Levy v. Cumulus Media Inc.

Filing 4

REFERRAL FOR REASSIGNMENT with Recommendation to Dismiss. Signed by Judge Nathanael Cousins on 1/17/2012. (Attachments: # 1 Certificate of service)(lmh, COURT STAFF) (Filed on 1/18/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Case No. 11-cv-06616 NC

MARC OLIN LEVY,

REFERRAL FOR
REASSIGNMENT WITH
RECOMMENDATION TO
DISMISS

Plaintiff,

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v.

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Re: Dkt. No. 3
CUMULUS MEDIA INC.,
Defendant.

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Plaintiff Marc Olin Levy moves to proceed in forma pauperis (“IFP”) under 28

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U.S.C. § 1915. Dkt. No. 3. As neither party has not consented to its jurisdiction under 28

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U.S.C. § 636(c), this Court does not have authority to make a dispositive ruling in this

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case. Accordingly, the Court orders that this case be REASSIGNED to a District Judge.

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The Court RECOMMENDS that Plaintiff’s Complaint be dismissed in accordance with

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28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be

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granted.

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I. STANDARD OF REVIEW

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Any person seeking to commence a civil suit in federal district court must pay a

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filing fee of $350. 28 U.S.C. § 1914(a). A district court has the authority to waive this

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fee for any person who shows in an affidavit that he or she is unable to pay it. 28 U.S.C.

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§ 1915(a)(1). A district court may dismiss the complaint of an IFP applicant at any time
Case No. 11-cv-06616 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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if it determines that the complaint fails to state a claim upon which relief may be granted.

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28 U.S.C. § 1915(e)(2)(B)(ii). Dismissal under the IFP statute “does not prejudice the

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filing of a paid complaint making the same allegations.” Denton v. Hernandez, 504 U.S.

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25, 34 (1992).
General rules for pleading complaints are governed by the Federal Rules of Civil

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Procedure. A pleading stating a claim for relief must include “a short and plain statement

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of the claim showing the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The purpose

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of the complaint is to give the defendant fair notice of the claims against him and the

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grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506,

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512 (2002). A complaint must state the elements of the plaintiff’s claim in a plain and

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succinct manner. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.

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1984). As the Supreme Court noted, “Rule 8 does not require detailed factual allegations,

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but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (internal

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quotation marks and citations omitted). Though pro se pleadings are held to “less

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stringent standards” than pleadings drafted by attorneys, conclusory and vague allegations

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do not support a cause of action. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.

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1982).

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II. DISCUSSION

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Levy has established that he is unable to pay the filing fee required to file a

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complaint. See IFP Application, Dkt. No. 3. Levy’s Complaint, however, fails to state a

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claim upon which relief may be granted. In his Complaint, Levy claims that a radio

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announcer and employee of Defendant Cumulus Media Inc. made an “anti-semitic slur,”

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which offended Levy. Complaint, Dkt. No. 1. Specifically, he alleges that the use of the

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phrase “T-Brew,” referencing NFL football player Tim Tebow, in connection with

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commentary on the Last Supper was an anti-semitic reference. Id. He claims the “racist,

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anti-semitic statement” was personally offensive to him. See id.; see also Civil Cover

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Sheet, Dkt. No. 1-1. Plaintiff seeks money damages for the alleged offensive statements.
Case No. 11-cv-06616 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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Plaintiff asserts the basis for his claim is “federal hate crimes law.” Dkt. No. 1-1.

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Plaintiff, however, fails to plead any statute or theory of common law that makes the

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alleged act of “hate” actionable. Nor does the Complaint contain factual allegations from

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which it could be inferred that defendant acted with a discriminatory purpose. See Iqbal,

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129 S. Ct. at 1949 (respondent’s complaint failed to assert factual allegation sufficient to

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plausibly suggest petitioners’ discriminatory state of mind). Even a liberal construction

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of a complaint cannot supply essential elements of a claim that were not initially pled.

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Ivey, 673 F.2d at 268. Because the Complaint is devoid of any factual allegations to

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support Levy’s assertion that he was the victim of a hate crime or suffered racial or

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religious discrimination, the Court recommends that Plaintiff’s Complaint be dismissed.

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IT IS SO ORDERED.
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DATED: January 17, 2012
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____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 11-cv-06616 NC
REFERRAL FOR REASSIGNMENT
WITH RECOMMENDATION TO DISMISS

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