1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MITCHEL MCDONALD, No. 2:21-cv-1561 KJM DB PS 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF

MOTOR VEHICLES IN SACRAMENTO

15 COUNTY, 16 Defendant. 17 18 Plaintiff Mitchel McDonald is proceeding in this action pro se. This matter was referred 19 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 20 before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28 21 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains that the defendant discriminated 22 against plaintiff based on plaintiff’s disability. 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 26 below, plaintiff’s complaint will be dismissed with leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Complaint 11 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 12 that plaintiff is entitled to relief. In this regard, the complaint alleges that plaintiff “is a qualified 13 individual with a disability” and “an employee of the defendant.” (Compl. (ECF No. 1) at 2.) It 14 appears that plaintiff was disciplined for “not wearing a mask in the office,” after plaintiff 15 “informed his supervisor . . . that he has a disability which precludes him from accepting any 16 mitigations measures proposed by the defendant[.]” (Id. at 3.) The complaint alleges that 17 plaintiff’s employment was terminated in violation of “the Americans with Disabilities Act,” 18 (ADA). (Id.) 19 “Congress enacted the ADA ‘to provide clear, strong, consistent, enforceable standards 20 addressing discrimination against individuals with disabilities.’” Arizona ex rel. Goddard v. 21 Harkins Amusement Enterprises, Inc., 603 F.3d 666, 669 (9th Cir. 2010) (quoting 42 U.S.C. § 22 12101(b)(2)). Pursuant to the ADA: 23 No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard 24 to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, 25 conditions, and privileges of employment. 26 42 U.S.C. § 12112(a). 27 However, “an employee bears the ultimate burden of proving that he is [] disabled under 28 the Act[.]” Bates v. United Parcel Service, Inc., 511 F.3d 974, 988 (9th Cir. 2007). Here, the 1 complaint simply alleges in a vague and conclusory manner that plaintiff is disabled. Moreover, 2 to establish a defendant violated the ADA plaintiff must show that the defendant failed “to make 3 a reasonable modification in ‘policies, practices, or procedures,’42 U.S.C. § 12182(b)(2)(A)(ii), 4 necessary to accommodate his disability.” Fortyune v. American Multi-Cinema, Inc., 364 F.3d 5 1075, 1082 (9th Cir. 2004). Here, it appears that the complaint is alleging that the defendant 6 attempted to offer an accommodation but plaintiff wanted “to be left alone[.]” (Compl. (ECF No. 7 1) at 5.) Finally, the complaint notes that defendant requested plaintiff “provide a doctor’s note 8 substantiating his claim of disability.” (Id. at 3.) “A covered entity may make inquiries into the 9 ability of an employee to perform job-related functions.” 42 U.S.C. § 12112. 10 II. Leave to Amend 11 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 12 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 13 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 14 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 15 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 16 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 17 court does not have to allow futile amendments). 18 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 19 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 20 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 21 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 22 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 23 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 24 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 25 1988)). 26 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend 27 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted 28 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file 1 an amended complaint “the tenet that a court must accept as true all of the allegations contained 2 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause 3 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. 4 “While legal conclusions can provide the complaint’s framework, they must be supported by 5 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line 6 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 7 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 8 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 9 in itself without reference to prior pleadings. The amended complaint will supersede the original 10 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 11 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 12 and identified in the body of the complaint, and each claim and the involvement of each 13 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 14 must also include concise but complete factual allegations describing the conduct and events 15 which underlie plaintiff’s claims. 16 CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. The complaint filed August 31, 2021 (ECF No. 1) is dismissed with leave to 19 amend.1 20 2. Within twenty-eight days from the date of this order, an amended complaint shall be 21 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 22 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 23 assigned to this action and must be titled “Amended Complaint.” 24 //// 25

1 Plaintiff need not file another application to proceed in forma pauperis at this time unless 26 plaintiff’s financial condition has improved since the last such application was submitted. 27 2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. 1 3. Failure to comply with this order in a timely manner may result in a recommendation 2 that this action be dismissed. 3 DATED: November 1, 2021 /s/ DEBORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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