Blank v. National Railroad Passenger Corporation

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/9/2017 GRANTING 2 Plaintiff's Motion to Proceed in forma pauperis; Plaintiff's compliant is DISMISSED with leave to amend, as provided herein; Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL LOUIS BLANK,

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Plaintiff,

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No. 2:16-cv-2775-TLN-EFB

v.

ORDER

NATIONAL RAILROAD PASSENGER
CORPORATION,
Defendant.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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

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

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant. As discussed

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below, plaintiff’s complaint fails to state a claim and must be dismissed.

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
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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 it

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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 (1976),

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

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

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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requires a complaint to include “a short and plain statement of the claim showing that the pleader

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

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upon which it rests.” Twombly, 550 U.S. at 555 (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. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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

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

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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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 one-page complaint alleges that on an unspecified date he purchased a ticket for

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an Amtrak train. ECF No. 1. He claims that when he attempted to board a train at the Chico,

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California Amtrak station, a female “ticket taker” denied him boarding privileges. He appears to

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contend that the refusal to allow him to board the train violated the Americans with Disabilities

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Act (“ADA”).

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Title II of the ADA prohibits a public entity from discriminating against a qualified

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individual with a disability on the basis of disability. 42 U.S.C. § 12132. “To state a claim of

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disability discrimination under Title II, the plaintiff must allege four elements: (1) the plaintiff is

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an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive

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the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either

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excluded from participation in or denied the benefits of the public entity’s services, programs, or

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activities, or was otherwise discriminated against by the public entity; and (4) such exclusion,

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denial of benefits, or discrimination was by reason of the plaintiff’s disability.” Thompson v.

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Davis, 295 F.3d 890, 895 (9th Cir.2002); see also Lee v. City of Los Angeles, 250 F.3d 668, 691

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(9th Cir. 2001) (“If a public entity denies an otherwise ‘qualified individual’ ‘meaningful access’

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to its ‘services, programs, or activities’ ‘solely by reason of’ his or her disability, that individual

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may have an ADA claim against the public entity.”).

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Here, plaintiff has failed to allege that he was denied a benefit on account of his disability.

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He does not allege that defendant denied him access to access to its train on account of his

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disability. Indeed, plaintiff does not even allege that he is an individual with a disability.

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Plaintiff has therefore failed to state a claim for violation of the ADA. Accordingly, plaintiff’s

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complaint must be dismissed for failure to state a claim.

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Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable

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

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legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts

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must afford pro se litigants an opportunity to amend to correct any deficiency in their

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complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall

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clearly set forth the claims and allegations against each defendant. Any amended complaint must

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cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally
participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, plaintiff is cautioned that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in form pauperis (ECF No. 2) is granted.

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2. Plaintiff’s compliant is dismissed with leave to amend, as provided herein.

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3. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and be
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titled “First Amended Complaint.” Failure to timely file an amended complaint in accordance

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with this order will result in a recommendation this action be dismissed.

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DATED: May 9, 2017.

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