United States District Court, W.D. Washington, Tacoma
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITHOUT
PREJUDICE, GRANTING PLAINTIFF LEAVE TO AMEND, AND RENOTING
PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS
W. Christel United States Magistrate Judge
Alisha Silbaugh, proceeding pro se, filed this
action pursuant to the Americans with Disabilities Act
(“ADA”). See Dkt. 1-1. The District
Court has referred Plaintiff's pending Application to
Proceed In Forma Pauperis (“IFP”) and
Proposed Complaint to United States Magistrate Judge David W.
Christel pursuant to Amended General Order 02-19.
reviewed and screened Plaintiff's Proposed Complaint
under 28 U.S.C. § 1915(e)(2), the Court finds Plaintiff
has failed to state a claim. The Court dismisses
Plaintiff's Proposed Complaint without prejudice,
re-notes the pending Application to Proceed IFP, and provides
Plaintiff leave to file an amended pleading by August 15,
2019, to cure the deficiencies identified herein.
alleges that she filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) for sexual
harassment, retaliation, and a failure to accommodate her
disability based on acts that occurred while she was employed
at the Department of Veterans Affairs (“VA”)
during 2013 and 2014. Dkt. 1-1, pp. 2-3. Plaintiff claims
that in “March 2017, the parties entered into a
settlement agreement and on March 6, 2017, ” and as
such, Plaintiff “withdrew” her EEOC complaint.
Id. at p. 3. Plaintiff, though unclear, asserts that
on August 17, 2017, the VA “issued a decision
voiding” the settlement agreement because the agreement
was not in writing. Id. Plaintiff appears to allege
she “appeal[ed]” the VA's decision to the
EEOC, which found the VA “properly determined”
the unwritten settlement agreement lacked consideration.
Id. Thereafter, Plaintiff alleges the EEOC remanded
the matter to the VA, which issued Plaintiff a notice of her
right to file a complaint. Id. Further, Plaintiff
asserts that, around November 2018, she was awarded
“‘permanent and total' disability at the 100%
compensated rate” based on the EEOC complaint.
Id. at p. 2.
alleges these acts violated her rights under the ADA. Dkt.
1-1, p. 2. Specifically, Plaintiff states she is suing for
“discriminatory conduct” under the ADA for
“failure to accommodate” a disability;
“[u]nequal terms and conditions” of her
employment; “[r]etaliation”; and “[b]reach
of contract to settle[.]” Id. The only
defendant in Plaintiff's Proposed Complaint is Janet
Dhillon, Chair of the EEOC. See Id. at p. 1.
district court may permit indigent litigants to proceed IFP
upon completion of a proper affidavit of indigency.
See 28 U.S.C. § 1915(a). However, the
“privilege of pleading in forma pauperis . . .
in civil actions for damages should be allowed only in
exceptional circumstances.” Wilborn v.
Escalderon, 789 F.2d 1328 (9th Cir. 1986). The Court has
broad discretion in denying an application to proceed IFP.
Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963),
cert. denied 375 U.S. 845 (1963).
IFP status, the Court must subject each civil action
commenced pursuant to 28 U.S.C. § 1915(a) to mandatory
screening and order the sua sponte dismissal of any
case that is “frivolous or malicious, ”
“fails to state a claim on which relief may be granted,
” or “seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d
845, 845 (9th Cir. 2001) (“[T]he provisions of 28
U.S.C. § 1915(e)(2)(B) are not limited to
prisoners.”); Lopez v. Smith, 203 F.3d 1122,
1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C.
§ 1915(e) “not only permits but requires”
the court to sua sponte dismiss an IFP complaint
that fails to state a claim). An in IFP complaint is
frivolous if “it ha[s] no arguable substance in law or
fact.” Tripati v. First Nat'l Bank &
Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citing
Rizzo v. Dawson, 778 F.2d 527, 529 (9th Cir. 1985);
see also Franklin v. Murphy, 745 F.2d 1221, 1228
(9th Cir. 1984).
pro se plaintiff's complaint is to be construed
liberally, but like any other complaint it must nevertheless
contain factual assertions sufficient to support a facially
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678, (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim for relief
is facially plausible when “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
it is clear a pro se plaintiff cannot cure the
deficiencies of a complaint, the Court will provide the
pro se plaintiff with an opportunity to amend the
complaint to state a plausible claim. See United States
v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.
2011) (“Dismissal without leave to amend is improper
unless it is clear, upon de novo review, that the complaint
could not be saved by any amendment.”).
Plaintiff's Proposed Complaint suffers from deficiencies
requiring dismissal if not corrected in an amended complaint.
As stated above, the Court is required to liberally construe
pro se documents. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). However, Federal Rule of Civil
Procedure 8 requires a complaint to contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). “Each
allegation must be simple, concise, and direct.”
initial matter, the Court notes that although Plaintiff
states she is suing under the ADA related to her former
employment with the VA, “[t]he Rehabilitation Act
provides the exclusive remedy for federal employees alleging
disability discrimination[.]” See Bukiri v.
Lynch, 648 Fed.Appx. 729, 731 (9th Cir. 2016); see
also Candelaria v. United States, 2014 WL 4352111, at *2
(W.D. Wash. Sept. 2, 2014) (citing Johnston v.
Horne, 875 F.2d 1415, 1420 (9th Cir. 1989)) (“the
Rehabilitation Act provides the exclusive remedy for
employment discrimination claims based on disability”
for federal employees). As Plaintiff brings disability
discrimination claims related to her former status as a
federal employee, she cannot bring these claims under the
ADA. See, e.g., Villaflor v. U.S. Postal
Service, 2017 WL 2903213, at *2 (W.D. Wash. July 7,
2017) (dismissing an ADA claim “because the ADA does
not apply to federal employers”); see also
Bukiri, 648 Fed.Appx. at 731; Johnston, 875
F.2d at 1420.
though Plaintiff's Proposed Complaint is short, it does
not contain a plain statement showing she is entitled to
relief. In the Proposed Complaint, Plaintiff describes
various facts about a settlement agreement with the VA and an
EEOC complaint. While Plaintiff broadly asserts the
settlement agreement was “breach[ed], ” her
allegations are disjointed and do not explain who breached
the agreement or how it was breached. See Dkt. 1-1,
pp. 2-3. Plaintiff likewise provides no factual allegations
supporting her claims of “discriminatory
conduct.” For example, ...