Xing Wei Jing v. Los Angeles County, No. 2:2013cv05207 - Document 28 (C.D. Cal. 2014)
Court Description: ORDER GRANTING DEFENDANTS MOTION TO DISMISS 20 by Judge Dean D. Pregerson: Defendants Motion to Dismiss is GRANTED. The Amended Complaint is DISMISSED, with leave to amend. Any second amended complaint shall be filed within thirty days of the date of this order. (lc). Modified on 10/6/2014. (lc).
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Xing Wei Jing v. Los Angeles County Doc. 28 1 2 O 3 4 NO JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 XING WEI JING, 12 Plaintiff, 13 14 v. COUNTY OF LOS ANGELES, 15 Defendants. 16 17 18 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-05207 DDP (MANx) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [Dkt. 20] 19 20 Presently before the court is a Motion to Dismiss filed by 21 Defendant County of Los Angeles. (Dkt. 20.) 22 parties’ submissions, the court grants the motion and adopts the 23 following order. 24 I. 25 Having considered the Background Plaintiff is a forty-seven year old Chinese-American citizen. 26 ([First] Amended Complaint (“FAC”) ¶¶ 1, 3, p. 11:1-2.) 27 doctor in China, but was employed as a registered nurse at LAC/USC 28 Medical Center. (FAC. ¶¶ 1,8.) He was a Plaintiff participated in the Dockets.Justia.com 1 intensive care unit program in the spring and summer of 2012. 2 ¶ 2.) 3 Chinese employee. 4 position, and effectively terminated on February 22, 2012 5 Compl. ¶¶ 4.) 6 all times and that, in spite of the rating, he was replaced by 7 someone less qualified. 8 9 (FAC Plaintiff was the oldest person in the program, and the only (FAC. ¶3.) Plaintiff was demoted to a clerk (Am. Plaintiff alleges that he was rated “competence” at (FAC ¶¶ 2,4) At a Christmas party in 2011, Plaintiff’s immediate supervisor’s husband asked Plaintiff about his age, religion, and 10 reasons for moving to the United States. 11 2012, assistant supervisor Amelia Shovlin also inquired about his 12 age and reasons for immigrating. 13 (FAC ¶ 5.) In February (FAC ¶ 6.) Plaintiff also complains that some instructors spread rumors 14 that “Chinese doctor should not be nurse” and “Chinese nurse will 15 get fired,” while some preceptors graded him “not met” on 16 evaluations and opined to colleagues that Plaintiff was “too old to 17 work in ICU.” 18 face to plaintiff face 2, 3, fists far, shaving his head to 19 Plaintiff said, ‘I would not let you pass this program, are you 20 emotional?’” (FAC. ¶ 25.) 21 called “Ying Yang” and “Buda” by preceptor Carmen Martinez. 22 10) 23 eyebrows were too long, and needed to be cut. 24 Plaintiff explained that long eyebrows were important in his 25 culture, to which Martinez replied “forget your culture.” 26 11.) 27 nurses that she would not give him a “met” rating on the evaluation 28 because she did not like him. (FAC. ¶¶ 8-9) Instructor Mike Pucket “ reached his Plaintiff also contends that he was (FAC ¶ The same preceptor also suggested to Plaintiff that his (FAC ¶ 11.) (FAC ¶ Plaintiff contends that he overheard Martinez say to other (FAC ¶ 11.) 2 Plaintiff further 1 alleges that he was required to sign “DHS Discipline Manual 2 Attestation form” on two occasions, but that no one else signed it. 3 (FAC. ¶ 7.) 4 twice because his form was lost, “which is not true, but ‘Scaring’, 5 because is kept in HR, not in manager’s hands.” 6 Plaintiff alleges that he was told he had to sign (Id.) Plaintiff filed several complaints to managers, union 7 authorities, and other throughout 2012 and 2013. 8 Plaintiff was required to attended some type of counseling session, 9 during which someone gave false testimony regarding Plaintiff’s 10 performance. 11 (FAC ¶ 28). Plaintiff was then forced to resign.1 (Id.) 12 (FAC ¶ 14.) Plaintiff alleges five claims in the FAC: (1) “discrimination 13 termination”; (2) “hostile working environment, and harassment”; 14 (3) “retaliation”; (4) “intentional discrimination” and (5) 15 “employment defamation.” 16 employment practices), 42 U.S.C. § 1981 (equal rights under the 17 law) and Cal. Civil Code § 46(3) (slander). 18 dismiss the FAC. He cites 42 U.S.C. § 2000e-2 (unlawful Defendant now moves to 19 II. 20 A complaint will survive a motion to dismiss when it contains Legal Standard 21 “sufficient factual matter, accepted as true, to state a claim to 22 relief that is plausible on its face.” 23 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 24 570 (2007)). 25 “accept as true all allegations of material fact and must construe Ashcroft v. Iqbal, 556 U.S. When considering a Rule 12(b)(6) motion, a court must 26 1 27 28 The timing of the events alleged in the FAC is somewhat unclear. Though Plaintiff alleges that he resigned in August 2012, he continued working past that time, before later being terminated. 3 1 those facts in the light most favorable to the plaintiff.” 2 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 3 need not include “detailed factual allegations,” it must offer 4 “more than an unadorned, the-defendant-unlawfully-harmed-me 5 accusation.” 6 allegations that are no more than a statement of a legal conclusion 7 “are not entitled to the assumption of truth.” 8 under the liberal pleading standard of Federal Rule of Civil 9 Procedure 8(a)(2), under which a party is only required to make a Iqbal, 556 U.S. at 678. Resnick Although a complaint Conclusory allegations or Id. at 679. Even 10 “short and plain statement of the claim showing that the pleader is 11 entitled to relief,” a “pleading that offers ‘labels and 12 conclusions’ or a ‘formulaic recitation of the elements of a cause 13 of action will not do.’” 14 555). Id. 678 (quoting Twombly, 550 U.S. at 15 III. Discussion 16 A complaint must include “a short and plain statement of the 17 claim showing that the pleader is entitled to relief.” 18 Civ. P. 8(a)(2). 19 direct.” 20 distracting pleadings do not meet the requirements of Rule 8. 21 Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th 22 Cir. 2011). 23 confused and redundant that its true substance, if any, is well 24 disguised.” 25 1131 (9th Cir. 2008)(quoting Gillibeau v. City of Richmond, 417 26 F.2d 426, 431 (9th Cir. 1969). 27 28 Fed. R. The allegations must be “simple, concise and Fed. R. Civ. P. 8(d)(1). Confusing, ambiguous, and See A complaint must be dismissed if it is “so verbose, Hearns v. San Bernardino Police Dep’t, 530 F.3d. 1124, This court dismissed Plaintiff’s original complaint for failure to comply with Rule 8. (Dkt. 17). 4 Recognizing Plaintiff’s 1 pro se status, the court dismissed the original complaint with 2 leave to amend. 3 suffers from many of the same deficiencies as the original 4 complaint. 5 “discrimination termination” refers to his race, age, religion and 6 “gene of his image: ‘short, long eyebrow,’” without specifying on 7 which protected characteristic his claim is based. 8 alleges that he was rated “competence” at all times (FAC ¶ 2), but 9 also that he received “not met” evaluations. (FAC ¶9.) Plaintiff’s First Amended Complaint, however, For example, Plaintiff’s first claim for Plaintiff also Plaintiff’s 10 amended complaint also includes numerous allegations, such as those 11 involving conversations at a Christmas party, that are not tied to 12 any particular claim or otherwise explained.2 13 sequence of events alleged remains unclear. 14 Amended Complaint does not adequately identify the basis for each 15 cause of action or give Defendant sufficient notice of what 16 Plaintiff’s claims are, and must therefore be dismissed. 17 Pickern v. Pier 1 Imports, 457 F.3d 963, 968 (9th Cir. 2006). 18 Furthermore, the Plaintiff’s First See Though Defendant contends that amendment would be futile, the 19 court disagrees. 20 improvement upon Plaintiff’s original complaint. 21 Plaintiff’s opposition to the instant motion cannot cure the 22 deficiencies of the First Amended Complaint, it is significantly 23 better organized than Plaintiff’s first opposition, and is While the FAC does not satisfy Rule 8, it is an Similarly, while 24 25 26 27 28 2 The lack of context for many of Plaintiff’s allegations is potentially critical. For example, even if some comments, taken out of context, appear to have a negative connotation, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions’ of employment.’” Farragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). 5 1 sufficient to persuade the court that Plaintiff may be able to 2 state a viable claim upon amendment. 3 It appears that Plaintiff has expended considerable effort and 4 time to research and compose his two complaints and responses to 5 the motions to dismiss, despite apparent language barriers. 6 court once again notes that the Federal Pro Se Clinic, which, 7 though not administered by this court, is located within the 8 courthouse in Room G-19 at 312 N. Spring Street, Los Angeles, 9 California 90012, offers information to civil litigants proceeding 10 The pro se. 11 IV. Conclusion 12 For the reasons stated above, Defendant’s Motion to Dismiss is 13 GRANTED. 14 Any second amended complaint shall be filed within thirty days of 15 the date of this order. The Amended Complaint is DISMISSED, with leave to amend. 16 17 18 19 20 21 IT IS SO ORDERED. 22 23 Dated: October 6, 2014 DEAD D. PREGERSON 24 United States District Judge 25 26 27 28 6
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