United States District Court, D. Oregon, Medford Division
DAVID N. PHILLIPS. Plaintiff.
HENRY SCHEIN, INC., Defendants.
D. CLARKE, United States Magistrate Judge
David N. Phillips eeks to proceed in forma pauperis
("IFP") in this action. For the reasons stated
below. Plaintiffs Complaint (#1) is dismissed without
prejudice and with leave to refile a First Amended Complaint
within thirty days of this ruling. Plaintiffs IFP application
(#2) is held in abeyance and will be considered when the
amended complaint is filed. Plaintiffs Motion for Pro Bono
Counsel (#3) is denied.
all parties instituting any civil action in United States
District Court must pay a statutory filing fee. 28 U.S.C.
§ 1914(a). However, the federal IFP statute, 28 U.S.C.
§ 1915(a)(1), provides indigent litigants an opportunity
for meaningful access to the federal courts despite their
inability to pay the costs and fees associated with that
access. To authorize a litigant to proceed IFP, a court must
make two determinations. First, a court must determine
whether the litigant is unable to pay the costs of commencing
the action. 28 U.S.C. § l9l5(a)(1). Second, it must
assess whether the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
regard to the second of these determinations, district courts
have the power under 28 U.S.C. § 1915(e)(2)(B) to screen
complaints even before the service of the complaint on the
defendants, and must dismiss a complaint if it fails to state
a claim. Courts apply the same standard under 28 U.S.C.
§ 1915(e)(2)(B) as when addressing a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Watison
v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To
survive a motion to dismiss under the federal pleading
standards, the complaint must include a short and plain
statement of the claim and "contain sufficient factual
matter, accepted as true, to "state a claim for relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544. 570 (2007)). "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. The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted
unlawfully." Id. The Court is not required to
accept legal conclusions, unsupported by alleged facts, as
pleadings are held to less stringent standards than pleadings
by attorneys. Haines v. Kemer, 404 U.S. 519, 520-521
(1972). That is, the court should construe pleadings by pro
se plaintiffs liberally and afford the plaintiffs the
benefits of any doubt. Karim-Panahi v. Los Angeles Police
Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation
omitted). Additionally, a pro se litigant is entitled to
notice of the deficiencies in the complaint and the
opportunity to amend, unless the complaint's deficiencies
cannot be cured by amendment. Id.
Plaintiffs Complaint is dismissed for failure to state a
claim for relief because it does not indicate whether
Plaintiff has received a Right To Sue Letter from the
Complaint alleges that he requested accommodation from his
employer for a disability. He does not identify the
disability, but he indicates that the defendant failed to
accommodate him in the manner requested. Plaintiff alleges
that, as a result of this failure, he was injured at work. It
appears as though Plaintiff believes his claim arises under
the Americans with Disabilities Act (ADA) for failure to
accommodate a disability, but he also claims economic damages
for his on-the-job injury, which would likely be a separate
tort claim. It is unclear whether Plaintiff is allowed to
bring such a claim, however, because he does not indicate
whether he was eligible for. or actually received,
worker's compensation for his injuries.
even if the only claim brought by Plaintiff arises under the
ADA, an employee must first file a charge with the Equal
Employment Opportunity Commission (EEOC) before filing a
complaint alleging an ADA violation against his employers.
See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th
Cir.1994) ("An individual plaintiff must first file a
timely EEOC complaint against the allegedly discriminatory
party before bringing an ADA suit in federal court.");
Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir.
2006). Plaintiff has not alleged or that he filed a timely
charge against his employer with the EEOC, nor has he
indicated in his Complaint that he is entitled to equitable
relief from this requirement. Plaintiff must cure this
deficiency before his case may proceed. His Complaint is
dismissed with leave to refile.
Plaintiffs Complaint is dismissed for lack of personal
assuming the allegations in the Complaint state a plausible
claim for relief, the Complaint does not adequately state the
basis for this Court to exercise personal jurisdiction over
the defendant. If Plaintiff files an amended complaint, he
must cure this deficiency to avoid dismissal, as discussed
as here, there is no federal statute governing personal
jurisdiction, the law of the state in which the Court sits
applies. CollegeSource. Inc. v. AcademyOne. Inc.,
653 F.3d 1066, 1073 (9th Cir.2011); Panavision Int'l,
L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998).
Oregon's long arm statute, Oregon Rule of Civil Procedure
("ORCP") 4, extends personal jurisdiction to the
extent permitted by federal due process. Gray & Co.
v. Firstenberg Mack Co., 913 F.2d 758, 760 (9th
Cir.1990); Tech Heads, Inc. v. Desktop Serv. Ctr.,
Inc., 105 F.Supp.2d 1142, 1144(D. Or. 2000).
due process requires that a nonresident defendant have
"certain minimum contacts"' with the forum
stale of such a nature that the exercise of personal
jurisdiction "does not offend 'traditional notions
of fair play and substantial justice.'"
International Shoe Co. v. State of Washington, Office of
Unemployment Compensation and Placement,326 U.S. 310,
316 (1945) (quoting Milliken v. Meyer,311 U.S. 457,
463 (1940)). This constitutional test may be satisfied by
showing that (1) the defendant has "substantial" or
"continuous and systematic" contacts with the forum
state-i.e. "general jurisdiction, " or (2) there is
a strong relationship between the defendant's forum
contacts and the cause of action-i.e. "specific
jurisdiction." Decker ...