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Bruce Edward Committe v. Oregon State University

United States District Court, D. Oregon, Eugene Division

September 26, 2018

BRUCE EDWARD COMMITTE, Plaintiff,
v.
OREGON STATE UNVERSITY, et al., Defendants,

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiff Bruce Committe filed suit against Oregon State University ("OSU") and several OSU employees after they failed to hire him for a faculty position at the University. Plaintiff alleges claims for age discrimination, retaliation, denial of academic freedom, and violations of his free speech and equal protection rights against all defendants. Several motions are pending before the Court, including plaintiffs Application to Proceed with his lawsuit in forma pauperis ("IFP") (doc. 2), and defendants' Motion to Dismiss (doc. 10). For the reasons set forth herein, plaintiffs Application to Proceed IFP (doc. 2) is GRANTED. Defendants' Motion to Dismiss (doc. 10) is also GRANTED.

         BACKGROUND

         Plaintiff alleges that OSU and its employees Mitzi M. Montoya, Jacob Rose, Edward J. Ray, Kim Kirkland, Clay Simmons, Edward Feser, and unnamed Doe defendants (collectively "Defendants") violated his rights when they chose not to hire him for an advertised faculty position. Plaintiff avers that he applied for, but was not offered, a faculty position in OSU's College of Business. Plaintiff alleges that OSU hired an individual several decades younger than the plaintiff and that this decision violated plaintiffs rights.

         Plaintiff has twice unsuccessfully applied to work at OSU previously. In both instances, plaintiff brought similar lawsuits against OSU alleging age discrimination when he was not hired. Committe v. Or. State Univ., 2015 WL 2170122 (D.Or. 2015) [hereinafter Committee I] (granting defendants' motion for summary judgment), aff'd, 683 Fed.Appx. 607 (9th Cir. 2017); Committe v. Or. State Univ., 2016 WL 4374945 (D.Or. 2016) [hereinafter Committe II] (granting defendants' motion to dismiss for failure to state a claim).

         In Committe I, plaintiff filed age discrimination claims against OSU and several employees when he applied for, but did not receive, an advertised faculty position. 2015 WL 2170122 at *11. The court found that OSU had non-discriminatory, non-pretextual reasons for not hiring the plaintiff, granted the defendant's motion for summary judgment, and dismissed the complaint with prejudice. Id. The Ninth Circuit affirmed. Committee 7, 683 Fed.Appx. at 607.

         In Committe II, plaintiff again brought age discrimination claims against OSU along with retaliation and violation of equal protection claims after OSU decided not to hire the plaintiff for another position for which he had applied, Committe II, 2016 WL 4374945 at *1. Again, the court dismissed the complaint but granted leave to amend. Id. at *3. Plaintiff failed to amend and it was dismissed with prejudice. Id. Plaintiff currently alleges that OSU's most recent decision not to hire him was, in part, retaliation for his previous lawsuits.

         In the present case, plaintiff alleges claims for (1) state law age discrimination, (2) state law retaliation, (3) denial of "academic freedom" (4) failure to train and educate, and (5) denial of equal protection.

         STANDARD OF REVIEW

         All parties who commence an action in federal district court must pay a filing fee, 28 U.S.C. § 1914(a). However, to facilitate equal access to the court system, 28 U.S.C. § 1915 allows indigent plaintiffs to apply for a fee waiver. Before granting a plaintiff leave to proceed IFP, without paying fees, the court must determine that the litigant is actually unable to pay. 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000).

         Even if the court finds that the litigant is unable to pay, it is under an obligation to dismiss if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary damages from a party who is immune from such relief. 28 U.S.C. § l9l5(e)(2)(B)(i)-(iii); Lopez, 203 F.3d at 1126; Bobo v. Plymouth Housing Group, 2014 WL 6085858, *1(D. Or. 2014).

         When making this determination, the court applies the same standard as when it evaluates a Federal Rule of Civil Procedure 12(b)(6) motion. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) ("The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim."); Bobo, 2014 WL 6085858 at *2; Hutchinson v. State, 2017 WL 5505572, *2 (D. Or. 2017). Under this standard, when viewed in the light most favorable to the plaintiff, a complaint must contain sufficient facts to '"state[] a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell All Corp. v. Twombfy, 550 U.S. 544, 570 (2007)).

         The complaint must allege "more than a sheer possibility that that a defendant has acted unlawfully" (Id. at 678) and present more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Bell Atlantic Corp., 550 U.S. at 555. The court need not accept legal assertions as true, and while "[f]he court views the complaint liberally [it] will not supplant vague and conclusory allegations." Committe II, 2016 WL 4374945 at *2. If the court determines that the IFP complaint fails to state a claim upon which relief can be granted, it is required to dismiss. 28 U.S.C. § l9l5(e)(2)(B)(i)-(iii).

         Pro se litigants are held to a less stringent standard than attorneys, and courts construe their pleadings liberally and give them the benefit of the doubt Haines v. Kerner,404 U.S. 519, 520-21 (1972); Hutchinson, 2017 WL 5505572 at *2. Pro se litigants are entitled to "notice of the deficiencies in the complaint" and if those deficiencies can be cured, an opportunity to amend. Hutchinson, 2017 WL 5505572 at *2 (citing Karim-Panahi v. L.A. Police Dep't,839 F.2d 621, 623 (9th Cir. 1988)). However, "while the Court must leniently construe pro se pleadings, Plaintiff[s] must still ...


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