Ajuluchuku v. Extended Stay, et al

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/17/2012 ORDERING 2 Motion to Proceed IFPis GRANTED; RECOMMENDING that 1 Complaint filed by Amanda U. Ajuluchuku be dismissed without leave to amend; and the Clerk be directed to close this case. Matter referred to Judge Garland E. Burrell, Jr. Objections to F&R may be filed within 14 days after being served with these findings and recommendations. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMANDA U. AJULUCHUKU,
Plaintiff,

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ORDER AND
FINDINGS AND RECOMMENDATIONS

vs.
APPLE, INC.,

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/

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No. 2:12-cv-2494-GEB-EFB PS

Defendant.

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This case, in which plaintiff is proceeding in propria persona, was referred to the

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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff’s declaration makes

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the showing required by 28 U.S.C. § 1915(a)(1) and (2). See Dckt. No. 2. Accordingly, the

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request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

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Determining plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court is directed to dismiss the case at any time if it

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determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,
520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if
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it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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

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

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.

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Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &

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1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question

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jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2)

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allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or

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(3) be authorized by a federal statute that both regulates a specific subject matter and confers

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federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity
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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Plaintiff’s complaint appears to be alleging that defendant “stole” plaintiff’s belongings,

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which plaintiff was apparently storing at defendant’s hotel in Alpharetta, Georgia. Compl.,

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Dckt. No. 1, at 2, 3. Plaintiff states that she believes that she has “been discriminated against

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and stolen from based upon [her] race, Black color, color, Light-skinned, Sex, female, National

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Origin (Father, Nigerian) and physical disability (recurring deafness and dizziness) which are in

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violation of U.S. Code Title 42, Chapter 21.” Id. at 4. Plaintiff also contends that she is

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“disabled under the American Disability Act.” Id. Plaintiff seeks ten million dollars and an

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apology from defendant. Id. at 5.

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It does not appear from plaintiff’s complaint that this court has subject matter jurisdiction

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over plaintiff’s claim(s). Plaintiff contends that this court has diversity jurisdiction since

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defendant’s corporate office is in South Carolina and plaintiff resides in California, and the

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amount in controversy is $10,000,000. Id. at 4, 5. However, plaintiff’s complaint does not

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establish the citizenship of either plaintiff or defendant.

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Nor is it clear how the facts alleged in the complaint would give rise to a federal claim.

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To the extent plaintiff’s claim is brought under 42 U.S.C. § 1983, that claim must be dismissed

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because plaintiff fails to allege that defendant was a state actor or was otherwise acting under

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color of law, she fails to identify the constitutional rights that defendant allegedly violated, and

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she fails to explain how defendant’s actions resulted in the deprivation of any constitutional

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right. See West v. Atkins, 487 U.S. 42, 48 (1988) (To state a claim under § 1983, plaintiff must

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allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation
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was committed by a person acting under the color of state law).
Additionally, to the extent plaintiff purports to state a claim under 42 U.S.C. § 2000a

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(Title II of the Civil Rights Act of 1964), that claim fails because plaintiff has not alleged that

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she was denied full and equal enjoyment of defendant’s “goods, services, facilities, privileges,

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advantages, and accommodations” due to discrimination based on her race, color, religion, or

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national origin. See 42 U.S.C. § 2000a(a) (“All persons shall be entitled to the full and equal

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enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any

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place of public accommodation, as defined in this section, without discrimination or segregation

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on the ground of race, color, religion, or national origin.”). Although plaintiff states in a

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conclusory manner that she was discriminated against based on those factors, she has not alleged

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any facts that would demonstrate that such a claim is plausible on its face. Rather, plaintiff

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alleges that she her belongings were stolen because she was storing them at defendant’s hotel

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and defendant deemed them to be a fire hazard. Dckt. No. 1 at 2.

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Also, to the extent plaintiff purports to state a claim under 42 U.S.C. § 2000d (Title VI),

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such a claim fails because plaintiff does not allege that she was subject to discrimination under

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any program or activity receiving Federal financial assistance; rather, she alleges defendant

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“stole” her belongings. See 42 U.S.C. § 2000d (providing that: “No person in the United States

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shall, on the ground of race, color, or national origin, be excluded from participation in, be

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denied the benefits of, or be subject to discrimination under any program or activity receiving

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Federal financial assistance.”)).

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Finally, to the extent plaintiff purports to state a claim under the Americans with

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Disabilities Act (“ADA”), the claim fails because plaintiff does not sufficiently allege that she is

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disabled within the meaning of the ADA, and she does not allege any plausible connection

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between her purported disability (deafness and dizziness) and defendant’s alleged conduct. See

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42 U.S.C. § 12102(1) (The ADA defines a disability as (1) a physical or mental impairment that

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substantially limits one or more major life activities; (2) a record of such an impairment; or (3)
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being regarded as having such an impairment.). Moreover, the only remedy under Title III of the

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ADA, 42 U.S.C. § 12182, is injunctive relief.

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Additionally, it appears venue is improper in this district. Pursuant to 28 U.S.C.

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§ 1406(a), a “district court of a district in which [a case is filed] laying venue in the wrong

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division or district shall dismiss, or if it be in the interest of justice, transfer such case to any

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district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Civil actions

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“may be brought in– (1) a judicial district in which any defendant resides, if all defendants are

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residents of the State in which the district is located; (2) a judicial district in which a substantial

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part of the events or omissions giving rise to the claim occurred, or a substantial part of property

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that is the subject of the action is situated; or (3) if there is no district in which an action may

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otherwise be brought as provided in this section, any judicial district in which any defendant is

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subject to the court's personal jurisdiction with respect to such action.” Id. § 1391(b). For venue

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purposes, “an entity with the capacity to sue and be sued in its common name under applicable

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law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district

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in which such defendant is subject to the court's personal jurisdiction with respect to the civil

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action in question . . . .” Id. § 1391(c)(2). Plaintiff’s complaint does not allege any events or

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omissions occurring in the Eastern District of California; rather, the events giving rise to

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plaintiff’s claims occurred in Alpharetta, Georgia. Additionally, plaintiff alleges that

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defendant’s corporate office is in South Carolina. See Doe v. Mitchell, 2009 WL 838050 (D.

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Nev. Mar. 26, 2009) (dismissing action for lack of venue at the in forma pauperis stage);

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Alexandria v. United States, 2007 WL 2947461, *1 (S.D. Cal. 2007) (dismissing action for lack

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of venue at the in forma pauperis stage).

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Moreover, the court notes that this complaint appears to be one of several hundred

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frivolous complaints that plaintiff has filed all over the country. See Ajuluchuku-Levy v.

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Schleifer, 2009 WL 4890768, at *7 (E.D.N.Y. Dec. 15, 2009) (“[A] survey of the dockets of the

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United States district courts reveals that as of the date of this Order, Plaintiff has commenced
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two hundred fifty-eight (258) actions in various district courts across the United States. Several

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district courts have noted that “the ‘overwhelming majority’ of cases filed by plaintiff have been

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totally without merit.”) (quoting Ajuluchuku v. Southern New England School of Law, 2006 WL

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2661232, at *3 (N.D. Ga. Sep. 14, 2006)). In light of plaintiff’s frivolous allegations herein, as

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well as her history of filing frivolous actions containing many of the same allegations, the court

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will recommend that this action be dismissed without leave to amend pursuant to 28 U.S.C.

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§ 1915(e)(2). Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court ordinarily

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would permit a pro se plaintiff to amend, leave to amend should not be granted where it appears

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amendment would be futile).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for leave to proceed in
forma pauperis, Dckt. No. 2, is granted.

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IT IS FURTHER RECOMMENDED that:

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1. Plaintiff’s complaint be dismissed without leave to amend; and

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2. The Clerk be directed to close this case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 17, 2012.

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