Lopez v. Compa Indus.

1

SAMUEL RENE LOPEZ, Plaintiff, v. COMPA INDUSTRIES INC., STRATIFY LLC, EDNA LOUISA LOPEZ, DANIEL ANTHONY JENSEN LOPEZ, KAREN MONTY, BRYANT BINGHAM, ASHLEY CHENOT, ALLEGRA HANSON, and ARMANDO RENE LOPEZ, Defendants.

No. 1:23-cv-00303-LF

United States District Court, D. New Mexico

April 17, 2023

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND ORDER TO SHOW CAUSE AND FOR AMENDED COMPLAINT

The Honorable Laura Fashing United States Magistrate Judge

THIS MATTER comes before the Court on pro se Plaintiff's Complaint for Employment Discrimination, Doc 1, filed April 7, 2023 (“Complaint”), and Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed April 7, 2023.

Application to Proceed in forma pauperis

The statute for proceedings in forma pauperis, 28 U.S.C § 1915(a), provides that the Court may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees.

When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis] was intended for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de Nemours &amp Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at 339.

The Court grants Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these proceedings and provided the following information: (i) Plaintiff's average monthly income amount during the past 12 months is $0.00; (ii) Plaintiff's monthly expenses total $2,730.00; and (iii) Plaintiff has $80.00 in cash and $266.00 in bank accounts. The Court finds that Plaintiff is unable to pay the costs of this proceeding because he signed an affidavit stating he is unable to pay the costs of this proceeding and because he has no income.

The Complaint

Plaintiff asserts claims pursuant to Title VII of the Civil Rights Act of 1964 for race, religion and national origin discrimination, for disability discrimination pursuant to the Americans with Disabilities Act of 1990 (“ADA”), for retaliation, for violation of federal statutes including criminal statutes, and for state-law torts. Those claims arise from events occurring from 1985 through 2023. See Complaint at 9-33.

Defendant Designations and Exhibits

Throughout the 37-page Complaint, Plaintiff refers to Defendants by number instead of by their name. See, for example, Complaint at 9 (referring to “Defendant no[.] 9” and “Defendant no. 3”). The Court is ordering Plaintiff to file an amended complaint. The amended complaint must refer to each Defendant by their name and not by a number.

Plaintiff attached numerous pages of exhibits to his Complaint including a “Charge of Discrimination.” See Complaint at 42. The Court will not review the exhibits to determine whether Plaintiff has claims against Defendants. See Biogenics, Inc. v. Kazen, 6 Fed.Appx. 689, 692 (10th Cir. 2001) (“Despite the liberal construction afforded pro se litigants, the court will not construct arguments or theories for a pro se litigant”).

Statute of Limitations

It appears that many of Plaintiff's state-law claims are barred by the statutes of limitations because they are based on conduct that occurred prior to April 2020. See N.M. Stat. Ann. § 37-18 (“Actions must be brought . . . for an injury to the person or reputation of any person, within three years”). The Complaint does not contain factual allegations showing that Plaintiff timely filed his discrimination charges pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the ADA. See 42 U.S.C. § 2000e-5 (discussing time for filing charges for unlawful employment practices pursuant to Title VII); 42 U.S.C. § 2000e-5 (Title I of the ADA expressly adopts the statutory remedies scheme of Title VII).

The Court orders Plaintiff to show cause why those claims should not be dismissed as barred by the statutes of limitations.

Discrimination and Retaliation Claims

Plaintiff asserts discrimination and retaliation claims based on his race, religion, national origin and disability. See Complaint at 4. The Complaint fails to state discrimination and retaliation claims because there are no allegations that Plaintiff is a member of a protected class or is disabled within the meaning of the Americans with Disabilities Act, that he suffered an adverse employment action under circumstances giving rise to an inference of racial, religious or national origin discrimination or because of his disability, or that he engaged in protected opposition to discrimination and a causal connection existed between the protected activity and the adverse action. See Bennett v. Windstream Communications, Inc., 792 F.3d 1261, 1266 (10th Cir. 2018) (to state a claim for employment discrimination a plaintiff must show “is a member of a protected class, [he] suffered an adverse employment action, and the challenged action occurred under circumstances giving rise to an inference of discrimination”); Edmonds-Radford v. Southwest Airlines Co., 17 F.4th 975, 989-990 (10th Cir. 2021) (to state a prima facie case for discrimination under the Americans with Disabilities Act, a plaintiff must show: “(1) she is disabled within the meaning of the ADA, (2) she is qualified to perform the essential functions of the job with or without accommodation, and (3) she suffered an adverse employment action because of her disability”); Parker Excavating, Inc. v. Lafarge West, Inc., 863 F.3d 1213, 1220 (10th Cir. 2017) (to state a prima facie case of retaliation, a plaintiff must show that: “(1) [he] engaged in opposition to racial discrimination that is protected under the statute; (2) a reasonable person would have found the challenged action materially adverse; and (3) a causal connection existed between the protected activity and the adverse action”).

RICO

Plaintiff asserts a racketeering claim pursuant to 18 U.S.C. § 1961 which provides definitions used in Chapter 96-Racketeer Influenced and Corrupt Organizations. See Complaint at 8. Because Plaintiff is proceeding pro se, the Court liberally construes his Complaint as asserting a civil RICO claim pursuant to 18 U.S.C. § 1964(c) which provides that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter [describing prohibited activities related to racketeering activity] may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains.” 18 U.S.C. § 1964(c).

To plead a valid RICO claim, a plaintiff must plausibly allege that a defendant “(1) conducted the affairs (2) of an enterprise (3) through a pattern (4) of racketeering activity.” George v. Urb. Settlement Servs., 833 F.3d 1242, 1248 (10th Cir. 2016). “Racketeering activity” consists of the criminal offenses listed in 18 U.S.C. § 1961(1), and a “pattern” requires at least two racketeering acts committed within ten years of each other. 18 U.S.C. § 1961(5).

Johnson v. Heath, 56 F.4th 851, 858-859 (10th Cir. 2022).

The Complaint fails to state a civil RICO claim. The Complaint contains conclusory allegations that Defendants “operated ... with racketeering activities,” “used coercion and intimidation,” used “fraud, defamation, extortion, intimidation, harassment, discrimination, wrongful termination, and larceny to extract wealth in conjunction with their positions of power” and “are in violation of 18 U.S.C. § 1962(b).” Complaint at 34-35. “[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Plaintiff does not clearly identify which racketeering activities listed in 18 U.S.C. § 1961(1) and which prohibited activities listed in 18 U.S.C. § 1962 Defendants allegedly committed. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (A complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests"). Plaintiff also does not allege that Defendants committed at least two racketeering acts within 10 years of each other or that Defendants' actions caused injury to Plaintiff's business or property. See Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 885 (10th Cir. 2017) (“Section 1964(c)'s reference to injury to ‘business or property' ... cabin[s] RICO's private cause of action to particular kinds of injury-excluding, for example, personal injuries”).

Criminal Statutes

Plaintiff asserts claims pursuant to the following statutes:

(i) 18 U.S.C. § 241, Conspiracy against rights;

(ii) 18 U.S.C. § 351, Congressional, Cabinet, and Supreme Court assassination, kidnapping, and assault;

(iii) 18 U.S.C. § 873, Blackmail;

(iv) 18 U.S.C. § 1001, [false, fictitious or fraudulent] Statements or entries generally;

(v) 10 U.S.C. § 921.121, Larceny and wrongful appropriation [Uniform Code of

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