Tolbert v. City & County of San Francisco Department of Public Health et al

Filing 22

ORDER by Judge James Donato re 13 , 14 Motions to Dismiss. (jdlc1S, COURT STAFF) (Filed on 5/6/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KIM E. TOLBERT,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-00810-JD
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
CITY & COUNTY OF SAN FRANCISCO
DEPARTMENT OF PUBLIC HEALTH, et
al.,

Re: Dkt. Nos. 13, 14

Defendants.
Plaintiff Kim Tolbert filed this employment discrimination lawsuit as a pro se litigant on

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February 18, 2016. Dkt. No. 1. She is now represented by counsel. See Dkt. No. 15. Defendants

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City and County of San Francisco (Department of Public Health) and Barbara Garcia have moved

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to dismiss the complaint. Dkt. Nos. 13, 14. The Court found this matter suitable for decision

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without oral argument pursuant to Civil Local Rule 7-1(b), Dkt. No. 21, and dismisses the

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complaint with leave to amend.

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Plaintiff’s complaint contains five claims for relief, brought under (1) Title II of the

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Federal Civil Rights Act of 1964, (2) 42 U.S.C. Section 1981, (3) 42 U.S.C. Section 1985, (4)

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California’s Unruh Civil Rights Act, and (5) CCSF Civil Service Rule 103. Dkt. No. 1.

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Defendant Barbara Garcia moves to dismiss on the ground that she was not properly

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served with a complete copy of the complaint. Dkt. No. 13 at 5. In response, plaintiff has not

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shown that service on Garcia was proper under Federal Rule of Civil Procedure 4. See, e.g., Sears

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v. Cnty. of Monterey, No. C 11-01876 SBA, 2012 WL 368688, at *14 (N.D. Cal. Feb. 3, 2012)

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(“Once service of process has been challenged by the defendant, plaintiff bears the burden of

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proving valid service in accordance with Rule 4,” citing Brockmeyer v. May, 383 F.3d 798, 801

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(9th Cir. 2004)). On amendment of the complaint, as ordered below, plaintiff is directed to serve

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Garcia in accordance with Rule 4 and file a proof of service.
Both defendants move to dismiss the complaint for failure to state a claim. Dkt. Nos. 13,

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14. In response, plaintiff seeks leave to amend the complaint “to pursue claims under Title VII, 42

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U.S.C. Section 1981, and, 42 U.S.C. Section 1983 under the Equal Protection Clause and First

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Amendment.” Dkt. No. 16 at 4. The Court grants leave to amend for these claims only.

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Plaintiff’s claims under (1) Title II of the Federal Civil Rights Act of 1964, (3) 42 U.S.C. § 1985,

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(4) California’s Unruh Civil Rights Act, and (5) CCSF Civil Service Rule 103 are dismissed with

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prejudice.

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United States District Court
Northern District of California

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Plaintiff will file her amended complaint by Friday, May 20, 2016.
IT IS SO ORDERED.
Dated: May 6, 2016

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JAMES DONATO
United States District Judge

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