1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 THEODORE HOOKS, Case No. 2:25-cv-01948-JAD-EJY
5 Plaintiff, ORDER 6 v.
7 TREASURE ISLAND, LLC,
8 Defendants.
9 10 Plaintiff is appearing in this action pro se and has requested authority under 28 U.S.C. § 1915 11 to proceed in forma pauperis. ECF No. 1. Plaintiff also submitted a Complaint attached to his in 12 forma pauperis application. ECF No. 1-1 13 I. In Forma Pauperis Application 14 Plaintiff’s application to proceed in forma pauperis is complete and demonstrates an inability 15 to prepay filing fees and costs or give security for the same. Thus, Plaintiff is granted in forma 16 pauperis status under 28 U.S.C. § 1915(a). 17 II. Screening the Complaint 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted 21 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 22 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 23 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 24 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them 27 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 1 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 2 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 9 complaint’s deficiencies cannot be cured through amendment, a pro se plaintiff should be given 10 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 11 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 III. Plaintiff’s Complaint 13 In his Complaint, Plaintiff alleges race discrimination, retaliation, and wrongful termination 14 in violation of public policy. Plaintiff’s public policy claim arises from the exercise of rights under 15 Nevada’s worker’s compensation scheme. With respect to his Title VII claims, Plaintiff pleads facts 16 demonstrating exhaustion of administrative remedies and timely filing of the instant action. 17 a. Wrongful Termination. 18 Nevada recognizes a claim for wrongful termination in violation of public policy when an 19 individual alleges, and ultimately proves, termination in retaliation for exercising worker’s 20 compensation rights. Hansen v. Harrah’s, 675 P.2d 394, 397 (Nev. 1984); see also Dillard Dept. 21 Stores, Inc. v. Beckwith, 989 P.2d 882, 885-86 (Nev. 1999). “To prevail, the employee must be able 22 to establish that his dismissal was based upon the employee[] … engaging in conduct which public 23 policy favors.” Bigelow v. Bullard, 901 P.2d 630, 632 (Nev. 1995). “[R]ecovery for retaliatory 24 discharge under state law may not be had upon a ‘mixed motives’ theory; thus, a plaintiff must 25 demonstrate that his protected conduct was the proximate cause of his discharge.” Allum v. Valley 26 Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998) (emphasis in original). Here, Plaintiff alleges he 27 engaged in activity related to initiating a worker’s compensation claim (filing C1 injury form) and 1 sixteen days later he was terminated. Plaintiff also offers that he has been employed for fourteen 2 years, with an unblemished record, prior to the event. While these allegations are slim, a liberal 3 reading of Plaintiff’s Complaint, which is applied to this pro se litigant’s Complaint, militates in 4 favor of allowing this claim to proceed. 5 b. Plaintiff’s Race Discrimination Claim. 6 To state a prima facie case of race discrimination in violation of Title VII, Plaintiff must 7 allege: (a) he belongs to a protected class; (b) he was qualified for the job for which he applied; and 8 (c) he was subjected to an adverse employment action. See Shepard v. Marathon Staffing, Inc., 2014 9 U.S. Dist. Lexis 76097, at *5 (D. Nev. June 2, 2014) (citing Moran v. Selig, 447 F.3d 748, 753 (9th 10 Cir. 2006)). While more favorable treatment of those outside the protected class is one way to state 11 a prima facie case, Plaintiff may alternatively offer evidence that gives rise to an inference of 12 unlawful discrimination. Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004) (To establish a 13 prima facie case of discrimination under Title VII, the plaintiff must show: “(1) he is a member of a 14 protected class; (2) he was qualified for [his] position; (3) he experienced an adverse employment 15 action; and (4) similarly situated individuals outside his protected class were treated more favorably, 16 or other circumstances surrounding the adverse employment action give rise to an inference of 17 discrimination.”). Here, Plaintiff alleges facts demonstrating he is a member of protected class; he 18 had a 14 year “unblemished” employment record at the time of termination; he was terminated for 19 reasons contrary to what his supervisor found in her investigation; and the totality of the 20 circumstances surrounding his termination give rise to an inference of unlawful discrimination. 21 These facts, albeit not robust, are sufficient to state a prima facie race discrimination claim. Thus, 22 Plaintiff’s race discrimination claim may proceed. 23 c. Plaintiff’s Retaliation Claim. 24 To state a retaliation claim, Plaintiff must allege: (1) he engaged in activity protected under 25 Title VII; (2) the employer subjected Plaintiff to an adverse employment action; and (3) there is a 26 causal link between the protected activity and the employer’s action. Cohen v. Fred Meyer, Inc., 27 686 F.2d 793, 796 (9th Cir. 1982).
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 THEODORE HOOKS, Case No. 2:25-cv-01948-JAD-EJY
5 Plaintiff, ORDER 6 v.
7 TREASURE ISLAND, LLC,
8 Defendants.
9 10 Plaintiff is appearing in this action pro se and has requested authority under 28 U.S.C. § 1915 11 to proceed in forma pauperis. ECF No. 1. Plaintiff also submitted a Complaint attached to his in 12 forma pauperis application. ECF No. 1-1 13 I. In Forma Pauperis Application 14 Plaintiff’s application to proceed in forma pauperis is complete and demonstrates an inability 15 to prepay filing fees and costs or give security for the same. Thus, Plaintiff is granted in forma 16 pauperis status under 28 U.S.C. § 1915(a). 17 II. Screening the Complaint 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted 21 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 22 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 23 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 24 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them 27 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 1 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 2 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 9 complaint’s deficiencies cannot be cured through amendment, a pro se plaintiff should be given 10 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 11 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 III. Plaintiff’s Complaint 13 In his Complaint, Plaintiff alleges race discrimination, retaliation, and wrongful termination 14 in violation of public policy. Plaintiff’s public policy claim arises from the exercise of rights under 15 Nevada’s worker’s compensation scheme. With respect to his Title VII claims, Plaintiff pleads facts 16 demonstrating exhaustion of administrative remedies and timely filing of the instant action. 17 a. Wrongful Termination. 18 Nevada recognizes a claim for wrongful termination in violation of public policy when an 19 individual alleges, and ultimately proves, termination in retaliation for exercising worker’s 20 compensation rights. Hansen v. Harrah’s, 675 P.2d 394, 397 (Nev. 1984); see also Dillard Dept. 21 Stores, Inc. v. Beckwith, 989 P.2d 882, 885-86 (Nev. 1999). “To prevail, the employee must be able 22 to establish that his dismissal was based upon the employee[] … engaging in conduct which public 23 policy favors.” Bigelow v. Bullard, 901 P.2d 630, 632 (Nev. 1995). “[R]ecovery for retaliatory 24 discharge under state law may not be had upon a ‘mixed motives’ theory; thus, a plaintiff must 25 demonstrate that his protected conduct was the proximate cause of his discharge.” Allum v. Valley 26 Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998) (emphasis in original). Here, Plaintiff alleges he 27 engaged in activity related to initiating a worker’s compensation claim (filing C1 injury form) and 1 sixteen days later he was terminated. Plaintiff also offers that he has been employed for fourteen 2 years, with an unblemished record, prior to the event. While these allegations are slim, a liberal 3 reading of Plaintiff’s Complaint, which is applied to this pro se litigant’s Complaint, militates in 4 favor of allowing this claim to proceed. 5 b. Plaintiff’s Race Discrimination Claim. 6 To state a prima facie case of race discrimination in violation of Title VII, Plaintiff must 7 allege: (a) he belongs to a protected class; (b) he was qualified for the job for which he applied; and 8 (c) he was subjected to an adverse employment action. See Shepard v. Marathon Staffing, Inc., 2014 9 U.S. Dist. Lexis 76097, at *5 (D. Nev. June 2, 2014) (citing Moran v. Selig, 447 F.3d 748, 753 (9th 10 Cir. 2006)). While more favorable treatment of those outside the protected class is one way to state 11 a prima facie case, Plaintiff may alternatively offer evidence that gives rise to an inference of 12 unlawful discrimination. Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004) (To establish a 13 prima facie case of discrimination under Title VII, the plaintiff must show: “(1) he is a member of a 14 protected class; (2) he was qualified for [his] position; (3) he experienced an adverse employment 15 action; and (4) similarly situated individuals outside his protected class were treated more favorably, 16 or other circumstances surrounding the adverse employment action give rise to an inference of 17 discrimination.”). Here, Plaintiff alleges facts demonstrating he is a member of protected class; he 18 had a 14 year “unblemished” employment record at the time of termination; he was terminated for 19 reasons contrary to what his supervisor found in her investigation; and the totality of the 20 circumstances surrounding his termination give rise to an inference of unlawful discrimination. 21 These facts, albeit not robust, are sufficient to state a prima facie race discrimination claim. Thus, 22 Plaintiff’s race discrimination claim may proceed. 23 c. Plaintiff’s Retaliation Claim. 24 To state a retaliation claim, Plaintiff must allege: (1) he engaged in activity protected under 25 Title VII; (2) the employer subjected Plaintiff to an adverse employment action; and (3) there is a 26 causal link between the protected activity and the employer’s action. Cohen v. Fred Meyer, Inc., 27 686 F.2d 793, 796 (9th Cir. 1982). Plaintiff does not state a claim of retaliation under Title VII 1 because there is no protected activity alleged other than filing a worker’s compensation claim. 2 Exercising worker’s compensation rights is not activity protected under Title VII. More specifically, 3 protected activity under Title VII includes (1) opposing employment practices prohibited under Title 4 VII, or (2) filing a charge, testifying, assisting, or participating in any way in an investigation, 5 proceeding or hearing under this statutory scheme. 42 U.S.C. § 2000e–3(a). Title VII identifies 6 protected classes as sex, race, religion, color, and national origin. See 42 U.S.C. § 2000e-2(a). 7 Exercising rights related to worker’s compensation is not a practice protected by Title VII. 8 Therefore, Plaintiff does not allege facts stating a prima facie claim of retaliation under Title VII. 9 Despite the failure, the Court finds it is possible for Plaintiff to amend his Complaint to state a 10 retaliation claim based on protected activity under Title VII. Thus, the Court dismisses Plaintiff’s 11 retaliation claim without prejudice and with leave to amend. 12 IV. ORDER 13 IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 14 Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this action. 15 This Order granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas 16 or other costs associated with discovery. 17 IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s Complaint (ECF 18 No. 1-1). 19 IT IS FURTHER ORDERED that Plaintiff’s race discrimination and wrongful termination 20 claims may proceed against Treasure Island. 21 IT IS FURTHER ORDERED that Plaintiff’s retaliation claim is dismissed without prejudice, 22 but with leave to amend. If Plaintiff so chooses, he may file an amended complaint no later than 23 November 11, 2025. If Plaintiff files an amended complaint he must include all claims on which 24 he seeks to proceed. Failure to include a claim in an amended complaint will mean that claim will 25 no longer go forward as the amended complaint supersedes (replaces) the original Complaint and 26 the original Complaint no longer has any effect. If Plaintiff chooses not to file an amended 27 complaint, the original Complaint will be the operative complaint and will proceed against Treasure 1 Island on Plaintiff’s race discrimination and wrongful termination in violation of public policy 2 arising from the exercise of worker’s compensation rights. 3 IT IS FURTHER ORDERED that the Clerk of Court must issue a summons for Treasure 4 Island, LLC and deliver the same, together with a copy of Plaintiff’s Complaint (ECF No. 1-1), and 5 this Order to the U.S. Marshal Service for service upon the Defendant. 6 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff one USM-285 form, 7 which Plaintiff must complete to the best of his ability and return to the U.S. Marshal Service no 8 later than November 3, 2025, at the following address:
9 Gary G. Schofield U.S. Marshal, District of Nevada 10 Lloyd D. George Federal Courthouse 333 Las Vegas Blvd. S., Suite 2058 11 Las Vegas, Nevada 89101 12 Plaintiff is advised to review the Nevada Secretary of State Business Entity Search website 13 for the identity and address for Treasure Island, LLC’s registered agent upon whom service of his 14 Complaint should be made. Plaintiff’s is advised that failure to return the USM-285 will prevent 15 service on Treasure Island. 16 IT IS FURTHER ORDERED that the U.S. Marshal Service must attempt service on Treasure 17 Island, LLC no later than twenty-one (21) days after it receives the USM-285 form from Plaintiff. 18 Service must be on the registered agent and not on a secretary or other employee of Treasure 19 Island unless that individual states he/she is authorized to accept service. Service must include 20 the summons, Plaintiff’s Complaint, and a copy of this Order. 21 DATED this 21st day of October, 2025. 22
24 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 25 26 27