1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 LAMONT JEFFRIES, Case No. 2:19-cv-01501-KJD-EJY

5 Plaintiff,

6 v. ORDER

7 CONEX WEST,

8 Defendant.

9 10 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. 11 § 1915 to proceed in forma pauperis. ECF No. 1. Plaintiff also attached a Complaint to his in forma 12 pauperis application. ECF No. 1-1. 13 I. In Forma Pauperis Application 14 Plaintiff has submitted the affidavit required by § 1915 showing an inability to prepay fees 15 and costs or give security for them. ECF No. 1. Accordingly, the request to proceed in forma 16 pauperis will be granted pursuant to

(a). The Court will now review Plaintiff’s 17 Complaint. 18 II. Screening the Complaint 19 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 20 under

(e)(2). In screening the complaint, a court must identify cognizable claims 21 and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted 22 or seek monetary relief from a defendant who is immune from such relief.

(e)(2). 23 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 24 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,

, 1112 25 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556

(2009). The court liberally construes pro se complaints and may only dismiss them 1 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 2 would entitle him to relief.” Nordstrom v. Ryan,

(9th Cir. 2014) (quoting Iqbal, 3 556 U.S. at 678). 4 In considering whether the complaint is sufficient to state a claim, all allegations of material 5 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 6 v. Turner Broad. Sys. Inc.,

, 661 (9th Cir. 1998) (citation omitted). Although the 7 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 8 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly,

(2007). 9 A formulaic recitation of the elements of a cause of action is insufficient.

Unless it is clear the 10 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 11 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 12 States,

(9th Cir. 1995). 13 Here, Plaintiff alleges a claim of “disability discrimination” against Defendant. ECF No. 1- 14 1. An individual planning to file a lawsuit under federal law alleging discrimination on the basis of 15 disability must first file a charge with the Equal Employment Opportunity Commission (“EEOC”) 16 within 180 days of the discriminatory act, or within 300 days if there is a State or local law that 17 provides relief for discrimination on the basis of disability. U.S. Equal Employment Opportunity 18 Commission, Filing a Lawsuit, https://eeoc.gov/employees/lawsuit.cfm (last visited Sept. 3, 2019). 19 The EEOC will issue a Notice of Right to Sue at the time it closes its investigation, which gives the 20 aggrieved party permission to file a lawsuit in federal or state court.

Once the party receives a 21 Notice of Right to Sue, it must file a lawsuit within 90 days.

Here, Plaintiff did not attach a right 22 to sue letter from the EEOC. There is no information about when, or if, Plaintiff commenced his 23 efforts to file such a charge. Thus, it may be that Plaintiff’s claim is timely or untimely. 24 In screening Plaintiff’s complaint and construing it liberally, the Court looks in part to the 25 attachments provided. See Swartz v. KPMG LLP,

(9th Cir. 2007) (courts may 26 generally consider allegations contained in pleadings, as well as exhibits attached to the complaint). 27 To sufficiently allege a prima facie case of discrimination in violation of the Americans with 1 Disabilities Act (“ADA”), the Plaintiff must demonstrate that (1) he is disabled within the meaning 2 of the ADA; (2) he is a qualified individual able to perform the essential functions of the job with 3 reasonable accommodation; and (3) he suffered an adverse employment action because of his 4 disability. Nunes v. Wal-Mart Stores, Inc.,

(9th Cir. 1999). Here, it seems 5 Plaintiff attached to his complaint photos of text messages spanning two different conversations 6 between himself and a supervisory figure employed with the Defendant. In the first conversation, 7 Plaintiff explains to his former supervisor that “today is [his] treatment day . . . It’s [sic] starts at 8 9am. It takes a little time to hook me up to the machine.” Defendant replied and told Plaintiff “do 9 not worry about that come in the afternoon from 12-3pm instead. Is this a weekly medical procedure? 10 Send me your weekly medical schedule please. I need to schedule this long term.” In the second 11 conversation, Defendant apologetically explains to Plaintiff that he does not believe this is a good 12 match because Conex West in Las Vegas is going through a “very critical building period in [its] 13 business.” Defendant states that it is “[his] fault for not asking more questions initially.” Finally, 14 Defendant states that “if Conex West ever gets to the point where it can “have our representatives 15 become home based employees you will be my first choice . . . [b]eing present for all five days 16 during the work week is mandatory for our success at this time in our business cycle.” 17 Plaintiff’s disability discrimination claim fail to sufficient allege facts upon which relief may 18 be granted pursuant to the standards established in Iqbal, 556 U.S. at 679. That is, Plaintiff must 19 demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. 20 Further, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the 21 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 22 at 678. Read liberally, Plaintiff has sufficiently plead that he is disabled within the meaning of the 23 ADA and that he suffered an adverse employment action because of his disability. However, 24 Plaintiff has failed to sufficiently plead that he is a qualified individual able to perform the essential 25 functions of the job with or without a reasonable accommodation. Accordingly, Plaintiff has not 26 met the pleading standards or alleged sufficient facts to establish more than he is a member of a 27 protected class and that he suffered an adverse employment action. 1 The Court therefore will dismiss Plaintiff’s complaint without prejudice for the Plaintiff to 2 file an amended complaint that meets the jurisdiction requirements. 3 If Plaintiff chooses to file an amended complaint, the document must be titled “Amended 4 Complaint.” The amended complaint must contain a short and plain statement of the grounds for 5 the Court’s jurisdiction. Fed. R. Civ. P. 8(a)(1). Additionally, the amended complaint must contain 6 a short and plain statement describing the underlying case and Defendant’s conduct that constitutes 7 discrimination. Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil Procedure adopt a 8 flexible pleading standard, Plaintiff still must give the Defendant Conex West fair notice of the 9 Plaintiff’s claims against it and Plaintiff’s entitlement to relief. 10 Additionally, Plaintiff is advised that if he files an amended complaint, the original complaint 11 (ECF No. 1-1) no longer serves any function in this case. As such, the amended complaint must be 12 complete in and of itself without reference to prior pleadings or other documents. The Court cannot 13 refer to a prior pleading or other documents to make Plaintiff’s amended complaint complete. 14 IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 15 Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this action. 16 Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of 17 any additional fees or costs or the giving of a security for fees or costs. This Order granting leave 18 to proceed in forma pauperis does not extend to the issuance of subpoenas at government expense.

19

20 21 22 23 24 25 26 27 1 IT IS FURTHER ORDERED that the Complaint (ECF No. 1-1) is DISMISSED without 2 prejudice for failure to state a claim upon which relief can be granted, with leave to amend. If 3 Plaintiff chooses to file an amended complaint, Plaintiff must file the amended complaint within 30 4 days from the date of this Order. Failure to comply with this Order may result in a recommendation 5 that this action be dismissed. 6 7 DATED THIS 5th day of September, 2019. 8

9

10 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 11

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