United States District Court, W.D. Washington, Seattle
ORDER OF DISMISSAL
J. PECHMAN UNITED STATES SENIOR DISTRICT JUDGE
Court, having received and reviewed Plaintiff's Amended
Complaint (Dkt. No. 8), enters the following order:
ORDERED that Plaintiff's complaint is DISMISSED with
12, 2019, the Court entered an Order Denying Motion to
Appoint Counsel, Declining to Serve and Granting Leave to
Amend. Dkt. No. 7. The Court identified two areas of concern
in Plaintiff's original complaint that he was ordered to
address by way of amendment or face possible dismissal of his
action: (1) There was no logical or apparent connection
between his complaint of the repeated use of the nickname
“D-Train” by the chef and general manager at his
job and his allegations of discrimination on the basis of
national origin; and (2) there was nothing in his pleading to
establish a connection between the defendant Spain Street LLC
and his former employer, the Steelhead Diner. Id. at
2-3. Plaintiff was given 30 days to file an amended complaint
addressing these deficiencies (Id. at 3) and on June
27, 2019 he filed an amended complaint. Dkt. No. 8.
complaint is filed in forma pauperis, the Court must
dismiss it prior to service if it “fails to state a
claim on which relief can be granted.” 28 U.S.C. §
1915(e)(2)(b)(ii). To avoid dismissal, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face. Ashcroft
v. Iqbal, 556 U.S. 662, 664 (2009). The factual
allegations must be “enough to raise a right to relief
above the speculative level.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). The complaint may
be dismissed if it lacks a cognizable legal theory or states
insufficient facts to support a cognizable legal theory.
Zixiang v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).
Court holds pro se plaintiffs to less stringent
pleading standards than represented plaintiffs and liberally
construes a pro se complaint in the light most
favorable to the plaintiff. Erickson v. Pardus, 551
U.S. 89, 93 (2007). Nevertheless, § 1915(e) “not
only permits but requires a district court to dismiss an in
forma pauperis complaint that fails to state a claim.”
Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000)
(en banc). When dismissing a complaint under § 1915(e),
the Court gives pro se plaintiffs leave to amend
unless “it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment.”
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
Court pointed out with some specificity the major defect in
Plaintiff's original pleading - namely, his failure to
establish a connection between the repeated use of the
nickname “D-Train” and his claim that he had been
subjected to discrimination on the basis of his national
origin (Russian). In response, Plaintiff merely repeated the
allegation in his amended complaint and attached a
“personal statement” in which he explained:
The defense position lies in the fact that they used D-train
word instead of my original name Dmitry, although the
plaintiff repeatedly asked them to stop calling him that. In
slang, D-train could have absolutely different meanings.
D-train could mean (both some offensive words) and the person
(who is large in size). Based on the abovementioned, it may
be concluded that (Anthony Pollizi) and (Brian Proksh)
experienced personal enmity toward the plaintiff due to his
national feature (because he is Russian).
Dkt. No. 8, Amended Complaint at 7.
fact that Plaintiff may have found a nickname offensive and
unsuccessfully requested his co-workers to stop using it is
unfortunate and may even have made his work environment
uncomfortable and unpleasant, but it does not establish that
the conduct of which he complains was the product of ethnic
animosity. There is nothing about the phrase
“D-Train” that bears the slightest connection to
Plaintiff's Russian heritage or can in any sense be
viewed as an ethnic slur. Without some logical connection to
evidence of ethnic bias, it is simply a name that Plaintiff
did not like and that his co-workers would not stop using.
This is not the basis for a federal lawsuit.
has been given an opportunity, and failed, to amend his
complaint to state a legitimate claim for relief in federal
court. It is apparent that further amendment of this
complaint would be futile, ...