Blank v. Wal-Mart Store, et al.
Filing
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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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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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No. 2:17-cv-231-MCE-EFB PS
Plaintiff,
v.
ORDER
WAL-MART STORE AND SAM’S
CLUB,
Defendants.
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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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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
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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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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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Here, the allegations in plaintiff’s four sentence complaint fail to state a claim. Plaintiff
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alleges that he “requested emergency medical attention via 911 from [a] Wal-Mart store manager,
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but since the plaintiff could not afford a $12 cell phone, he could not call.” ECF No. 1. He
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further claims that the failure to assist him violated the Americans with Disabilities Act (“ADA”).
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Id. Based on the purported violation, he seeks one trillion dollars in damages, which he describes
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as a “fair settlement.” Id.
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These allegations are too vague and conclusory to state a claim for violation of the ADA.
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To state a claim under Title III of the ADA, plaintiff must allege that “(1)[he] is disabled within
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the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a
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place of public accommodation; and (3) the plaintiff was denied public accommodations by the
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defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir.
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2007). Plaintiff does not claim that he is disabled, nor does he allege that he was denied a public
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accommodation because of a disability. Thus, he fails to allege an ADA claim. Moreover, the
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only remedy under Title III of the ADA is injunctive relief. Ervine v. Desert View Regional
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Medical Center Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (“Damages are not an available
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remedy to individuals under Title III of the ADA; individuals may receive only injunctive
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relief.”). Accordingly, plaintiff could not recover the monetary damages he seeks.
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Accordingly, the complaint must be dismissed for failure to state a claim. However,
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plaintiff is granted leave to file an amended complaint, if he can allege a basis for this court’s
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jurisdiction, as well as a cognizable legal theory against a proper defendant and sufficient facts in
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support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
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(en banc) (district courts must afford pro se litigants an opportunity to amend to correct any
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deficiency in their complaints). Should plaintiff choose to file an amended complaint, the
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amended complaint shall clearly set forth the allegations against defendant and shall specify a
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basis for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s
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claims in “numbered paragraphs, each limited as far as practicable to a single set of
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circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double-
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spaced text on paper that bears line numbers in the left margin, as required by Eastern District of
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California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings
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to delineate each claim alleged and against which defendant or defendants the claim is alleged, as
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required by Rule 10(b), and must 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
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make an amended complaint complete. Local Rule 220 requires that an amended complaint be
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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 complaint 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 must
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be labeled “First 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: November 13, 2017.
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