Espinoza v. Fry's Food Stores et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Christina Espinoza,
Plaintiff,
v.
Fry's Food Stores, et al.,
Defendants.
No. CV-25-04286-PHX-DWL
ORDER
The Court will screen the complaint (Doc. 1) pursuant to 28 U.S.C. § 1915(e)(2)1
before it is allowed to be served. Pursuant to that screening, Alicia Kindler, Matt Kale,
Claudia Pena, Jimmie L. Brown, and Larissa Castro are dismissed.
I. Legal Standard
Under 28 U.S.C. § 1915(e)(2), a complaint is subject to dismissal if it contains
claims that are “frivolous or malicious,” that “fail[] to state a claim upon which relief
may be granted,” or that “seek[] monetary relief against a defendant who is immune from
such relief.” Id. Additionally, under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Id. Although Rule 8 does not demand detailed factual allegations, “it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of
1 Although section 1915 largely concerns prisoner litigation, section 1915(e) applies
to all in forma pauperis proceedings. 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.”).
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action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 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.” Id. “Determining whether a complaint
states a plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
The Ninth Circuit has instructed that courts must “construe pro se filings
liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a
pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Conclusory and vague allegations, however, will not support a cause of action. Ivey v.
Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A liberal
interpretation may not supply essential elements of the claim that were not initially pled.
Id.
II. Analysis
The complaint asserts claims of employment discrimination and retaliation under
Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with
Disabilities Act of 1990 (“ADA”) against Plaintiff’s former employer, Fry’s Food Store,
and several of its managers and employees. However, the individual managers and
employees are not liable under Title VII or the ADA. Ruggles v. State, 2025 WL
1745023, *9 (D. Ariz. 2025) (“[T]he Ninth Circuit has long held that Title VII does not
provide a separate cause of action against supervisors or co-workers.”) (cleaned up); Pink
v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir.1998) (“[C]ivil
liability for employment discrimination does not extend to individual agents of the
employer who committed the violations, even if that agent is a supervisory employee.”);
Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006)
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(“[I]ndividual defendants cannot be held personally liable for violations of the ADA”).
Therefore, these defendants are dismissed.
As for Fry’s Food Store, the complaint is “sufficient to meet the low threshold for
proceeding past the screening stage.” Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.
2012).2
Plaintiff is indigent and is entitled to have the Court “issue and serve all process”
at Plaintiff’s request. See 28 U.S.C. § 1915(d); see also Fed. R. Civ. P. 4(c)(3) (service
of process available “[a]t the plaintiff’s request”); Boudette v. Barnette, 923 F.2d 754,
756-57 (9th Cir. 1991) (confronting “an inconsistency” between Rule 4 and § 1915 and
concluding that “[a]n IFP plaintiff must request that the marshal serve his complaint
before the marshal will be responsible for such service”). The Court will not require that
a request for service be made via a separate motion. Rather, the Clerk of Court shall send
Plaintiff a service packet, and Plaintiff’s prompt return of the service packet will be
construed as a request for service to be made by a U.S. Marshal pursuant to Rule 4(c)(3).
That request will be honored without the need for another order from the Court.
Accordingly,
IT IS ORDERED that Alicia Kindler, Matt Kale, Claudia Pena, Jimmie L.
Brown, and Larissa Castro are dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall send Plaintiff a
service packet including the complaint (Doc. 1), this order, and both summons and
request for waiver forms.
IT IS FURTHER ORDERED that if Plaintiff does not complete and return the
service packet to the Clerk of Court within 30 days of the date of filing of this Order (and
does not personally obtain a waiver of service or complete service), the action may be
dismissed. Fed. R. Civ. P. 4(m).
IT IS FURTHER ORDERED that if Plaintiff completes and returns the service
2 “[T]he sua sponte screening and dismissal procedure is cumulative of, not a
substitute for, any subsequent Rule 12(b)(6) motion that [a] defendant may choose to
bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007).
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packet to the Clerk of Court within 30 days of the date of filing of this Order, the U.S.
Marshal shall send to Defendant Fry’s Food Store a request for waiver pursuant to Rule
4(d)(1). If Fry’s Food Store does not waive service, the U.S. Marshal shall effectuate
service. The Court may impose expenses incurred in making service on Fry’s Food Store
pursuant to Rule 4(d)(2).
IT IS FURTHER ORDERED that a defendant who agrees to waive service of
the summons and complaint must return the signed waiver forms to the United States
Marshal, not the Plaintiff.
Dated this 3rd day of December, 2025.
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