Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN SPENCER, Case No.: 26-CV-4189 TWR (DEB)

12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S RENEWED MOTION TO PROCEED IN FORMA 14 CITY OF SAN DIEGO, PAUPERIS, AND (2) DISMISSING 15 Defendant. COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 16 U.S.C. §§ 1915(e)(2)(B) 17 (ECF No. 2) 18 19 Presently before the Court is Plaintiff Melvin Spencer’s renewed Application to 20 Proceed in District Court Without Prepaying Fees or Costs (“IFP Mot.,” ECF No. 4). As 21 the Court previously informed Plaintiff, (see ECF No. 3 at 2–3), all parties instituting any 22 civil action, suit, or proceeding in a district court of the United States, except an application 23 for a writ of habeas corpus, must pay filing and administration fees totaling $405.1 28 24 U.S.C. § 1914(a). A court may, however, in its discretion, allow a plaintiff to proceed 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave 28 1 without paying these fees if the plaintiff seeks leave to proceed in forma pauperis (“IFP”) 2 by submitting an affidavit demonstrating the fees impose financial hardship. See 28 U.S.C. 3 § 1915(a); Escobedo v. Applebees, 787 F.3d 1226, 1234 (2015). Although the statute does 4 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 5 poverty with some particularity. Escobedo, 787 F.3d at 1234. Granting a plaintiff leave to 6 proceed IFP may be proper, for example, when the affidavit demonstrates that paying court 7 costs will result in a plaintiff’s inability to afford the “necessities of life.” Id. The affidavit, 8 however, need not demonstrate that the plaintiff is destitute. Id. 9 Although Plaintiff’s second affidavit is also incomplete, Plaintiff does indicate that 10 his “monthly income is well below [his] monthly expenses,” (see IFP Mot. at 32); he is “in 11 extreme financial hardship,” (see id. at 6); and “[a]ll [his] money goes to bills, food, & 12 gas.” (See id.) The Court therefore concludes that Plaintiff has met his burden of 13 demonstrating that paying the $405 filing fee will result in his inability to afford the 14 necessities of life and GRANTS Plaintiff’s renewed IFP Motion (ECF No. 4). 15 This does not, however, end the Court’s inquiry. Having granted Plaintiff’s IFP 16 Motion, the Court must screen Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). 17 Under this statute, courts shall review and sua sponte dismiss any complaint or part thereof 18 that is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks 19 damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 20 (9th Cir. 2000) (en banc). “The purpose of [screening] is ‘to ensure that the targets of 21 frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 22 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 23 689 F.3d 680, 681 (7th Cir. 2012)). 24 Pursuant to Rule 8, a pleading must contain “a short and plain statement of the claim 25 showing that a pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The standard for 26 27 2 Because the pages of Plaintiff’s IFP Application have been filed out of order, the Court refers to 28 1 determining whether a plaintiff has failed to state a claim upon which relief can be granted 2 under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 3 standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 4 2012). Rule 12(b)(6) requires that complaints “contain sufficient factual matter, accepted 5 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks omitted). Detailed factual allegations are not 7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. And the “mere possibility 9 of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” will 10 not suffice. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 11 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 12 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal 13 interpretation to a pro se complaint, however, a court may not “supply essential elements 14 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 15 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend if it appears 16 “at all possible that the plaintiff can correct the defect,” unless the court determines that 17 “the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d 18 at 1130–31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. 19 Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 20 Plaintiff’s Complaint provides, in its entirety: 21 I started working for the City of San Diego in the Park & Recreation Department 8/19–8/23. 22 23 I repeatedly experienced racism, nepotism, favoritism, verbal abuse & denied employment opportunities. 24 25 I was ultimately terminated based on erroneous lies, that led to my termination in 8/23. 26 27 . . . 28 1 I want a court hearing with a jury to state all my facts to support my innocence. I accumulated from 8/19–8/23 during those 4 years[.] I have plenty of factual 2 evidence to expose their lies & deceit against me. 3 4 (See ECF No. 1 (“Compl.”) at 2–3.) While Plaintiff’s Complaint certainly complies with 5 Rule 8(a)(2)’s directive that it contain “a short and plain statement of the claim,” the Court 6 see several issues with Plaintiff’s Complaint as currently pleaded. 7 First, it is unclear whether Plaintiff is asserting his claims under California or federal 8 law. For purposes of this Order, the Court assumes that Plaintiff is proceeding under 9 federal law because the Court would otherwise be without subject-matter jurisdiction; 10 however, to the extent Plaintiff intends to assert all of his claims under California law, he 11 should refile this action in the Superior Court of California for the County of San Diego. 12 Second, because Plaintiff is alleging claims for discrimination, harassment, and/or 13 wrongful termination, he was required to file an administrative complaint with the U.S. 14 Equal Employment Opporunity Commission (“EEOC”) or California Civil Rights 15 Department (“CRD,” formerly the California Department of Fair Employment and 16 Housing) before filing this lawsuit. See Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th 17 Cir. 2006) (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)). The claim 18 generally “must be filed within 300 days of the claimed event of discrimination” with the 19 EEOC, see id. (citing 42 U.S.C. § 2003e-5(e)), or “within one year of the alleged 20 discriminatory action” with the CRD, see id. at 1061 n.3 (citing Cal. Gov’t Code 21 § 12960(d)), although the requirement is “subject to equitable doctrines such as waiver and 22 tolling.” See id. at 1061 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 23 (1982)). Here, it is not clear whether Plaintiff ever filed a timely charge with the EEOC 24 and/or CRD or, if he has not, whether he can do so now, over three years after his 25 termination. It therefore appears likely that Plaintiff’s claims are time-barred. 26 Third, Plaintiff’s Complaint fails to allege factual allegations to support his 27 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 28 statements.” See Iqbal, 556 U.S. at 678. Plaintiff indicates he has “plenty of factual 1 evidence,” (see Compl. at 3); while he need not include all of the facts and evidence 2 underlying his claims at this time, he must allege sufficient facts for the Court plausibly to 3 conclude that the City of San Diego racially discriminated against, harassed, or wrongfully 4 terminated Plaintiff. See Iqbal, 556 U.S. at 678. To state a claim for racial discrimination, 5 for example, Plaintiff must be able to plead facts showing 6 (1) that the plaintiff belongs to a class of persons protected by Title VII[ of 7 the Civil Rights Act of 1964]; (2) that the plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse employment action; 8 and (4) that the plaintiff’s employer treated the plaintiff differently than a 9 similarly situated employee who does not belong to the same protected class as the plaintiff. 10 11 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citing 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). This means that Plaintiff 13 would need to allege some facts regarding his race, job performance, termination, how his 14 employer treated him, and how his employer treated other employee(s) of other race(s). 15 Such allegations are missing from the instant Complaint. 16 For all these reasons, the Court DISMISSES Plaintiff’s Complaint (ECF No. 1) 17 under 28 U.S.C. § 1915(e)(2)(B). Because Plaintiff may be able to allege additional facts 18 to cure the deficiencies noted above, however, the Court’s dismissal is WITHOUT 19 PREJUDICE, and Plaintiff MAY FILE an amended complaint within 60 days of the date 20 of this Order. Any amended complaint must be complete by itself without reference to the 21 original pleading. Defendants not named and any claim not re-alleged in the amended 22 complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 23 v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 24 pleading supersedes the original.”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 25 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged 26 in an amended pleading may be “considered waived if not repled”). If Plaintiff fails to file 27 an amended complaint within sixty (60) days, the Court will enter a final Order dismissing 28 this civil action based both on his failure to state a claim upon which relief can be granted 1 || pursuant to 28 U.S.C. § 1915(e)(2)(B) and his failure to prosecute in compliance with a 2 || Court Order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 3 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 4 || district court may convert the dismissal of the complaint into dismissal of the entire 5 || action.”). 6 IT IS SO ORDERED. 7 ||Dated: September 21, 2026 —— (2 8 [a re 9 Honorable Todd W. Robinson 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28