Phoenixx v. Mecklenburg

• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)
• Decision Date: 28 September 2021
• Docket Number: Civ. 21-00302 LEK-RT
• Parties: JON-ERIC PHOENIXX, Plaintiff, v. DAVID MECKLENBURG, OWNER, BEACH BUMS BBQ BAR & GRILL, Defendant.

JON-ERIC PHOENIXX, Plaintiff,
v.
DAVID MECKLENBURG, OWNER, BEACH BUMS BBQ BAR & GRILL, Defendant.

Civ. No. 21-00302 LEK-RT

United States District Court, D. Hawaii

September 28, 2021

FINDINGS AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

Rom A. Trader United States Magistrate Judge

Before the Court is Plaintiff Jon-Eric Phoenixx's Application to Proceed in District Court without Prepaying Fees or Costs (“Application”), filed on July 9, 2021. ECF No. 2. Pursuant to Rule 7.1(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii, the Application shall be decided without a hearing.

After careful review of the IFP Application, Complaint, and applicable law, the Court finds that the Application should be DENIED as moot. First, Plaintiff failed to exhaust administrative remedies prior to filing the Complaint. Second, Plaintiff's Complaint fails to state a claim on which relief may be granted. Accordingly, the Complaint should be dismissed without prejudice and because

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there would be no operative Complaint, the Application should be DENIED as moot.

BACKGROUND

Plaintiff filed an Employment Discrimination Complaint on July 9, 2021. ECF No. 1. The Complaint states that Plaintiff's action is brought pursuant to Title VII of the Civil Rights Act of 1964 for employment discrimination based on race or color. Plaintiff alleges that on January 28, 2018, he and Taffany Noribralb, an employee of Beach Bums BBQ Bar & Grill (“Beach Bums BBQ”), argued while working a catering project. The argument appears to be about the presentation of food. Plaintiff also alleges that “[s]ome of the Marshalese [sic] line cooks, [sic] would try & pick a fight with me on the [sic] & call me the “N” word & pick on me about my race.” Id. at PageID #: 3. Plaintiff also alleges that he was assaulted on the job, but does not state who assaulted him nor does he explain why he believes he was assaulted based on his race. Plaintiff claims that the owner of Beach Bums BBQ told him that Plaintiff would be provided with worker's compensation and told Plaintiff to lie to the doctors. Plaintiff also alleges that Dave Mecklenburg and Daniel Kirkpatrick told Plaintiff that Plaintiff “was no good & my work in their terms was ‘shit!'” Id.

On July 9, 2021, Plaintiff filed the instant Application. ECF No. 3. Plaintiff states that Plaintiff's gross wages are $14.00 per hour and take-home wages are $400.00 to $500.00 every two weeks. Plaintiff claims that Plaintiff does

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not receive income from any additional source and only has $10.64 in a checking or savings account. Plaintiff claims he does not own any assets and has no monthly expenses or debt.

DISCUSSION

The Court shall liberally construe Plaintiff's pleading as Plaintiff is appearing pro se. Edridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). Courts must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims that are frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune to such relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).

A. Plaintiff Failed to Exhaust Administrative Remedies

“Title VII contains several distinct filing requirements which a claimant must comply with in bringing a civil action.” Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir. 1986), opinion amended on denial of reh'g, 815 F.2d 570 (9th Cir. 1987). “It is well established that before an aggrieved employee may file a lawsuit asserting employment...