Michael Edelstein v. Single Room Occupancy Housing Corp.,

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Alexander F. MacKinnon: Any First Amended Complaint shall be filed no later than 30 days after the date of this Order. (See document for details). (Attachments: # 1 CV-66 CV Rights Complaint Form, # 2 Form CV-09 Notc of Dismissal) (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL EDELSTEIN, 12 13 14 15 16 Plaintiff, v. Case No. CV 17-06042 BRO (AFM) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND SINGLE ROOM OCCUPANCY HOUSING CORP., Defendant. 17 18 On August 15, 2017, plaintiff filed a civil rights action pursuant to 42 U.S.C. 19 § 1983 and Title VI . (ECF No. 1 at 1.) He subsequently was granted leave to 20 proceed in forma pauperis. 21 Occupancy Housing Corp. (“SRO”), a nonprofit corporation. 22 purports to be raising one claim pursuant to Title VI, 42 U.S.C. § 2000d, et seq. 23 (Id. at 1, 2, 5, 6.) Plaintiff seeks monetary damages. (Id. at 7-8.) The Complaint 24 arises from incidents that occurred while plaintiff was a resident of the Leonide 25 Hotel, a property owned and operated by SRO. (Id. at 2.) Plaintiff names one defendant, Single Room (Id.) Plaintiff 26 In accordance with the terms of the “Prison Litigation Reform Act of 1995” 27 (“PLRA”), the Court has screened the Complaint prior to ordering service for 28 purposes of determining whether the action is frivolous or malicious; or fails to 1 state a claim on which relief may be granted; or seeks monetary relief against a 2 defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). The 3 Court’s screening of the pleading under the foregoing statute is governed by the 4 following standards. A complaint may be dismissed as a matter of law for failure to 5 state a claim for two reasons: 6 (2) insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica 7 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also Rosati v. Igbinoso, 791 8 F.3d 1037, 1039 (9th Cir. 2015) (when determining whether a complaint should be 9 dismissed for failure to state a claim under § 1915(e)(2), the court applies the same (1) lack of a cognizable legal theory; or 10 standard as applied in a motion to dismiss pursuant to Rule 12(b)(6)). In 11 determining whether the pleading states a claim on which relief may be granted, its 12 allegations of material fact must be taken as true and construed in the light most 13 favorable to plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 14 1989). However, the “tenet that a court must accept as true all of the allegations 15 contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 16 556 U.S. 662, 678 (2009). Nor is the Court “bound to accept as true a legal 17 conclusion couched as a factual allegation.” Wood v. Moss, 134 S. Ct. 2056, 2065 18 n.5 (2014) (citing Iqbal, 556 U.S. at 678). 19 conclusory statements, which are not entitled to the presumption of truth, before 20 determining whether a claim is plausible.” Salameh v. Tarsadia Hotel, 726 F.3d 21 1124, 1129 (9th Cir. 2013), cert. denied, 134 S. Ct. 1322 (2014). Then, “dismissal 22 is appropriate where the plaintiff failed to allege enough facts to state a claim to 23 relief that is plausible on its face.” Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 24 2017) (internal quotation marks omitted, emphasis added). Rather, a court first “discounts 25 Further, since plaintiff is appearing pro se, the Court must construe the 26 allegations of the pleading liberally and must afford plaintiff the benefit of any 27 doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the 28 Supreme Court has held that “a plaintiff’s obligation to provide the ‘grounds’ of his 2 1 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 2 recitation of the elements of a cause of action will not do. . . . Factual allegations 3 must be enough to raise a right to relief above the speculative level . . . on the 4 assumption that all the allegations in the complaint are true (even if doubtful in 5 fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations 6 omitted, alteration in original); see also Iqbal, 556 U.S. at 678 (To avoid dismissal 7 for failure to state a claim, “a complaint must contain sufficient factual matter, 8 accepted as true, to ‘state a claim to relief that is plausible on its face.’ . . . A claim 9 has facial plausibility when the plaintiff pleads factual content that allows the court 10 to draw the reasonable inference that the defendant is liable for the misconduct 11 alleged.” (internal citation omitted)). 12 Following careful review of the Complaint, the Court finds that its 13 allegations appear insufficient to state any claim upon which relief may be granted. 14 Accordingly, the Complaint is dismissed with leave to amend. See Rosati, 791 F.3d 15 at 1039 (“A district court should not dismiss a pro se complaint without leave to 16 amend unless it is absolutely clear that the deficiencies of the complaint could not 17 be cured by amendment.”) (internal quotation marks omitted). 18 If plaintiff desires to pursue this action, he is ORDERED to file a First 19 Amended Complaint no later than thirty (30) days after the date of this Order, 20 remedying the deficiencies discussed below. Further, plaintiff is admonished 21 that, if he fails to timely file a First Amended Complaint, or fails to remedy the 22 deficiencies of this pleading as discussed herein, the Court will recommend that this 23 action be dismissed without leave to amend and with prejudice.1 24 25 1 26 27 28 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, although this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not required to omit any claim or 3 1 A. Title VI 2 Although the title page of the Complaint references 42 U.S.C. § 1983 (ECF 3 No. 1 at 1), the Complaint only sets forth one Cause of Action. That cause of 4 action purports to be raised pursuant to Title VI, 42 U.S.C. § 2000d, et seq. (Id. at 5 6.) 6 As alleged in the Complaint, plaintiff, who is a recipient of a federal housing 7 subsidy, was a resident of the Leonide Hotel from April 2009 to August 2015. (Id. 8 at 2.) 9 management based on his Jewish identity.” (Id.) Further, SRO was aware of the 10 “hostile environment towards Jewish tenants” at the property, and it “actively and 11 intentionally engaged in and condoned this pattern of” discrimination. (Id. at 7.) 12 Plaintiff alleges that he experienced “racist and anti-Semitic” graffiti and vandalism 13 to his door; a physical threat from the “manager of the Leonide Hotel”; the loss of 14 access to his unit when the manager attached a “door latch”; and “verbal threats and 15 anti-Semitic slurs.” (Id. at 3.) Plaintiff also alleges that SRO refused to investigate 16 threats, harassment, and repeated vandalism to his door, including a swastika 17 carved into the door. (Id.) Plaintiff then “suffered an illegal lockout on August 18 2015,” but he retained a key that he attempted to surrender upon being allowed 19 access to regain his belongings. (Id. at 4.) He made “failed” attempts to set up 20 meetings with “SRO management” in August and September 2015, and in October 21 2015, “he had a hostile confrontation with the manager who refused plaintiff 22 access.” (Id.) Plaintiff further alleges that the manager “pushed plaintiff” and told 23 plaintiff to surrender the key without being provided access to recover plaintiff’s 24 25 26 27 28 Plaintiff was “verbally and physically threatened and targeted by SRO defendant in order to pursue this action. However, if you decide to pursue a claim in a First Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately may submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as provided in the Local Rules Governing Duties of Magistrate Judges. 4 1 property. Plaintiff reported this incident and his earlier “concerns” to SRO, but 2 SRO refused to act. (Id.) 3 In the Complaint, plaintiff expressly alleges that SRO “has fostered and 4 sanctioned anti-Semitism from the highest levels and affirmed the actions of 5 hostile, aggressive, and disruptive behavior by their managers and agents.” (Id. at 6 4.) Title VI, however, does not prohibit discrimination on the basis of religion. See, 7 e.g., Lubavitch-Chabad of Illinois, Inc. v. Nw. Univ., 6 F. Supp. 3d 806, 816 (N.D. 8 Ill. 2013) (“Title VI does not provide for protection against discrimination on the 9 basis of religion—only race, color, or national origin.”). Rather, 42 U.S.C. 10 § 2000d states: “No person in the United States shall, on the ground of race, color, 11 or national origin, be excluded from participation in, be denied the benefits of, or be 12 subjected to discrimination under any program or activity receiving Federal 13 financial assistance.” See Alexander v. Sandoval, 532 U.S. 275, 278 (2001). The 14 Complaint does not set forth any factual allegations that plausibly give rise to a 15 claim of discrimination based on “race, color, or national origin.” Accordingly, even accepted as true, the allegations in the Complaint fail to 16 17 raise a right to relief above the speculative level. See Twombly, 550 U.S. at 555. 18 19 B. Fair Housing Act 20 Plaintiff’s Complaint does not purport to allege a claim pursuant to the Fair 21 Housing Act (“FHA”). The FHA, however, prohibits discrimination in the sale or 22 rental of housing to any person because religion, as well as race, color, sex, familial 23 status, or national origin. 42 U.S.C. §§ 3604-3605; see, e.g., Taylor v. Rancho 24 Santa Barbara, 206 F.3d 932, 935 (9th Cir. 2000); see also Edwards v. Marin Park, 25 Inc., 356 F.3d 1058, 1062 (9ith Cir. 2004) (applying the Fed. R. Civ. P. 8(a) to 26 FHA claims). Pursuant to Section 3604(a), it is unlawful to “make unavailable or 27 deny a dwelling to any person because of race, color, religion, sex, familial status, 28 or national origin.” 5 1 Based on the factual allegations in the Complaint, it appears to the Court that 2 plaintiff may be able to state a claim pursuant to the FHA. If plaintiff wishes to 3 pursue such a claim, he should set forth in a First Amended Complaint a simple, 4 concise, and direct statement of the factual and legal basis of his claims against the 5 defendant. See Fed. R. Civ. P. 8(a), 8(d). ************ 6 7 If plaintiff still desires to pursue this action, he is ORDERED to file a First 8 Amended Complaint no later than thirty (30) days after the date of this Order, 9 remedying the pleading deficiencies discussed above. The First Amended 10 Complaint should bear the docket number assigned in this case; be labeled “First 11 Amended Complaint”; and be complete in and of itself without reference to the 12 original Complaint, or any other pleading, attachment, or document. 13 The clerk is directed to send plaintiff a blank Central District civil rights 14 complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished 15 that he must sign and date the civil rights complaint form, and he must use the 16 space provided in the form to set forth all of the claims that he wishes to assert in a 17 First Amended Complaint. 18 In addition, if plaintiff no longer wishes to pursue this action, he may request 19 a voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure 20 41(a). The clerk also is directed to attach a Notice of Dismissal form for plaintiff’s 21 convenience. 22 Plaintiff is further admonished that, if he fails to timely file a First Amended 23 Complaint, or fails to remedy the deficiencies of this pleading as discussed herein, 24 the Court will recommend that the action be dismissed with prejudice on the 25 grounds set forth above and for failure to diligently prosecute. 26 Finally if plaintiff wishes to receive free information and guidance 27 concerning self-representation, a pro se clinic is held within the Court at the 28 following times and location: 6 1 2 3 4 The United States Courthouse 312 N. Spring Street, Room G-19 Los Angeles, CA 90012 Mondays, Wednesdays and Fridays 9:30 am - 12:00 pm and 2:00 pm - 4:00 pm (213) 385-2977, ext. 270 5 6 IT IS SO ORDERED. 7 8 DATED: 8/23/2017 9 10 11 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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