United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
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
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.
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
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.
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.
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.
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).
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).
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)).
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. §
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 ...