Shackelford v. Virtu Investments

Filing 17

ORDER signed by District Judge Troy L. Nunley on 12/2/19 ADOPTING 15 Findings and Recommendations. Plaintiff's Second Amended Complaint 8 is DISMISSED, without leave to amend, for failure to state a claim. CASE CLOSED.(Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAWNE C. SHACKELFORD,

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No. 2:16-cv-01601-TLN-EFB

Plaintiff,
v.

ORDER

VIRTU INVESTMENTS, LLC,
Defendant.

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Plaintiff Dawne C. Shackelford (“Plaintiff”), proceeding pro se, brings the instant action.

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The matter was referred to a United States Magistrate Judge pursuant to Eastern District of

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California Local Rule 302(c)(21).

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On October 3, 2019, the magistrate judge filed findings and recommendations herein

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which were served on Plaintiff and which contained notice to Plaintiff that any objections to the

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findings and recommendations were to be filed within fourteen days. (ECF No. 15.) On October

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17, 2019, Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 16.)

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This Court reviews de novo those portions of the proposed findings of fact to which

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objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore

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Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As

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to any portion of the proposed findings of fact to which no objection has been made, the Court

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assumes its correctness and decides the motions on the applicable law. See Orand v. United
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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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Having carefully reviewed the entire file under the applicable legal standards, the Court

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finds the Findings and Recommendations to be supported by the record and by the magistrate

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judge’s analysis.

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The magistrate judge recommended dismissal on the basis that Plaintiff fails to allege

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facts showing the Americans with Disabilities Act1 (“ADA”) applies because Plaintiff no longer

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lives at the apartment complex that is the subject of her claims (and therefore cannot establish

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entitlement to injunctive relief). (ECF No. 15 at 3.) Similarly, the Findings and

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Recommendations find Plaintiff fails to allege facts that the Servicemembers Civil Relief Act2

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(“SCRA”) applies because Plaintiff is not on active military service but is a “retired Gulf war

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veteran.” (ECF No. 15 at 4.)

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Plaintiff objects to the recommendation to dismiss her Second Amended Complaint with

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prejudice because, Plaintiff asserts, she could add allegations of continuing harm caused by

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unnamed defendants. (ECF No. 16 at 1.) Plaintiff does not, however, provide the proposed

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allegations or identify what harm will be alleged. Further, the Court finds Plaintiff’s proposed

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amendments would not cure the inherent defects in her ADA or SCRA claims. Indeed, Plaintiff

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does not object to the findings that the allegations in her complaint establish the ADA and SCRA

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are inapplicable to her claims. Therefore, Plaintiff fails to indicate that further amendment could

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cure the defects identified in the Findings and Recommendations. Accordingly, Plaintiff’s

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objections are overruled.

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To prevail on a Title III discrimination claim under the ADA, Plaintiff must show: (1) she
is disabled within the meaning of the ADA; (2) Defendant is a private entity that owns, leases, or
operates a place of public accommodation; and (3) Plaintiff was denied public accommodations
by Defendant because of her disability. (See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th
Cir. 2007).) Further, the only remedy available under Title III of the ADA is injunctive relief.
(42 U.S.C. § 12188(a)(1).)
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Claims under the SCRA apply to provide limitations on judicial proceedings to enable a
servicemember to devote her entire energy to the defense needs of the Nation “while a member of
the armed forces is on active duty…” (See 50 U.S.C. § 3902; Brewster v. Sun Trust Mortg., Inc.,
742 F.2d 867 (9th Cir. 2014).)
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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations, filed October 3, 2019 (ECF No. 15), are adopted

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in full;
2. Plaintiff’s Second Amended Complaint (ECF No. 8) is DISMISSED, without leave to
amend, for failure to state a claim; and

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3. The Clerk of the Court is directed to close the case.

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IT IS SO ORDERED.

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Dated: December 2, 2019

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Troy L. Nunley
United States District Judge

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