Hadley v. Holbrook, City of et al

Filing 16

ORDER granting Defendants' 7 Motion to Dismiss with prejudice. Signed by Judge Frederick J Martone on 9/25/2012.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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City of Holbrook; Holbrook Police)
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Department,
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Defendants.
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Benjamin N. Hadley,
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No. CV 12-08134-PCT-FJM
ORDER

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The court has before it defendants' motion to dismiss (doc. 7), plaintiff's response

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(doc. 12), and defendants' reply (doc. 15). Defendants move to dismiss pursuant to Rule

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12(b)(6), Fed. R. Civ. P., for failure to state a claim.

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Plaintiff filed his original complaint on July 3, 2012. On July 30, 2012, he filed a

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motion to amend with a proposed amended complaint (doc. 6). Despite not having been

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served, defendants filed a motion to dismiss on August 22, 2012, stating that their motion

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could be applied to plaintiff's original or proposed amended complaint. Therefore, the court

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granted plaintiff's motion and allowed him to amend his complaint even though he failed to

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comply with LRCiv 15.1 and LRCiv 5.4.

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A party is entitled to only one amendment as of right. Rule 15, Fed. R. Civ. P. Yet

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plaintiff has twice amended. After we issued our order, plaintiff mailed the court a notice

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of withdrawal purporting to withdraw his original complaint. He then filed a "STANDING

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Amended Complaint" (doc. 13) which differs from the proposed amended complaint. He did

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not obtain defendants' written consent or seek leave from the court to amend a second time,

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in contravention of Rule 15(a)(2), Fed. R. Civ. P. In addition, he once again fails to comply

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with LRCiv 15.1.

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Plaintiff also fails to comply with our order granting leave to amend, in which we

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instructed plaintiff to "file and serve the amended complaint on all defendants under Rule 5,

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Fed. R. Civ. P., within fourteen days of the filing of this order, pursuant to LRCiv 15.1" (doc.

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8). There is no evidence that he has served defendants with a single document throughout

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this litigation.

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When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., "a

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court must construe the complaint in the light most favorable to the plaintiff and must accept

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all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th

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Cir. 2000). On the other hand, a court is "not bound to accept as true a legal conclusion

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couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

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1955, 1965 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944

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(1986)). To survive a motion to dismiss, the complaint must contain "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570, 127 S. Ct. at 1974. "A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.

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Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). Dismissal may be "based on the lack

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of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

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theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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II

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Title II of the Americans with Disabilities Act ("ADA") prohibits a public entity from

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discriminating against an individual with a disability. 42 U.S.C. § 12132. To state a claim,

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plaintiff must allege four elements: (1) he is an individual with a disability; (2) he is

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otherwise qualified to participate in or receive the benefit of a public entity's services,

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programs, or activities; (3) he was either excluded from participation in or denied the benefits

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of the public entity's services, programs, or activities, or was otherwise discriminated against
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by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by

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reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

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Plaintiff's proposed amended complaint alleges that defendant Holbrook Police

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Department accused plaintiff of yelling at officers, that he told officers he is hard of hearing,

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and that they harassed him because of a leash law. His complaint does not state a facially

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plausible claim because it does not contain any facts showing that plaintiff is entitled to

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relief. Moreover, he fails to allege even a single element of a cause of action for disability

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discrimination. He has neither a cognizable legal theory nor sufficient facts to support a

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claim under Title II of the ADA.

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Even were we to adopt plaintiff's second amended complaint as the operative

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pleading, it still falls short of stating a claim. He states that he is disabled but provides no

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information about his impairments, preventing the court from determining whether he meets

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the definition of disability found in 42 U.S.C. § 12102(2). He does not address the remaining

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three elements at all. Besides his ADA claim, he adds a claim for violations of constitutional

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rights to this complaint (doc. 13 at 2). But the court cannot divine which rights he believes

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were violated. The complaint has no cognizable legal theories.

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Plaintiff has now filed three complaints, none of which come close to stating a cause

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of action. "Where the plaintiff has previously been granted leave to amend and has

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subsequently failed to add the requisite particularity to its claims, the district court's

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discretion to deny leave to amend is particularly broad." Zucco Partners, LLC v. Digimarc

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Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (quotation omitted). Plaintiff has repeatedly failed

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to cure deficiencies in his complaint. Any further attempt to amend would be futile.

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IT IS ORDERED GRANTING defendants' motion to dismiss with prejudice (doc.
7). We urge plaintiff to seek the advice of a lawyer.
DATED this 25th day of September, 2012.

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