De La Cruz v. Mi Nidito Restaurant Incorporated

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Maria De La Cruz,
Plaintiff,
v.
Mi Nidito Restaurant Incorporated,
Defendant.
No. CV-26-00205-TUC-JR
REPORT & RECOMMENDATION
Plaintiff Maria De La Cruz has filed a Complaint (Doc. 1) and an Application to
Proceed In District Court without Prepaying Fees and Costs (“Application”) (Doc. 2).
General Order 21-25 directs this Court to prepare a Report and Recommendation to
the appropriate designee in either Tucson or Phoenix/Prescott. Accordingly, this Court
directs this Report and Recommendation to United States District Judge Raner C. Collins.
As more fully set forth below, this Court recommends that the district court grant the
Plaintiff’s Application and dismiss the Complaint with leave to amend.
I. Application to Proceed In Forma Pauperis
In her Application, Plaintiff indicates that she has insufficient funds to pay the filing
fee for this action. (Doc. 2.) Upon review, the Court agrees and recommends that the district
court exercise its discretion and grant Plaintiff in forma pauperis (IFP) status.
II. Statutory Screening of In Forma Pauperis Complaints
Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted
in forma pauperis status, the district court shall dismiss the case “if the court determines
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that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
relief maybe granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.” Therefore, the district court must dismiss an in forma pauperis complaint if it
fails to state a claim or if it is frivolous or malicious. Kennedy v. Andrews, 2005 WL
3358205, *2 (D. Ariz. 2005.)
TO state a claim, a pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added).
While 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 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.’” Id.
(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. Thus, although a plaintiff’s specific factual allegations may be
consistent with a constitutional claim, a court must assess whether there are other “more
likely explanations” for a defendant’s conduct. Id. at 681.
III. Improper Service of Unscreened Complaint
As explained above, when a plaintiff files a complaint where in forma pauperis
status has been granted, the Court must screen the complaint prior to service. See 28 U.S.C.
1915(e)(2). On April 22, 2026, Plaintiff improperly served the Defendant with the
unscreened complaint. (See Doc. 7.) This is improper.
Further, upon review of the summons used by Plaintiff to improperly serve the
Defendant, the summons itself is deficient for various reasons. First, Rule 4 of the Federal
Rules of Civil Procedure requires, in part, a summons “be signed by the clerk; and bear the
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court’s seal.” Fed. R. Civ. P. 4(1)(D)(E). Rule 4 describes the proper procedure for
obtaining the Court’s signature and seal:
On or after filing the complaint, the plaintiff may present a
summons to the clerk for signature and seal. If the summons is
properly completed, the clerk must sign, seal, and issue it to the
plaintiff for service on the defendant. A summons—or a copy
of a summons that is addressed to multiple defendants—must
be issued for each defendant to be served.
Fed. R. Civ. P. 4(2). Here, the Plaintiff has served the Defendant with a summons neither
contains the signature of the Clerk, nor the seal of the Court. (See Doc. 7.) This is improper.
Next, the summons is signed by an individual named “Ramiro S. Flores.” (Doc. 7)
Ramiro S. Flores is not the counsel of record for Plaintiff, nor has he appeared in this action.
This is improper.
Finally, because Plaintiff is appearing in forma pauperis, 28 U.S.C. § 1915 and Rule
4(c)(3) of the Federal Rules of Civil Procedure require that the screened complaint be
served on the Defendant by a United States marshal or deputy marshal. The Plaintiff
serving the complaint herself, and not in accordance with statute or the rules, is also
improper.1
Accordingly, Defendant need not respond to Plaintiff’s improperly served
unscreened complaint. Plaintiff is further warned that the continued failure to follow court
rules and procedures will ultimately result in sanctions, including but not limited to the
dismissal of this action with prejudice. See Fed. R. Civ. P. 41(b).
IV. The Complaint
Plaintiff brings the immediate action under Title VII of the Civil Rights act of 1964
(“Title VII”), Title I of the Americans with Disabilities Act of 1990 (“ADA”), and the Age
Discrimination in Employment Act of 1967 (“ADEA”) for discrimination, hostile work
environment, failure to accommodate, and retaliation in violation of federal law against
Defendant Mi Nidito Restaurant Inc. (hereafter “Defendant” or “Mi Nidito”). (Doc. 1 at 1-
1 Alternatively, since the Plaintiff has shown she has resources to serve the defendant
without assistance, the district court may, in its discretion, deny Plaintiff IFP status and
order her to pay the filing fee.
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2.) Plaintiff alleges the Court has original jurisdiction over the Complaint as her claims
arise under federal law. (Id. at 1.) Plaintiff alleges venue is proper because the events
giving rise to the underlying claims occurred in Tucson, Arizona and Defendant conducts
business in the district. (Id.) Plaintiff alleges her claims are administratively exhausted. (Id.
at 2.) Plaintiff alleges that she filed a charge of discrimination with the United States Equal
Employment Opportunity Commission (“EEOC”) and the Arizona Division of Civil
Rights. (Id.)
Plaintiff alleges that she began working for the Defendant in or around 1976 as a
sous chef and was promoted in 1980 to sous chef manager. (Id., ¶ 8.) During her
employment with Defendant, she was diagnosed with a disability.2 (Id., ¶ 9) The
Defendant’s former owners agreed to accommodate her disability by providing assistants.
(Id.) In or around April 2024, Edgar Gonzalez became the owner of Defendant and became
Plaintiff’s supervisor. (Id., ¶¶ 10, 11.) Plaintiff informed Gonzalez of her disability and the
accommodation that was in place. (Id., ¶¶ 11.) Gonzalez acknowledge Plaintiff’s request
and assured her that he would continue to provide her accommodations. (Id., ¶ 12.)
From June 2024 through the end of her employment, Plaintiff alleges that Gonzalez
subjected her to different terms and conditions of employment and subjected her to a hostile
work environment including: mocking her, making disparaging jokes about her disability,
using homophobic slurs, and referring to her as being one of the males. (Id., ¶¶ 13, 14.)
Plaintiff alleges that Gonzalez did not subject other, younger, non-disabled, males,
heterosexual employees to the same hostility or disparagement. (Id., ¶ 18.)
At some point, Plaintiff alleges that Gonzalez revoked her accommodations, and
when confronted by Plaintiff about it “yelled at her in a disrespectful manner, often using
profanity.” (Id., ¶¶ 16, 17.) On or about October 23, 2024, Gonzalez fired Plaintiff. (Id., ¶
19.) Plaintiff alleges that she was replaced by a younger employee. (Id., ¶ 15.)
Plaintiff was 65 years old at all relevant times. (Id., ¶ 21.) Plaintiff alleges that
Gonzalez terminated her because of her age and disability, as well as in retaliation for
2 Plaintiff does not allege what disability she was diagnosed with.
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requesting reasonable accommodation. (Id., ¶ 20.) Plaintiff further alleges that but for her
age, disability, sex, and engaging in protected activity,3 Defendant would not have
subjected her to different terms and conditions of employment and a hostile and
intimidating work environment, removed her accommodation, retaliated against her, or
terminated her employment. (Id., ¶ 22.)
Plaintiff brings four claims against Defendant. (Id. at 3, 4.) In Count I, Plaintiff
brings an ADA claim alleging disability discrimination, failure to accommodate, and
hostile work environment. (Id., ¶¶ 22, 23.) In Count II, Plaintiff brings a retaliation claim
under both the ADA and Title VII. (Id., ¶¶ 25, 26.) In Count III, Plaintiff brings an age
discrimination claim under ADEA. (Id., ¶¶ 27, 28.) In Count IV, Plaintiff brings a sex
discrimination and hostile work environment claim under Title VII. (Id., ¶¶ 29, 30.)
V. Analysis
Prior to commencing a Title VII, ADA, or ADEA action in federal court, a claimant
must file a charge of discrimination with the EEOC or proper state agency. Nelmida v.
Shelly Eurocars, Inc. 112 F.3d 380, 383 (9th Cir.1996) (Title VII and ADA); Bond v. Wells
Fargo Bank, NA, 782 F.Supp.3d 743, 753 (D. Ariz. 2025) (Title VII and ADEA). If the
EEOC declines to pursue the charge on the claimant's behalf within one-hundred eighty
days of the filing of the charge, the EEOC will issue a right-to-sue letter. Upon issuance of
the right-to-sue letter, claimant has ninety days to file a civil action in court. Nelmida, 112
F.3d at 383; 42 U.S.C. § 2000e5(f)(1) (Title VII claims); 42 U.S.C. § 12117(a) (ADA
claims); 29 U.S.C. § 626(e) (ADEA claims). This ninety-day period “acts as a statute of
limitations,” which is “subject to waiver as well as equitable tolling.” Jones v. Wal-Mart
Stores, Inc., 2007 WL 2808562, at *2 (citing Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 398 (1982)).
Here, attached to complaint is a copy of the Plaintiff’s “Right to Sue” Letter from
the EEOC. (Doc. 1 at 5.) The letter indicates the parties of the that complaint as: “Maria
De La Cruz v. El Indio Restaurante Inc.” (Id.) Nowhere on the letter is the Defendant
3 Plaintiff does not allege what protected activity she engaged in under Title VII.
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named, nor is El Indio Restaurante Inc. named as a party in the immediate lawsuit. (See
id.) This conflicts with Plaintiff’s factual allegations and undermines her contention that
this lawsuit is timely or that she adequately exhausted her administrative remedies. Stewart
v. Rock Tenn CP, LLC, 2015 WL 1883910, *10 (D. Or. Apr. 24, 2015). While Plaintiff
alleges that she also filed a complaint with the Arizona Civil Rights Division, she did not
allege when such complaint was filed. (See Doc. 1 at 2.) Therefore, Plaintiff has not pleaded
sufficient facts to establish the timeliness of her federal claims, and as such, has failed to
state a claim. Accordingly, the undersigned recommends the district court dismiss the
complaint without prejudice.
RECOMMENDATION
As noted, supra, General Order 21-25 directs this Court to prepare a Report and
Recommendation to the appropriate designee in either Tucson or Phoenix/Prescott and this
Court directs this Report and Recommendation to the Honorable Raner C. Collins.
Accordingly, the undersigned RECOMMENDS the district judge, after
independent review, enter an order ADOPTING this Report and Recommendation, and
DISMISSING Plaintiff’s Complaint (Doc. 1) for failure to state a claim without prejudice.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, any party may serve and file written objections within fourteen (14) days after
being served with a copy of this Report and Recommendation. A party may respond to
another party’s objections within fourteen (14) days after being served with a copy. Fed.
R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from Judge Collins.
Failure to file timely objections to any factual or legal determination of the Magistrate
Judge may result in waiver of the right of review.
//
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IT IS FURTHER ORDERED DIRECTING the Clerk of Court to refer this matter
to the Honorable Raner C. Collins pursuant to General Order 21-25.
Dated this 5th day of May, 2026.
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