Levy v. Palm Springs Public Library

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/17/2013 ORDERING that plaintiff's 2 request for leave to proceed in forma pauperis is GRANTED. IT IS FURTHER RECOMMENDED that Plaintiff's 1 complaint be dismissed without leave to amend. The Clerk be directed to close this case. Referred to Judge Troy L. Nunley. Objections to F&R due within 14 days. (Zignago, K.)

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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. LEVY,
Plaintiff,

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No. 2:13-cv-1412-TLN-EFB PS

vs.

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PALM SPRINGS PUBLIC LIBRARY,

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Defendant.

ORDER AND
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). 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).
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,

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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, who is Nigerian-American, alleges that on or before June 21, 2013, one of

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defendant’s female librarians and a male security guard “bullied her, defamed her, falsely

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imprisoned her, ousted her, and discriminated against her when [she] told them she was studying

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for her BAR exam.” Compl., Dckt. No. 1, at 2. Plaintiff alleges that she “appeared with her

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over-sized luggage.” Id. She contends that she “sustained neck injuries” due to the trauma. Id.

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Plaintiff adds that she “would like to be compensated for bullying, defamation, emotional

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distress, false imprisonment, humiliation, discrimination, and police brutality based upon

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national origin and disability for ten million dollars.” Id. Plaintiff contends that this court has

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diversity jurisdiction and federal question jurisdiction since defendant violated 42 U.S.C. § 1983

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and the Civil Rights Act, 42 U.S.C. § 2000a. Id. at 1-2.

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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 pursuant to

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28 U.S.C. § 1332, but she does not 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 purports to state a claim under 42 U.S.C. § 2000a (Title II of the Civil

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Rights Act of 1964), that claim fails because plaintiff has not alleged that she was denied full and

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equal enjoyment of defendant’s “goods, services, facilities, privileges, advantages, and

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accommodations” due to discrimination based on her race, color, religion, or national origin. See
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42 U.S.C. § 2000a(a) (“All persons shall be entitled to the full and equal enjoyment of the goods,

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services, facilities, privileges, advantages, and accommodations of any place of public

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accommodation, as defined in this section, without discrimination or segregation on the ground

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of race, color, religion, or national origin.”). Although plaintiff states in a conclusory manner

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that she was discriminated against on the basis of her national origin, she has not alleged any

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facts that would demonstrate that such a claim is plausible on its face.

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

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dismissed because plaintiff fails to identify the constitutional rights that defendant allegedly

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violated, and she fails to explain how defendant’s actions resulted in the deprivation of any

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

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plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that

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the violation was committed by a person acting under the color of state law).

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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: July 17, 2013.

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