Shah v. Employment Development Department

Filing 21

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/22/2012 GRANTING 9 Motion to Dismiss with Leave to Amend, Amended Complaint due within 30 days; DENYING 15 Motion to Appoint Counsel; CONTINUING Status (Pretrial Scheduling) Conference until 5/16/2012 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. Status Report due by 5/2/2012. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FERNANDO SHAH,
Plaintiff,

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vs.

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No. CIV S-11-318 GEB EFB PS

EMPLOYMENT DEVELOPMENT
DEPARTMENT,

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Defendant.

ORDER
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This case, in which plaintiff is proceeding in propria persona and in forma pauperis, was

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referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California

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Local Rule 302(c)(21). Defendant moves to dismiss plaintiff’s complaint pursuant to Federal

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Rule of Civil Procedure 12(b)(6) for failure to state a claim. Dckt. No. 9. Plaintiff opposes the

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motion and has requested appointment of counsel. Dckt. Nos. 15, 16. For the reasons stated

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herein, defendant’s motion is granted and plaintiff’s request for counsel is denied.

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I.

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BACKGROUND
Plaintiff’s complaint alleges that his employer, the California Employment Development

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Department, violated the Americans with Disabilities Act (“ADA”) by failing to provide plaintiff

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with a reasonable accommodation, failing to promote plaintiff, and reducing plaintiff’s hours as a

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result of his disability. Compl., Dckt. No. 1. Plaintiff contends that he has a permanent

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disability, Type II diabetes, and other possible ailments. Id. He seeks “equitable compensation,

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retirement, or transfer.” Id. As noted in the screening order in this case, although plaintiff

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alleges that defendant violated “Title VII” of the ADA, because no such Title exists, it appears

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plaintiff intends to state a claim under Title I of the ADA. See Dckt. No. 4 at 2.

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II.

RULE 12(b)(6) MOTION TO DISMISS

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Defendant moves to dismiss plaintiff’s complaint pursuant to Rule 12(b)(6), arguing that

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“plaintiff’s claim under the Americans with Disabilities Act against defendant, a state agency, is

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barred, as a matter of law, under the Eleventh Amendment to the United States Constitution.”

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Dckt. No. 9 at 1-2. To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it

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must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something

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more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable

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right of action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216,

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pp. 235-36 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009) (quoting Twombly, 550 U.S. at 570). Dismissal is appropriate based either on the

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lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable

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legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In considering a motion to dismiss, the court must accept as true the allegations of the

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complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe

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the pleading in the light most favorable to the party opposing the motion, and resolve all doubts

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in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh’g denied, 396 U.S. 869

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(1969). The court will “‘presume that general allegations embrace those specific facts that are

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necessary to support the claim.’” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256

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(1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.

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1985). However, the court’s liberal interpretation of a pro se litigant’s pleading may not supply

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essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.

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1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Furthermore, “[t]he court is not required to accept legal conclusions cast in the form of factual

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allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

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Plaintiff’s allegations purport to state a Title I ADA claim against defendant, the

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California Employment Development Department (“EDD”). Title I of the ADA “prohibits

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employment discrimination against qualified individuals on the basis of disability.” See Vinson

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v. Thomas, 288 F.3d 1145, 1158 (9th Cir. 2002); 42 U.S.C. § 12112. However, absent waiver of

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Eleventh Amendment immunity, states are not amenable to suit under Title I of the ADA. See

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Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 360 (2001) (“We hold that

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such suits are barred by the Eleventh Amendment.”). EDD, as a state agency, is therefore

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immune from suit under Title I of the ADA unless California has waived its Eleventh

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Amendment protection in this specific context. Id.; Pennhurst State School & Hosp. v.

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Halderman, 465 U.S. 89, 100 (1984).

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Here, there is nothing to suggest that California has waived its immunity to suit under

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Title I of the ADA. Cf. BV Engineering v. Univ. of Cal., Los Angeles, 858 F.2d 1394, 1397-1400

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(9th Cir. 1988) (noting that waiver requires either express consent to suit from a state or clear

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Congressional intent to condition participation in a federal program on waiver of immunity).

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Congress did not precondition participation in the broader ADA program on a state waiver of

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immunity, see Garrett, 531 U.S. at 363-64, and there is no indication that California or the EDD

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has manifested a desire to consent to this type of suit. See BV Engineering, 858 F.2d at 1397.

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Therefore, plaintiff’s complaint must be dismissed. However, plaintiff will be granted

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leave to file an amended complaint to the extent that plaintiff can properly state a claim under

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Title II of the ADA, the Rehabilitation Act of 1973, or another appropriate federal statute. Lopez

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v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se

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litigants an opportunity to amend to correct any deficiency in their complaints). Any amended

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complaint must identify the specific theory or theories on which the complaint is based and shall

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state the specific factual conduct that supports plaintiff’s right to relief on each such theory. In

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other words, plaintiff must allege that defendant violated a particular statute or statutes (e.g.,

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Title II of the ADA, the Rehabilitation Act, etc.), and shall state the specific conduct by

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defendant that violates each such statute.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the earlier filed complaint no longer serves any function in

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the case. Therefore, “a plaintiff waives all causes of action alleged in the original complaint

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which are not alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811,

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814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer

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defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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III.

REQUEST FOR APPOINTMENT OF COUNSEL

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Plaintiff also once again requests appointment of counsel pursuant to 42 U.S.C.

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§ 2000e-5(f).1 Dckt. No. 15. However, the statute plaintiff cites authorizes the appointment of

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counsel in cases brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), not cases

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brought under the ADA. Disability is not a protected class under Title VII. See Williams v.

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Plaintiff originally requested counsel shortly after filing his complaint, but that request
was denied for similar reasons as those set forth herein. See Dckt. Nos. 3, 4.
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Holiday Inn, 1996 WL 162992 (N.D. Cal. Mar. 13, 1996) (dismissing all of the employee’s

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disability discrimination claims under Title VII). Nonetheless, to the extent plaintiff’s request

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for appointment of counsel is construed as a request for counsel pursuant to 28 U.S.C. § 1915(d),

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that request is denied without prejudice. The court may only designate counsel to represent an

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indigent civil litigant pursuant to 28 U.S.C. § 1915(d) in certain exceptional circumstances. See

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990); Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988). In considering

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whether exceptional circumstances exist, the court must evaluate (1) the plaintiff’s likelihood of

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success on the merits; and (2) the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Terrell, 935 F.2d at 1017. Because plaintiff’s

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complaint is dismissed herein, the court cannot conclude that plaintiff’s likelihood of success,

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the complexity of the issues, or the degree of plaintiff’s ability to articulate his claims amount to

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exceptional circumstances justifying the appointment of counsel at this time.

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IV.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s motion to dismiss plaintiff’s complaint, Dckt. No. 9, is granted with leave

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to amend as provided herein.

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2. Plaintiff’s motion for appointment of counsel, Dckt. No. 15, is denied.

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3. Plaintiff has thirty days from the date this order issues to file an amended complaint,

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as provided herein. The amended complaint must bear the docket number assigned to this case

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and must be labeled “First Amended Complaint.” Failure to timely file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed.
4. The status (pretrial scheduling) conference that is currently set for March 14, 2012 is

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continued to May 16, 2012 at 10:00 a.m. in Courtroom No. 24.

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5. The parties shall file status reports, as required by the May 5, 2011 order, on or before

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May 2, 2012.

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DATED: February 22, 2012.

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