with relevant information for Q&D on each form at 400 S. Virginia Street, 2nd 14 floor, Reno, Nevada 89501. Within 20 days after receiving from the U.S. Marshal a copy of the
15 USM-285 form showing whether service has been accomplished, if the defendant was not 16 served, and if Plaintiff wants service to be attempted again, he must file a motion with the court 17 providing a more detailed name and/or address for service, or indicating that some other method 18 of service should be attempted. 19 (4) Plaintiff is reminded that under Federal Rule of Civil Procedure 4(m), service must 20 be completed within 90 days of the date of this Order. If Plaintiff requires additional time to 21 meet any of the deadlines set by the court, he must file a motion for extension of time under 22 Local Rule 1A 6-1 before the expiration of the deadline, and the motion must be supported by a 23 1} showing of good cause. A motion filed after a deadline set by the court or applicable rules will be denied absent a showing of excusable neglect. 3 (5) Plaintiff shall serve upon defendant(s) or, if an appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted for consideration by the court. If Plaintiff electronically files a document with the court’s electronic 6|| filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); LR IC 4-1(b); LR 7|| 5-1. If Plaintiff mails the document to the court, Plaintiff shall include with the original 8]| document submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the defendants or counsel for the defendants. If counsel has entered a 10|| notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. The court may disregard any 12|| document received by a district judge or magistrate judge which has not been filed with the 13]| Clerk, and any document received by a district judge, magistrate judge, or the Clerk which fails to include a certificate showing proper service when required. 15) IT IS SO ORDERED. 16 17|| Dated: July 29, 2025 CS oy Craig S. Denney 19 United States Magistrate Judge 20 21 22 23