Brooks v. Topaz Super Carwash et al, No. 2:2023cv02060 - Document 5 (D. Nev. 2024)
Court Description: ORDER Granting 4 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act, the Nevada Southern Detention Center will forward paymen ts from the account of Zalton E. Brooks, Inmate No. 72549510, to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits (in months that the account exceeds $10.00) until the full $ 350 filing fee has been paid for this action. The Clerk of Court is kindly directed to send a copy of this order to the Finance Division of the Clerk's Office. The Clerk of Court is also kindly directed to send a copy of this order to the attent ion of Director of Inmate Accounting c/o Warden's Office at 2190 East Mesquite Ave., Pahrump, NV 89060. IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise unsuccessful, the full filing fee will still be due, pursuan t to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff's complaint (ECF No. 1 -1) on the docket but shall not issue summons. IT IS FUR THER ORDERED that Plaintiff's complaint (ECF No. 1 -1) is dismissed without prejudice for failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have until April 15, 2024 to file an amended complaint if t he noted deficiencies can be corrected. See Order for additional information. Amended Complaint deadline: 4/15/2024. Signed by Magistrate Judge Daniel J. Albregts on 3/14/2024. (Copies have been distributed pursuant to the NEF. CC: Finance. Copy of Order mailed to Director of Inmate Accounting. - RJDG)
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Brooks v. Topaz Super Carwash et al Doc. 5 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 6 *** Zalton E. Brooks, Plaintiff, 7 8 9 Case No. 2:23-cv-02060-APG-DJA v. Order Topaz Super Carwash; and Bruno Bernada, Defendants. 10 Under 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 11 12 authority to proceed in forma pauperis. (ECF No. 4). Plaintiff also submitted a complaint. (ECF 13 No. 1-1). Because the Court finds that Plaintiff’s application is complete, it grants his application 14 to proceed in forma pauperis. The Court also screens Plaintiff’s complaint. 15 I. In forma pauperis application. Plaintiff filed the affidavit required by § 1915(a). (ECF No. 4). Plaintiff has shown an 16 17 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 18 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 19 Plaintiff’s complaint. 20 II. 21 Screening the complaint. Upon granting an application to proceed in forma pauperis, courts additionally screen the 22 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 23 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 25 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 26 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 27 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 28 F.3d 1103, 1106 (9th Cir. 1995). Dockets.Justia.com 1 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 2 complaint for failure to state a claim upon which relief can be granted. Review under Rule 3 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 4 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 5 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 6 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 7 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 8 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 9 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 10 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 11 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 12 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 13 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 14 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 15 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 16 construction of pro se pleadings is required after Twombly and Iqbal). 17 Federal courts are courts of limited jurisdiction and possess only that power authorized by 18 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 19 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 20 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 21 federal law creates the cause of action or where the vindication of a right under state law 22 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 23 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 24 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 25 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 26 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 27 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 28 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of Page 2 of 8 1 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 2 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 3 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 4 A. Plaintiff’s allegations. 5 Plaintiff, an inmate in the custody of the Nevada Southern Detention Center, sues his 6 former employer, Topaz Super Carwash and its owner, Bruno Bernada. 1 (ECF No. 1-1 at 1-3). 7 Plaintiff brings three counts: (1) “They have violated the base hourly, wages, and labor laws by 8 the Federal government, unprofessional treatment of an employee! Threats to life and safety!”; 9 (2) “Our rights to be paid for services rendered on a daily wage so we could live”; and (3) “Mr. 10 Bruno has openly tried to get me to commit perjury on his behalf!” Plaintiff does not identify the civil rights he believes have been violated in those counts. 11 12 However, liberally construing Plaintiff’s complaint, it appears that he is bringing claims for 13 violations of the Fair Labor Standards Act, violations of Nevada’s minimum wage requirements, 14 race discrimination in violation of Title VII, and breach of contract. 2 Plaintiff alleges that he and his wife 3 began working for Topaz in 2019, fulfilling the 15 16 positions of attendants, managers, security officers, customer service representatives, and grounds 17 keepers. (Id. at 3). Plaintiff asserts that they worked eighteen to nineteen hour days, seven days a 18 week, but were not paid minimum wage under federal or state standards. (id.). Plaintiff asserts 19 20 21 22 23 24 25 26 27 28 1 Plaintiff also lists “(David) Boyfriend” as a defendant, but does not otherwise reference this person in the complaint. 2 The Court does not find Plaintiff’s third count to establish a cognizable cause of action. (ECF No. 1-1 at 6). Plaintiff asserts that, while he was incarcerated, he received a letter from a law firm representing Mr. Bernada asking Plaintiff to testify regarding a case involving an alleged assault on Mr. Bernada. (Id.). Plaintiff asserts that he told the attorney that he was not a witness to the assault and that he did not believe Mr. Bernada was injured. (Id.). However, Plaintiff has not provided any authority, and the Court is not aware of any, that would make simply asking a person to testify actionable. This is especially true because Plaintiff informed the attorney that he did not actually witness the assault. Without more, the Court does not find these allegations to constitute a claim upon which relief can be granted. 3 Plaintiff’s complaint references both him and his wife. However, he is the only party bringing this action. Page 3 of 8 1 that he was paid $9.75 per hour. (Id. at 4). Plaintiff alleges that he and his wife worked without 2 shelter, power, or running water. (Id. at 4). Because the property lacked power, Plaintiff and his 3 wife’s personal property was stolen but not caught on tape. (Id.). Plaintiff asserts that they were 4 subject to these conditions as a result of Mr. Bernada’s “racial behavior.” (Id.). Plaintiff also alleges that he performed remodeling work on Bernada’s condo, but Bernada 5 6 did not pay him for the work. (Id.). Additionally, Bernada allegedly told Plaintiff and his wife 7 that Bernada would allow them to open a restaurant, apparently on the carwash property, but later 8 came up with reasons to renege on that agreement. (Id. at 5). Plaintiff asserts that Bernada 9 discriminated against him on the basis of race by bringing in a new worker who was white, giving 10 the new worker better housing than Plaintiff, and by “run[ning] us away from our homes without 11 pay, destroying all personal belonging[s] without allowing us to reenter property!” (Id.). 1. 12 FLSA. The FLSA mandates that employers with employees “engaged in commerce or in the 13 14 production of goods for commerce” or with employees who work for an “enterprise engaged in 15 commerce or in the production of goods for commerce” pay their employees federal minimum 16 wages. 29 U.S.C. § 206(a). 4 The federal minimum wage is $7.25 per hour. 29 U.S.C. 17 § 206(a)(1). Employers also cannot require their employees to work more than forty hours a 18 week unless the employee receives compensation at a rate not less than one and one-half times 19 the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). An employer who violates 20 Section 206 or 207 is liable to the employee for “the amount of their unpaid minimum wages, or 21 their unpaid overtime compensation, as the case may be, and in an additional equal amount as 22 liquidated damages.” 29 U.S.C. § 216(b). 23 24 25 26 27 28 4 29 U.S.C. § 203(s)(1), in relevant part, defines an “enterprise engaged in commerce or in the production of goods for commerce” as one that “(i) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated)…” Page 4 of 8 1 As a preliminary matter, Plaintiff has not alleged whether he was “engaged in commerce 2 or in the production of goods for commerce” or if he was “employed in an enterprise engaged in 3 commerce or in the production of goods for commerce” for the purposes of the FLSA. Plaintiff 4 alleges that his wages were $9.75 per hour, which exceeds the federal minimum wage. And 5 although Plaintiff asserts that he worked overtime, he does not allege that he was not paid 6 overtime wages. Plaintiff has thus not alleged a colorable claim for violation of the FLSA and the 7 Court dismisses this claim without prejudice and with leave to amend. 8 9 2. Nevada’s minimum wage statute. In 2006, Nevada voters amended the state constitution by enacting the Minimum Wage 10 Act. Nev. Const. art. 15, § 16. That act requires, in part, that employers pay employees the 11 minimum wage set forth therein, as adjusted yearly. Id. at § 16(A). The minimum wage set by 12 that act is $5.15 if the employer does not offer health benefits and $6.15 if the employer does. Id. 13 Nevada Revised Statute 608.016 provides that an employer shall pay an employee for each hour 14 the employee works. Nevada Revised Statute 608.018(1) provides that an employer shall pay one 15 and a half times an employee’s regular rate whenever an employee works more than forty hours 16 in any scheduled week of work or more than eight hours in a workday. Nevada Revised Statute 17 608.135(1) provides that, if an employer fails to pay wages in accordance with the requirements 18 set forth in NRS 608.020 to 608.050, the employee may, at any time within two years after the 19 employer’s failure, bring a civil action against the employer. 20 To the extent Plaintiff is alleging that Topaz and Bernada violated Nevada’s minimum 21 wage laws, he has not asserted sufficient facts to make this claim. Again, Plaintiff alleges that his 22 wages were $9.75 per hour, which exceeds Nevada’s minimum wage. And although Plaintiff 23 asserts that he worked overtime, he does not allege that he was not paid overtime wages. 24 Additionally, Plaintiff does not provide the dates he worked for Topaz other than stating he 25 started in 2019. But 2019 is more than two years before he filed this civil action. The Court thus 26 denies Plaintiff’s claim under this statute without prejudice and with leave to amend. 27 28 Page 5 of 8 3. 1 Discrimination. To establish a prima facie case of racial discrimination under Title VII, plaintiff must 2 3 allege that he: (1) belongs to a class of persons protected by Title VII; (2) performed his job 4 satisfactorily; (3) suffered an adverse employment action; and (4) was treated differently than a 5 similarly situated employee who does not belong to the same protected class as plaintiff.” 6 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). Plaintiff satisfies 7 the first and third elements of this claim, but not the second and fourth. Regarding the first and 8 third elements, Plaintiff alleges that Bernada discriminated against him based on race, a protected 9 class under Title VII. Plaintiff also alleges that he suffered adverse employment actions by being 10 subjected to unsafe working conditions. However, regarding the second and third elements, 11 Plaintiff does not allege that he performed his job satisfactorily. And while Plaintiff alleges that 12 Bernada treated a white employee more favorably, 5 Plaintiff does not allege that this employee 13 was similarly situated. To the contrary, while Plaintiff asserts that he worked the positions of 14 attendant, manager, security, customer service, and grounds keeper, Plaintiff does not allege what 15 positions the white employee was hired to fulfill. The Court thus dismisses Plaintiff’s Title VII 16 discrimination claim without prejudice and with leave to amend. 4. 17 Breach of contract. 18 To establish breach of contract, a plaintiff must prove (1) existence of the contract, 19 (2) defendant’s breach, and (3) the damages that resulted. Saini v. Int’l Game Tech., 434 F. Supp. 20 2d 913, 919-20 (D. Nev. 2006) (citation omitted). Plaintiff appears to allege breach of contract 21 for work he completed in remodeling Bernada’s home and for Bernada’s promises that Plaintiff 22 could open a restaurant on the carwash premises. However, Plaintiff does not allege whether the 23 remodeling work or the promises Bernada made were based in any contract. Nor does Plaintiff 24 25 26 27 28 5 While the Court can liberally construe that the white employee did not belong to the same protected class as Plaintiff from Plaintiff’s allegations, Plaintiff should specifically allege this element in any amended complaint by specifying the protected class to which he belongs. See Candaza v. Sutherland Global Services, No. 2:19-cv-02152-JAD-NJK, 2020 WL 1514739, at *2 (D. Nev. Mar. 27, 2020) (finding a plaintiff’s allegation that she is Asian and from the Philippines sufficient to identify that the plaintiff belonged to a protected class). Page 6 of 8 1 specify what damages occurred from the breach of those contracts. The Court thus dismisses this 2 claim without prejudice and with leave to amend. 3 4 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 5 pauperis (ECF No. 1) is granted. Plaintiff will not be required to pay an initial installment fee. 6 Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended by the 7 Prison Litigation Reform Act. The movant herein is permitted to maintain this action to 8 conclusion without the necessity of prepayment of fees or costs or the giving of security therefor. 9 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the 10 Prison Litigation Reform Act, the Nevada Southern Detention Center will forward payments from 11 the account of Zalton E. Brooks, Inmate No. 72549510, to the Clerk of the United States 12 District Court, District of Nevada, 20% of the preceding month’s deposits (in months that the 13 account exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of 14 Court is kindly directed to send a copy of this order to the Finance Division of the Clerk’s Office. 15 The Clerk of Court is also kindly directed to send a copy of this order to the attention of Director 16 of Inmate Accounting c/o Warden’s Office at 2190 East Mesquite Ave., Pahrump, NV 89060. 17 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 18 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended by the 19 Prison Litigation Reform Act. 20 21 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s complaint (ECF No. 1-1) on the docket but shall not issue summons. 22 IT IS FURTHER ORDERED that Plaintiff’s complaint (ECF No. 1-1) is dismissed 23 without prejudice for failure to state a claim upon which relief can be granted, with leave to 24 amend. Plaintiff will have until April 15, 2024 to file an amended complaint if the noted 25 deficiencies can be corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed 26 that the Court cannot refer to a prior pleading (i.e., the original complaint) to make the amended 27 complaint complete. This is because, generally, an amended complaint supersedes the original 28 complaint. Local Rule 15-1(a) requires that an amended complaint be complete without reference Page 7 of 8 1 to any prior pleading. Once a plaintiff files an amended complaint, the original complaint no 2 longer serves any function in the case. Therefore, in an amended complaint, as in an original 3 complaint, each claim and the involvement of each Defendant must be sufficiently alleged. 4 Failure to comply with this order may result in the recommended dismissal of this case. 5 6 7 8 DATED: March 14, 2024 DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 8 of 8
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