Kilpatrick v. Raleys Corporation

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/10/13 RECOMMENDING that Plaintiff's Amended Complaint 4 be dismissed without leave to amend; and the Clerk be directed to close this case. These Findings and Recommendations are submitted to U.S. District Judge Lawrence K. Karlton. Objections to these F&Rs due within forteen days. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELSINA L. KILPATRICK,
Plaintiff,

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No. 2:13-cv-1131-LKK-EFB PS

vs.
RALEYS CORPORATION,
Defendant.

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FINDINGS AND RECOMMENDATIONS
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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). On June 20, 2013,

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the undersigned granted plaintiff’s request for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915, but dismissed plaintiff’s complaint with leave to amend pursuant to 28 U.S.C.

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§ 1915(e)(2). Dckt. No. 3. The order noted that it did not appear from plaintiff’s complaint that

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this court has subject matter jurisdiction over plaintiff’s claim(s), since the complaint did not

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allege diversity of the parties and it was unclear how the facts alleged in the complaint would

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give rise to any federal claim. Id. at 3. Therefore, the complaint was dismissed, and plaintiff

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was provided thirty days to file an amended complaint, if she could, alleging a cognizable legal

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theory against a proper defendant and sufficient facts in support of that cognizable legal theory.

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Id. at 4.
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On June 26, 2013, plaintiff filed an amended complaint. Dckt. No. 4. The amended

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complaint alleges that plaintiff suffered “personal injury of the body mind of emotional state,”

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which was caused by defendant in violation of Title II of the Americans with Disabilities Act

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(“ADA”).1 Id. She contends that the door at Raley’s caused her to suffered a head injury and

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claims that defendant does not take responsibility for the fact that “the sign on the door was NOT

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DISPLAYED.” Id.

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As noted in the June 20, 2013 order, although pro se pleadings are liberally construed,

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see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be

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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief

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that is plausible on its face.” 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)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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

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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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Plaintiff’s initial complaint alleged that on August 4, 2012, as she was exiting from an
open door at defendant’s Freeport Boulevard location, the door closed and she hit her head,
causing her injury. Dckt. No. 1 at 2. Thereafter, plaintiff cited Title II of the ADA. Id. at 3.
The Civil Cover Sheet attached to plaintiff’s initial complaint checked boxes for “Other Personal
Injury” and “Other Civil Rights,” and stated that the cause of action is brought under Title II of
the ADA. Dckt. No. 1-1.
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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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Here, plaintiff’s amended complaint once again fails to allege any facts that would

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support a cognizable legal claim or a basis for this court’s jurisdiction. Although plaintiff

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purports to state a claim under Title II of the ADA, as plaintiff was previously instructed, “[t]o

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state a claim of disability discrimination under Title II, the plaintiff must allege four elements:

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(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to

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participate in or receive the benefit of some public entity’s services, programs, or activities; (3)

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the plaintiff was either excluded from participation in or denied the benefits of the public entity’s
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services, programs, or activities, or was otherwise discriminated against by the public entity; and

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(4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s

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disability.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Plaintiff’s amended

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complaint once again does not allege any facts establishing any of those elements. Therefore,

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her Title II claim -- and this action -- must be dismissed.

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Because it appears further amendment would be futile, plaintiff’s amended complaint

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should be dismissed without leave to amend. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.

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1987) (While the court ordinarily would permit a pro se plaintiff to amend, leave to amend

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should not be granted where it appears amendment would be futile).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s amended complaint, Dckt. No. 4, 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: July 10, 2013.

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