Johnson v. City and County of San Francisco

Filing 26

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 11 . (Illston, Susan) (Filed on 9/27/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL W. JOHNSON,

Case No. 16-cv-02913-SI

Plaintiff,
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v.

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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United States District Court
Northern District of California

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CITY AND COUNTY OF SAN
FRANCISCO,

Re: Dkt. No. 11

Defendant.

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Defendant’s motion for judgment on the pleadings is scheduled for a hearing on October 7,

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2016. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for

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resolution without oral argument. For the reasons set forth below, the Court GRANTS defendant’s

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motion and GRANTS leave to amend the complaint. The amended complaint must be filed no

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later than October 14, 2016.

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BACKGROUND

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Plaintiff, who is acting in pro per, filed this case against the City and County of San

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Francisco on February 26, 2015, in the Superior Court of California in the County of San

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Francisco. Dkt. No. 1-1. The original complaint, which was a state form complaint, alleged claims

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for wrongful termination and intentional infliction of emotional distress. In an attachment to the

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original complaint, plaintiff alleged that he was “wrongfully terminated because he filed a

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California worker’s compensation claim after being wounded by a 22 caliber rifle while working

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for the City and County of San Francisco, California on 6-17-2011.”

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On September 4, 2015, the City filed a demurrer to plaintiff’s complaint, and on January 6,

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2016, the state court sustained the City’s demurrer without leave to amend. Dkt. Nos. 1-2, 1-6. On

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March 15, 2016, the City filed an ex parte application for entry of judgment. Dkt. No. 1-8. The

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court denied the City’s application, and instead granted plaintiff leave to amend his complaint.

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On April 20, 2016, plaintiff filed a first amended complaint (“FAC”) alleging a claim

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under the Americans with Disabilities Act. Dkt. No. 1-17. On May 31, 2016, the City filed a

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notice of removal pursuant to 28 U.S.C. §§ 1441 and 1446. Dkt. No. 1. Now before the Court is

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defendant’s motion for judgment on the pleadings.

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LEGAL STANDARD
“After the pleadings are closed but within such time as not to delay the trial, any party may

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move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is

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United States District Court
Northern District of California

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proper when the moving party clearly establishes on the face of the pleadings that no material

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issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). “For

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purposes of the motion, the allegations of the non-moving party must be accepted as true, while

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the allegations of the moving party which have been denied are assumed to be false.” Id.

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Motions under Rule 12(c) are “functionally identical” to motions under Rule 12(b)(6).

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Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.

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2011). Thus, to survive a motion for judgment on the pleadings, a plaintiff must allege “enough

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facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up

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to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of specifics,” a

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plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.”

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Twombly, 550 U.S. at 555, 570. The court is not required to accept as true “allegations that are

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merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead

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Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). In ruling on a motion to dismiss, courts

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may consider only “the complaint, materials incorporated into the complaint by reference, and

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matters of which the court may take judicial notice.” Metzler Inv. GMBH v. Corinthian Colleges,

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Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).

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If the court dismisses the complaint, it must then decide whether to grant leave to amend.

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The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)

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(citations and internal quotation marks omitted).

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DISCUSSION

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Defendant argues that the FAC fails to state a claim under the Americans with Disabilities

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United States District Court
Northern District of California

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Act because the FAC does not allege any facts in support of that claim. In response, plaintiff

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asserts that the FAC meets federal pleading standards and that defendant is aware of the

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underlying facts in this case. Plaintiff’s opposition also includes some facts that are not contained

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in the FAC, including the allegation that plaintiff was shot while performing work as a painter for

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the City and that he was then diagnosed with posttraumatic stress disorder. Plaintiff’s opposition

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also alleges that plaintiff lost his job “as a result of this work-related injury.” Dkt. No. 24 at 3.

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The Court concludes that the FAC fails to state a claim under the Americans with

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Disabilities Act. The FAC is a state form complaint that contains no attachments or statement of

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facts in support of plaintiff’s claim. The FAC does not allege how the City violated the ADA (or

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any other law). Although plaintiff includes some facts in his opposition to defendant’s motion, the

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Court’s review is limited to the face of the complaint. Moreover, the facts included in the

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opposition are, on their own, insufficient to state a claim because plaintiff does not allege what the

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City did to violate the law.

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In light of plaintiff’s pro se status, the Court will grant plaintiff leave to amend the

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complaint. If plaintiff wishes to amend the complaint, plaintiff must set forth the following in the

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amended complaint: (1) the specific actions by the City that plaintiff is challenging; (2) the dates

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those actions occurred; (3) the legal basis for each claim (for example, plaintiff must identify the

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statute that is the basis of his claim); and (4) the facts in support of each claim.
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For assistance in complying with this order, plaintiff may wish to consult a manual the

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Court has adopted to assist pro se litigants in presenting their case. This manual, and other free

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information, is available online at: http://cand.uscourts.gov/proselitigants.

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contact the Federal Pro Bono Project’s Help Desk—a free service for pro se litigants— by calling

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[phone] to make an appointment to have any remaining questions answered.

Plaintiff may also

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CONCLUSION

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For the reasons set forth above, the Court GRANTS defendant’s motion and GRANTS

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plaintiff leave to amend the complaint. The amended complaint must be filed no later than

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October 14, 2016.

United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: September 27, 2016
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SUSAN ILLSTON
United States District Judge

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