Spencer v. The City of San Diego

• Court: District Court, S.D. California
• Decided: August 4, 2023
• Docket: 3:23-cv-00771
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN SPENCER, Case No.: 23-cv-771-GPC-BLM

12 Plaintiff, ORDER 13 v. (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA 14 THE CITY OF SAN DIEGO, PAUPERIS; 15 Defendant. [ECF No. 6] (2) SUA SPONTE DISMISSING 16 PLAINTIFF’S COMPLAINT FOR 17 FAILURE TO STATE A CLAIM; [ECF No. 5] 18

19 Plaintiff Melvin Spencer timely filed an amended application to proceed in forma 20 pauperis (“IFP”), and a first amended complaint. ECF Nos. 5, 6. Based on the reasoning 21 below, the Court GRANTS Plaintiff’s amended motion to proceed in forma pauperis, and 22 sua sponte DISMISSES with leave to amend the first amended complaint for failure to state 23 a claim. 24 A. Motion To Proceed In Forma Pauperis 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except on application for writ of habeas corpus, must pay a filing fee of 27 28 1 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 3 section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an 5 affidavit demonstrating their inability to pay the filing fee, and the affidavit must include a 6 complete statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1); Escobedo v. 7 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (demonstrating the statute’s applicability 8 to non-prisoner plaintiffs). “An affidavit in support of an IFP application is sufficient 9 where it alleges that the affiant cannot pay the court costs and still afford the necessities of 10 life.” Escobedo, 787 F.3d at 1234; accord Adkins v. E.I. Dupont de Nemours & Co., 335 11 U.S. 331, 339 (1948). 12 Spencer submitted an amended IFP application. ECF No. 6. Spencer reports having 13 an average gross monthly employment income of $1,300. Id. at 1.2 However, he lists his 14 gross monthly pay as $1,450.3 Id. at 2. Spencer has roughly $25 in his checking account. 15 Id. He has no assets and reports monthly expenses of $950. Id. at 3–5. Spencer’s highest 16 reported gross income exceeds his expenses by about $500. Spencer does not need not “be 17 absolutely destitute to enjoy the benefit of the [IFP] statute.” Adkins, 335 U.S. at 339. 18 Before paying taxes and any unexpected bills, Spencer is on the cusp of being able to afford 19 both the filing fees and the necessities of life. However, he does not appear to be living 20 frivolously; has no reportable assets; and a $402 filing fee would represent a significant 21 portion of his monthly income such that he might not be able to afford the necessities of 22 23 1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial 24 Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). 25 The $52 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 Page numbers are based on the CM/ECF pagination. 26 3 The discrepancy between salary entries could be due a scrivener’s error, reflect a 27 misunderstanding that both questions were asking for gross rather than net pay, reflect a change in monthly salary, or something else. The reason for the difference is immaterial 28 1 life if any unexpected bills were to arise. Accordingly, the Court finds Spencer is entitled 2 to proceed IFP and the Court’s hereby waives the filing fees. Thus, Spencer’s application 3 to proceed in forma pauperis is GRANTED. 4 B. Sua Sponte Dismissal Pursuant To 28 U.S.C. § 1915(e)(2) 5 1. Legal standards 6 A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is 7 subject to mandatory sua sponte review and dismissal by the Court if it is “(i) frivolous, or 8 malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks 9 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 10 § 1915(e)(2)(B); see Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions 11 of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”). 12 Under Federal Rule of Civil Procedure 8(a), “[a] pleading that states a claim for 13 relief must contain . . . a short and plain statement of the claim . . . [and] a demand for the 14 relief sought, which may include relief in the alternative or different types of relief.” A 15 complaint should set forth “who is being sued, for what relief, and on what theory, with 16 enough detail to guide discovery.” See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 17 1996); see also Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000) (“To 18 comply with Rule 8 each plaintiff must plead a short and plain statement of the elements 19 of his or her claim, identifying the transaction or occurrence giving rise to the claim and 20 the elements of the prima facie case . . . .”). To state a claim upon which relief may be 21 granted “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 22 claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Legal conclusions are 24 “not entitled to the assumption of truth.” Id. at 679–80. A claim is facially plausible when 25 the factual allegations permit “the court to draw the reasonable inference that the defendant 26 is liable for the misconduct alleged.” Id. at 678. 27 Courts “liberally construe[]” pro se claims and hold them to “less stringent standards 28 than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) 1 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). “This rule is particularly important 2 in civil rights cases.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). 3 2. Discussion 4 Spencer alleges that he identifies as African American and has been working for 5 both the City Heights Recreation Center (“Center”) and Mid City Gymnasium (“Gym”)4 6 since August 2019. ECF No. 5 at 3. He alleges that the Area Manager and Center Director 7 at the Center are both Mexican persons that “haven’t hired any African Americans . . . since 8 [Spencer] was[] hired.” Id. at 3. He includes “a list of names and races” of people 9 purportedly “hired since 2019.” Id. at 3–9. Of the nine of people on the list, Spencer 10 alleges that only one is African American; the rest are primarily Mexican along with one 11 European American and two biracial individuals.5 Id. at 4–9. Spencer alleges that his 12 coworkers are “habitual slackers” that break the rules; that the onus of the workload 13 “always falls on [him] and that [he is blamed for] anything that is incomplete”; that he 14 completes all his work; that he arrives early and stays late as needed; and that despite 15 applying for various promotions, they have all “been filled by Mexicans.” Id. at 8–10 16 (emphasis removed). 17 Spencer alleges that the people empowered to make hiring and promotion decisions 18 at the Center and the Gym made decisions based on improper factors. For example, he 19 alleges that the Manager displayed nepotism when he helped his god son obtain a 20 promotion at the Center. Id. at 4. Broadly construing the Complaint, the Manager also 21 purportedly displayed a bias in favor of someone that shares his same nationality when he 22 promoted a Mexican employee twice in two years. Id. Spencer alleges that this employee 23 has repeatedly violated her terms of employment. Id. at 4–6. Spencer allegedly reported 24 these violations to the Director, though it is unclear if anything came of his reporting. Id. 25

26 4 The Center and the Gym appear to be distinct entities within the City of San Diego, though 27 their exact relationship is unclear from the Complaint. 5 The Court relies on the terminology Spencer uses in his Complaint and makes no findings 28 1 Spencer alleges that a third employee, who is African American, was “given his position” 2 at the Gym, and then later his promotion at South Crest Park, due to his friendship with the 3 Manager and the Manager’s son. Id. at 6–7. Spencer alleges that this third employee has 4 also repeatedly violated the terms of employment and that Spencer has reported the 5 violations to both the Manager and Director but “nothing changed.” Id. at 7. 6 Spencer’s case caption suggests that his causes of action include racial 7 discrimination, retaliation, favoritism, slander, nepotism, and bullying. Id. at 1. However, 8 the Complaint appears to invoke causes of action only for racial discrimination, favoritism, 9 and nepotism. See id. at 3–10 (making no mention of retaliation, slander, or bullying). 10 In order to bring a cause of action under the Fair Employment and Housing Act 11 (“FEHA”), Cal. Gov't Code §§ 12900–53, or Title VII of the Civil Rights Act of 1964, 42 12 U.S.C. §§ 2000e through 2000e-17, a plaintiff must first exhaust their administrative 13 remedies. See Romano v. Rockwell Int’l, Inc., 14 Cal. 4th 479, 492 (1996) (“Under FEHA, 14 the employee must exhaust the administrative remedy provided by the statute by filing a 15 complaint with the Department of Fair Employment and Housing (Department) and must 16 obtain from the Department a notice of right to sue in order to be entitled to file a civil 17 action in court based on violations of the FEHA.”); Scott v. Gino Morena Enters., LLC, 18 888 F.3d 1101, 1104 (9th Cir. 2018) (requiring plaintiff to exhaust administrative remedies 19 prior to bringing a lawsuit “by filing a charge with the Equal Opportunity Commission 20 (‘EEOC’) or a qualifying state agency and receiving a right-to-sue notice”). However, 21 non-statutory claims do not require exhaustion. E.g. Rojo v. Kliger, 52 Cal. 3d 65, 88 22 (1990). For example, “a claim for wrongful termination in violation of public policy” is 23 exempt from FEHA’s administrative requirements. Wade v. Ports Am. Mgmt. Corp., 218 24 Cal. App. 4th 648, 655-56 (2013). Spencer does not specify in his amended complaint 25 whether his claims arise under statute, common law, or something else entirely. To the 26 extent his claims arise under federal or state employment discrimination statutes, they fail 27 because he does not allege that he has obtained a right-to-sue notice from the appropriate 28 state or federal agency, or that he has otherwise exhausted his administrative remedies. 1 The amended complaint also does not make any request for any form of relief. 2 Compare ECF No. 1 at 3 (instructing plaintiff to “[s]tate exactly what [the plaintiff] want[s] 3 the court to do”), and ECF No. 4 at 4, 6 (identifying deficiencies with requested relief in 4 original complaint and instructing that any “amended complaint must be complete by itself 5 without reference to any previous pleading”), with ECF No. 5 (page for requested relief 6 omitted and statement of facts do not include request for relief). Absent any requested 7 relief, the amended complaint fails to state a claim upon which the Court may grant relief 8 and therefore must be dismissed. 9 If Spencer intends to proceed in this matter, he should submit an amended complaint 10 within 30 days of the date of this Order. The amended complaint should clearly explain 11 the facts giving rise to his alleged injuries. The requested relief should be of the sort that 12 offers redress for the alleged injuries. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560– 13 61 (1992) (describing injury, causation, and redressability requirements for constitutional 14 standing). Finally, if Spencer is seeking to recover under a statute that requires exhaustion 15 of administrative remedies, such as California’s FEHA or Title VII of the Civil Rights Act 16 of 1964, the amended complaint should allege that he has exhausted such remedies and has 17 obtained a right-to-sue notice from the appropriate agency. 18 C. Leave To Amend 19 District courts “should not dismiss a pro se complaint without leave to amend unless 20 ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 21 amendment.’ ” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. 22 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988)). 23 The Court GRANTS Spencer LEAVE TO AMEND his complaint. If Spencer would 24 like to proceed in this matter, he must file an amended complaint within 30 days of the 25 date of this Order. The amended complaint must be complete by itself without reference 26 to any previous pleading. See Civ. L. Rule 15.1(a). The amended complaint should clearly 27 state the causes of action upon which Spencer’s claims are based—such as any common 28 law, statutory, or constitutional violation. 1 If Spencer fails to timely amend, the Court will enter a final order dismissing the 2 entire action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does 3 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 4 || dismissal of the complaint into dismissal of the entire action.”). 5 ||D. Conclusion 6 For the reasons explained above, the Court GRANTS Spencer’s request to proceed 7 ||in forma pauperis and sua sponte DISMISSES his complaint for failure to state a claim 8 |}upon which relief may be granted. Any amended filings must be made within 30 days of 9 date of this Order or else the case will be closed without further opportunity to amend. 10 IT IS SO ORDERED. 11 ||Dated: August 4, 2023 2 12 Hon. athe Coke 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28