Trotter v. Felix et al.

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/27/2019 GRANTING plaintiff's 2 motion to proceed IFP. Plaintiff's 5 first amended complaint is DISMISSED with leave to amend. Plaintiff is GRANTED thirty days to file an amended complaint. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH TROTTER,

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Plaintiff,

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No. 2:17-cv-14-JAM-EFB PS

v.

ORDER

MARIC FELIX; NELSON FELIX; JOHN
FLANAGAN; and FUSION PROPERTY
MANAGEMENT COMPANY,

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Defendants.

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The court previously granted plaintiff’s request to proceed in forma pauperis, but

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dismissed his original complaint with leave to amend pursuant to 28 U.S.C. 1915(e)(2).1 Plaintiff

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subsequently filed a first amended complaint. ECF No. 5. As discussed below, the amended

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complaint fails to cure the defects that resulted in dismissal of plaintiff’s original complaint, and

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it, too, must be dismissed.

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As previously explained to plaintiff, although pro se pleadings are liberally construed, see

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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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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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(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 Cir.

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1990).

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Under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading

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

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

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

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which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Liberally construed, plaintiff’s complaint concerns multiple landlord-tenant disputes

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between plaintiff and defendants Maric Felix (“Maric”), Nelson Felix (“Nelson”), John Flanagan,

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and Fusion Property Management Corporation (“Fusion Property”). See generally ECF No. 1.

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Plaintiff alleges that he was approved for a one-bedroom unit under the Section 8 Housing Choice

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Voucher Program, but Maric, the property manager, and Nelson2 determined that plaintiff should

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be placed in a smaller unit because “it would be a lot less work for” them. Id. at 3-4. He further

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claims that Maric violated his privacy rights by allowing Nelson to be present during the

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processing of his rental application. Id. at 3. The complaint also alleges that Maric and Nelson

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have “engaged in promoting vigilante mob activities” and “hate crime activities” against plaintiff

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(id. at 4), they placed audio and visual surveillance devices inside plaintiff’s apartment (id.), and

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The original complaint explained that Nelson was the Maintenance Supervisor of the
apartment complex where plaintiff’s previously resided. See ECF No. 1 at 2.
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Nelson, on numerous occasions, caused rodent infestations in plaintiff’s apartment (id. at 10).

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Plaintiff appears to claims that defendants’ conduct violated his civil rights under 42 U.S.C.

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§ 1983; the Rehabilitation Act; Title IX of the Education Amendments Act; and Titles VI and VII

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of the Civil Rights Act of 1964, as well as state law.3

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Plaintiff’s allegations are too vague and conclusory to state a federal claim. To state a

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claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a right secured by the Constitution

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or laws of the United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Although

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plaintiff claims that each defendant was acting under color of state law (ECF No. 5 at 2), that

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conclusion, without more, is insufficient to establish defendants are state actors. See Ileto v.

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Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (the court need not accept as true unreasonable

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inferences or conclusory legal allegations cast in the form of factual allegations).

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Plaintiff also fails to state a claim under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq.

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Section 504 of the Rehabilitation Act prohibits “discrimination against all handicapped

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individuals . . . . in employment, housing, transportation, education, health services, or any other

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Federally-aided programs.” 29 U.S.C. § 794. To state a disability discrimination claim under

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Section 504, a plaintiff must allege: “(1) he is an ‘individual with a disability’, (2) he is

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‘otherwise qualified’ to receive the benefit; (3) he was denied the benefit of the program solely by

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reason of his disability; and (4) the program receives federal financial assistance. Weinreich v.

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Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997) (emphasis

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in original). Under the Rehabilitation Act, “disability” is defined as “(A) a physical or mental

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impairment that substantially limits one or more of the major life activities of such individual, (B)

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a record of such an impairment, or (C) being regarded as having such an impairment.” Walton v.

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U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007).

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Plaintiff claims that he is disabled because he is HIV positive. ECF No. 5 at 8; see
William S. v. Lassen Cty., 2006 WL 929398, at *3 (E.D. Cal. Apr. 11, 2006) (finding plaintiff
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Plaintiff’s complaint does not contain headings delineating each claim alleged, as
required by Rule 10(b).
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sufficiently alleged disability by stating that he was HIV positive notwithstanding failure to allege

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how he was mentally or physically impaired). But he fails to allege any facts reflecting that he

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subjected to discrimination on account of being HIV positive. See Mustafa v. Clark County Sch.

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Dist., 157 F.3d 1169, 1175 (9th Cir. 1998) (under the Rehabilitation Act, a plaintiff “must show

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that he was discriminated against solely on the basis of his disability).

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Plaintiff also cannot maintain a claim under Title IX based on his allegations. The

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complaint concerns landlord-tenant disputes and does not concern gender-based discrimination by

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a federally funded educational institution. See Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 (9th

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Cir. 2012) (“Title IX of the Education Amendments of 1972 bars gender-based discrimination by

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federally funded educational institutions.”); 20 U.S.C. § 1681(c) (defining “educational

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institution” as “any public or private preschool, elementary, or secondary school, or any

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institution of vocational, professional, or higher education . . . .”). see also Fitzgerald v.

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Barnstable Sch. Comm., 555 U.S. 246, 257 (2009) (“Title IX reaches institutions and programs

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that receive federal funds, . . . but it has consistently been interpreted as not authorizing suit

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against school officials, teachers, and other individuals.”). Likewise, Title VII has no bearing on

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this action since the complaint does not concern employment discrimination. See 42 U.S.C.

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§ 2000e.

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Plaintiff also cannot properly assert a Title VI claim against the three individual

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defendants. Aguirre v. San Leandro Police Dept., 2011 WL 738292, at *3 (N.D. Cal. Feb. 22,

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2011) (“Because Title VI is directed at programs that receive federal assistance, there is no right

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of action against individual employees or agents of those entities.”). Plaintiff’s Title VI claim

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against Fusion Property also fails since plaintiff does not allege that he was subjected to racial

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discrimination or that Fusion Property was receiving federal financial assistance. See Fobbs v.

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Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994) (to state a claim under Title VI,

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“a plaintiff must allege that (1) the entity involved is engaging in racial discrimination; and (2)

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the entity involved is receiving federal financial assistance.”).

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Lastly, plaintiff’s complaint makes reference to numerous state law claims, including
claims for stalking, trespass, intentional infliction of emotional distress, and breach of contract, to
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name a few. But plaintiff has yet to assert a properly-pleaded federal cause of action which

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precludes supplemental jurisdiction over the state law claims. See 28 U.S.C. §§ 1331 (“The

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district courts shall have original jurisdiction of all civil actions arising under the Constitution,

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laws, or treaties of the United States), 1367(a) (where the district court has original jurisdiction, it

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“shall have supplemental jurisdiction over all other claims that are so related to claims in the

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action within such original jurisdiction . . . .”). Nor has plaintiff established diversity jurisdiction

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over his state law claims.4 See 28 U.S.C. § 1332; Bautista v. Pan American World Airlines, Inc.,

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828 F.2d 546, 552 (9th Cir. 1987) (to establish diversity jurisdiction, a plaintiff must specifically

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allege the diverse citizenship of all parties, and that the matter in controversy exceeds $75,000.).

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Accordingly, plaintiff’s amended complaint must be dismissed for failure to state a claim.

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Plaintiff is granted leave to file an amended complaint. Any amended complaint must allege a

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

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

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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

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shall clearly set forth the allegations against defendant and shall specify a basis for this court’s

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subject matter jurisdiction. The amended complaint shall plead plaintiff’s claims in “numbered

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paragraphs, each limited as far as practicable to a single set of circumstances,” as required by

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Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line

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numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and

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130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and

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against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must

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plead clear facts that support each claim under each header.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to
make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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Although the amended complaint is silent at to defendants’ citizenship, plaintiff’s
original complaint alleged that plaintiff and defendants Maric and Nelson reside in California.
ECF No. 1 at 2.
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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

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Accordingly, IT IS ORDERED that:

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

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2. Plaintiff’s first amended complaint is dismissed with leave to amend, as provided

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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 must

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be labeled “Second Amended Complaint.” Failure to timely file an amended complaint in

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

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DATED: February 27, 2019.

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