Blank v. Wal-Mart Store, et al.

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/13/2017 GRANTING 2 Motion to Proceed IFP. Plaintiff's 1 Complaint is DISMISSED with leave to amend within 30 days from the date of service of this order. (York, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PAUL LOUIS BLANK, 11 12 13 14 No. 2:17-cv-231-MCE-EFB PS Plaintiff, v. ORDER WAL-MART STORE AND SAM’S CLUB, Defendants. 15 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint fails to state a claim and must be dismissed. 25 26 27 28 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 1 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). 1 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 In reviewing a complaint under this standard, the court must accept as true the allegations 11 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), 12 construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the 13 plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy 14 the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) 15 requires a complaint to include “a short and plain statement of the claim showing that the pleader 16 is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds 17 upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 19 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 20 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 21 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 22 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 23 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 24 authorized by a federal statute that both regulates a specific subject matter and confers federal 25 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 26 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 27 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 28 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 2 1 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 2 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 3 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 4 Here, the allegations in plaintiff’s four sentence complaint fail to state a claim. Plaintiff 5 alleges that he “requested emergency medical attention via 911 from [a] Wal-Mart store manager, 6 but since the plaintiff could not afford a $12 cell phone, he could not call.” ECF No. 1. He 7 further claims that the failure to assist him violated the Americans with Disabilities Act (“ADA”). 8 Id. Based on the purported violation, he seeks one trillion dollars in damages, which he describes 9 as a “fair settlement.” Id. 10 These allegations are too vague and conclusory to state a claim for violation of the ADA. 11 To state a claim under Title III of the ADA, plaintiff must allege that “(1)[he] is disabled within 12 the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 13 place of public accommodation; and (3) the plaintiff was denied public accommodations by the 14 defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 15 2007). Plaintiff does not claim that he is disabled, nor does he allege that he was denied a public 16 accommodation because of a disability. Thus, he fails to allege an ADA claim. Moreover, the 17 only remedy under Title III of the ADA is injunctive relief. Ervine v. Desert View Regional 18 Medical Center Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (“Damages are not an available 19 remedy to individuals under Title III of the ADA; individuals may receive only injunctive 20 relief.”). Accordingly, plaintiff could not recover the monetary damages he seeks. 21 Accordingly, the complaint must be dismissed for failure to state a claim. However, 22 plaintiff is granted leave to file an amended complaint, if he can allege a basis for this court’s 23 jurisdiction, as well as a cognizable legal theory against a proper defendant and sufficient facts in 24 support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 25 (en banc) (district courts must afford pro se litigants an opportunity to amend to correct any 26 deficiency in their complaints). Should plaintiff choose to file an amended complaint, the 27 amended complaint shall clearly set forth the allegations against defendant and shall specify a 28 basis for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s 3 1 claims in “numbered paragraphs, each limited as far as practicable to a single set of 2 circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double- 3 spaced text on paper that bears line numbers in the left margin, as required by Eastern District of 4 California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings 5 to delineate each claim alleged and against which defendant or defendants the claim is alleged, as 6 required by Rule 10(b), and must plead clear facts that support each claim under each header. 7 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 8 make an amended complaint complete. Local Rule 220 requires that an amended complaint be 9 complete in itself. This is because, as a general rule, an amended complaint supersedes the 10 original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 11 plaintiff files an amended complaint, the original no longer serves any function in the case. 12 Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 13 alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 14 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 15 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 16 comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 17 may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 18 Accordingly, IT IS ORDERED that: 19 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 20 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 21 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 22 complaint. The amended complaint must bear the docket number assigned to this case and must 23 be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 24 accordance with this order will result in a recommendation this action be dismissed. 25 DATED: November 13, 2017. 26 27 28 4

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