Opinion
No. CV 05-2928-PHX-MHM.
July 6, 2006
ORDER
Currently before the Court is Plaintiff Martha Bonelli's ("Plaintiff") amended application to proceed in forma pauperis. (Dkt.#4). On November 3, 2005, this Court, after dismissing Plaintiff's complaint without prejudice with leave to amend, held in abeyance its ruling on Plaintiff's request to proceed in forma pauperis until it had an opportunity to review Plaintiff's amended complaint. (Dkt.#5). On December 5, 2005, Plaintiff filed the instant Amended Complaint. (Dkt.#6). Plaintiff's request to proceed in forma pauperis requires the Court to screen Plaintiff's Amended Complaint. See 28 U.S.C. §§ 1915(e)(B)(i), (ii). In screening the Amended Complaint, the Court must dismiss the complaint at any time if it is "frivolous or malicious" or if it fails to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii). Furthermore, the Court has a duty to ensure that it has subject matter jurisdiction over all cases before it. See generally Valdez v. Allstate, 372 F.3d 1115, 1116 (9th Cir. 2004).
The Court previously dismissed Plaintiff's original complaint asserting claims of sexual discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, because of Plaintiff's failure to demonstrate that Plaintiff had exhausted all administrative remedies before filing suit in federal court. (Dkt.#5). Additionally, Plaintiff failed to demonstrate any basis for equitable tolling. (Id.). In reviewing Plaintiff's Amended Complaint, Plaintiff demonstrates that she did in fact exhaust the requisite administrative procedures by filing a charge with the Arizona Civil Rights Division on November 5, 2004. (Plaintiff's Amended Complaint, Exhibit C). Additionally, on February 11, 2005, the office of the Attorney General mailed to Plaintiff the requisite "Notice of Right to Sue" letter. (Id. at Exhibit B). The Right to Sue letter expressly directed Plaintiff that should she decide to file suit, she was required to do so " within 90 days of the date [she] receive[d] this Notice or within one year of the date [she] filed the charge, whichever comes first. (Emphasis original). As such, Plaintiff was required to assert the original complaint within 90 days of the date she received the "Right to Sue" letter. However, rather than comply with the deadline, Plaintiff did not act until approximately seven months after the letter was mailed with the filing of her original complaint on September 23, 2005. (Dkt.#1). As such, it is clear that Plaintiff's Amended Complaint before this Court is flawed as Plaintiff's action is time barred. See Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996) (stating that when the EEOC dismisses a claim, it must notify the claimant and inform him that he has 90 days to bring a civil action. See also Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir.), cert. denied, 506 U.S. 868, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992) (stating that if the claimant does not file within this 90-day period, the action is barred). Moreover, Plaintiff makes no reference to the application of equitable tolling in her amended complaint. See Johnson v. United States, Treas. Dep't, 27 F.3d 415, 416 (9th Cir. 1994) (per curiam) (entering summary judgment against plaintiff based upon timeliness where plaintiff made no argument in support of application of equitable tolling). As such, it is clear that Plaintiff's action is barred as she slept on her rights past the applicable filing period with this Court. Moreover, because of the untimely nature of Plaintiff's action, any amendment of Plaintiff's Amended Complaint would be futile. See Thinkjet Ink Information Resources, Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (noting that dismissal without leave to amend is proper where complaint could not be saved by amendment).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Amended Complaint and this action are dismissed without prejudice and without leave to amend.
IT IS FURTHER ORDERED that in light of the Court's above ruling, Plaintiff's application to proceed in forma pauperis is denied as moot. (Dkt.#4).