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Bashale v. Thibodeau

United States District Court, D. Idaho

January 29, 2018



          B. Lynn Winmill Chief U.S. District Court Judge


         On September 13, 2017, the Clerk of the Court conditionally filed Plaintiff Pierre Tshishimbi Bashale's Complaint (Dkt. 2) subject to later review by the Court to determine whether he is entitled to proceed in forma pauperis under 28 U.S.C. § 1915. The Case was assigned to Magistrate Judge Dale. Judge Dale conducted an initial review of the Complaint under 28 U.S.C. § 1915(e)(2). (Dkt. 5.) Judge Dale found that the Complaint failed to state a claim for which relief can be granted and failed to adequately establish the Court's subject matter jurisdiction over the matter. However, Judge Dale granted Plaintiff leave to file an amended complaint on or before November 23, 2017 to address the deficiencies. Plaintiff was also directed to file a motion to review the amended complaint. Judge Dale explained that without amendment, Plaintiff's Complaint was likely subject to summary dismissal under 28 U.S.C. § 1915(e)(2). Plaintiff failed to amend his Complaint and cure the deficiencies. The deadline for the amendment has passed.

         Judge Dale further noted that Plaintiff's failure to amend the Complaint warrants dismissal of this action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). But because all parties have not consented to a Magistrate Judge, Judge Dale directed the Clerk of Court to reassign the matter to a district judge for de novo review of the Initial Review Order (Dkt. 5), and for consideration of an entry of judgment dismissing Plaintiff's Complaint for failure to comply with the Initial Review Order. The Clerk reassigned the case to the undersigned District Judge.


         The standard of review is correctly set forth in Judge Dale's initial review order, but the Court will repeat it here. Once a complaint has been conditionally filed pursuant to 28 U.S.C. § 1915, the Court may conduct an initial review of the complaint. See 28 U.S.C. § 1915(e)(2). The Court must dismiss a complaint or any portion thereof if it is (1) frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii). When a plaintiff is proceeding pro se, the complaint must be liberally construed, and the plaintiff must be given the benefit of any doubt. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2012).

         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations, ” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.' ” Id. at 557.

         The Supreme Court identified two “working principles” that underlie Twombly in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court need not accept as true, legal conclusions that are couched as factual allegations. Id. Rule 8 does not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Second, to survive a motion to dismiss, a complaint must state a plausible claim for relief. Id. at 679. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir. 1997) (stating that “[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other . . . evidence on summary judgment establishes the identical facts”).

         A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (issued 2 months after Iqbal). The Ninth Circuit has held that “in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to support the claims.” Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)(citations omitted).

         Under Rule 12(b)(6), the Court may consider matters that are subject to judicial notice. Mullis v. United States Bank, 828 F.2d 1385, 1388 (9th Cir. 1987). The Court may take judicial notice “of the records of state agencies and other undisputed matters of public record” without transforming the motions to dismiss into motions for summary judgment. Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866, n.1 (9th Cir. 2004). The Court may also examine documents referred to in the complaint, although not attached thereto, without transforming the motion to dismiss into a motion for summary judgment. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).


         Upon de novo review of the Complaint, the undersigned District Judge agrees with Judge Dale's assessment that the case should be dismissed. Plaintiff fails to allege sufficient facts or a sufficient legal basis to proceed with his Complaint. Plaintiff has not filed charges with the Equal Employment Opportunity Commission (“EEOC”) or the Idaho Human Rights Commission (“IHRC”). To proceed with a claim of employment-related discrimination under Title VII of the Civil Rights Act, a plaintiff must first file an administrative complaint through either the EEOC or the IHRC, exhaust administrative remedies, and obtain a Notice of Right-to-Sue. This requirement also includes employment-related claims made pursuant to the ADA. Only after a Notice of Right-to-Sue has been obtained, may a suit be filed. This is sufficient grounds to dismiss the Complaint.

         Moreover, as explained by Judge Dale in her order, the facts supplied by the Plaintiff in his Complaint are too limited. The Plaintiff only alleges that his employment was terminated due to a mental disability and his national origin as a person from Africa. This does not sufficiently set forth the “who, what, why, where, and when” necessary to establish a claim for relief under Title VII of the Civil Rights Act or the ADA. To establish a prima facie case of employment discrimination under Title VII, a plaintiff must show (1) he is a member of a protected class; (2) he was qualified for the position and was performing his work satisfactorily; (3) he experienced an adverse employment action; and (4) that similarly situated individuals outside the protected class were treated more favorably, or other circumstances surrounding the adverse employment action would give rise to an inference of ...

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