1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TRACY VANIS, Case No.: 20cv1047-JAH (BLM)

11 Plaintiff, ORDER DISMISSING THE FIRST 12 v. AMENDED COMPLAINT WITH PREJUDICE 13 UNITED STATES TRANSPORTATION SECURITY ADMINISTRATION 14 AGENCY; KIRSTJEN NIELSEN, 15 Secretary of the United States Department of Homeland Security, 16 Defendants. 17

18 On June 8, 2020, Plaintiff Tracy Vanis, proceeding pro se (“Plaintiff”), filed a 19 Complaint against the United States Transportation Security Administration Agency and 20 Kirstjen Nielsen, the Secretary of the United States of America Department of Homeland 21 Security (“Defendants”), alleging unlawful discrimination under Title VII of the Civil 22 Rights Act of 1964 (hereinafter, “Title VII”). Plaintiff did not prepay the civil filing fees 23 required by

(a) at the time of filing. Instead, she filed a motion for leave 24 to proceed in forma pauperis (“IFP”), pursuant to

(a). Doc. No. 2. 25 On October 15, 2020, the Court granted Plaintiff’s leave to proceed IFP, pursuant to 26

(a) and dismissed Plaintiff’s Complaint without prejudice and with leave 27 to amend. See Doc. No. 3. Plaintiff’s Complaint stated a claim upon which relief could be 28 1 granted but failed to show whether Plaintiff had exhausted her administrative remedies 2 pursuant to F.R.C.P. 12(h)(3)4.

On November 27, 2020, Plaintiff filed a First Amended 3 Complaint (“FAC”). See Doc. No. 4. After careful review of Plaintiff’s FAC, and for the 4 reasons set forth below, the Court DISMISSES Plaintiff’s FAC, with prejudice and 5 without leave to amend. 6 I. Sua Sponte Screening Pursuant to

(e)(2)(B) 7 A. Standard of Review 8 When a plaintiff seeks leave to proceed IFP pursuant to

(a), the 9 Complaint is subject to sua sponte review, and mandatory dismissal, if it is “frivolous, 10 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 11 relief from a defendant immune from such relief.” See

(e)(2)(B); 12 Coleman v. Tollefson,

(2015) (pursuant to

(e)(2) 13 “the court shall dismiss the case at any time if the court determines that... (B) the action or 14 appeal... (ii) fails to state a claim on which relief may be granted.”); Lopez v. Smith, 203

(9th Cir. 2000) (en banc) (“section 1915(e) not only permits, but requires, 16 a district court to dismiss an in forma pauperis complaint that fails to state a claim.”). “The 17 standard for determining whether a plaintiff has failed to state a claim upon which relief 18 can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 19 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

(9th 20 Cir. 2012). 21 Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block,

(9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint 23 lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,

, 24 534 (9th Cir. 1984); see Neitzke v. Williams,

(1989) (“Rule 12(b)(6) 25 authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). 26 Alternatively, a complaint may be dismissed where it presents a cognizable legal theory 27 yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, 28 Inc.,

(9th Cir. 1984). While a plaintiff need not give “detailed factual 1 allegations,” he must plead sufficient facts that, if true, “raise a right to relief above the 2 speculative level.” Bell Atlantic Corp. v. Twombly,

(2007). If a court 3 determines that a complaint fails to state a claim, the court should grant leave to amend 4 unless it determines that the pleading could not possibly be cured by the allegation of other 5 facts. See Doe v. United States,

(9th Cir. 1995). 6 In its sua sponte screening of Plaintiff’s original Complaint, this Court found that 7 Plaintiff sufficiently pled a cognizable theory of racial, sexual, and national origin 8 discrimination under Title VII. Doc. No. 3, pg. 6. 9 B. Sua Sponte Screening of Subject Matter Jurisdiction Pursuant to F.R.C.P. 10 12(h)(3)4 11 The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. 12 New York,

(9th Cir. 1986). As such, it cannot reach the merits of any 13 dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a 14 Better Environ.,

(1998). “Jurisdiction is power to declare the law, 15 and when it ceases to exist, the only function remaining to the court is that of announcing 16 the fact and dismissing the cause.”

(quoting Ex parte McCardle,

, 17 614 (1868)). Federal Rule of Civil Procedure 12(h)(3)4 provides that a court may raise the 18 question of subject matter jurisdiction, sua sponte, at any time during the pendency of the 19 action, even on appeal. Snell v. Cleveland, Inc.,

(9th Cir. 2002) (citing 20 Summers v. Interstate Tractor & Equip. Co.,

, 49–50 (9th Cir. 1972)). Plaintiff, 21 as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction 22 exists. See Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). 23 To establish subject matter jurisdiction over her Title VII claim, Plaintiff is required 24 to exhaust her administrative remedies. B.K.B. v. Maui Police Dep't.,

, 1099 25 (9th Cir. 2002) (citing EEOC v. Farmer Bros. Co.,

(9th Cir. 1994)). Under 26 Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge 27 with the EEOC, or the appropriate state agency, thereby affording the agency an 28 opportunity to investigate the charge.

at 1099 (citing 42 U.S.C. § 2000e–5(b)). If the 1 EEOC dismisses the charge, the EEOC must “notify the person aggrieved” that she can file 2 suit. Id. at 1099 (quoting 42 U.S.C. § 2000e–5(f)(1)). The notice is accomplished through 3 a right-to-sue letter. Once a person receives an EEOC right-to-sue letter, she has ninety 4 days to file suit. Id. at 1099. This ninety-day period is a statute of limitations. Id. at 1099 5 (citing Scholar v. Pacific Bell,

(9th Cir. 1992)). Therefore, if a 6 claimant fails to file the civil action within the ninety-day period, the action is barred.

7 at 1099 (citing Scholar v. Pacific Bell,

(9th Cir. 1992)). 8 On June 8, 2020, Plaintiff filed her original EEOC Complaint as her Complaint with 9 this Court. Doc. No. 1. In Plaintiff’s Complaint, Plaintiff failed to aver she exhausted her 10 administrative remedies by either timely filing a charge of discrimination with the EEOC 11 or obtaining a right to sue letter. It was unclear whether the EEOC fully investigated, 12 resolved, or dismissed the charge made by Plaintiff. Additionally, the EEOC Complaint 13 Plaintiff filed as her Complaint was dated November 2014. Should Plaintiff have received 14 the right to sue letter, she would have had ninety days in which to file an action with the 15 Court. Thus, Plaintiff would be barred from bringing the initial action if she received the 16 right to sue letter more than ninety days prior to filing with the Court. The Court therefore 17 found Plaintiff had not met her burden in Plaintiff’s initial Complaint establishing 18 jurisdiction. Consequently, the Court dismissed Plaintiff’s Complaint without prejudice 19 and with leave to amend to cure the deficiencies in her Complaint to establish the Court’s 20 jurisdiction. 21 Here, Plaintiff filed her FAC on November 27, 2020. Doc. No. 4. In Plaintiff’s 22 FAC, Plaintiff pled a cognizable legal theory under Title VII. Plaintiff also included 23 supplemental exhibits demonstrating the sufficiency of her Title VII claim. However, 24 Plaintiff again failed to aver she exhausted her administrative remedies by either timely 25 filing a charge of discrimination with the EEOC or obtaining a right to sue letter. Without 26 this allegation, the FAC does not establish that the EEOC fully investigated, resolved, or 27 dismissed the charge made by Plaintiff. Thus, the only reasonable inference to be drawn 28 by the Court is that Plaintiff has not exhausted her administrative remedies pursuant to 1 || F.R.C.P. 12(h)(3)4. Without establishing subject matter jurisdiction, the Plaintiff cannot 2 litigate, and this Court cannot otherwise consider the bona fides of Plaintiffs claims. 3 Because Plaintiff's claim lacks the appropriate subject matter jurisdiction necessary to 4 || pursue the instant action, the Court denies Plaintiff leave to amend as futile. See Cahill v. 5 || Liberty Mut. Ins. Co.,

(9th Cir. 1996). 6 || II. Conclusion and Order 7 For the reasons explained above, the Court DISMISSES Plaintiff's FAC with 8 || prejudice. 9 IT IS SO ORDERED. 10 11 |} DATED: March 30, 2021

13 14 JQHN A. HOUSTON JNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28