Gray v. Apple, Incorporated et al

Filing 90

ORDER DENYING 70 MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND GRANTING 64 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Amended Pleadings due by 5/31/2017. Signed by Judge Haywood S. Gilliam, Jr. on 5/3/2017. (ndrS, COURT STAFF) (Filed on 5/3/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERELL GRAY,
Plaintiff,

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v.

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APPLE INCORPORATED, et al.,
Defendants.

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United States District Court
Northern District of California

Case No.16-cv-04421-HSG
ORDER DENYING MOTION TO
DISMISS FOR FAILURE TO
PROSECUTE AND GRANTING
MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM
Re: Dkt. No. 64, 70

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Pending before this Court are Defendant Apple Incorporated’s motion to dismiss the

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complaint for failure to prosecute, Dkt. No. 70, and motion to dismiss for failure to state a claim.

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See Dkt. No. 64. For the reasons detailed below, the Court DENIES the motion to dismiss for

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failure to prosecute and GRANTS the motion to dismiss for failure to state a claim.

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I.

BACKGROUND

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A.

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Plaintiff Terrell Gray alleges several claims of racial discrimination under 42 U.S.C.

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§§ 1981, 1982, 1985(3), as well as negligent hiring, training and supervision, and intentional

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infliction of emotional distress against Defendant.

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Factual Background

Plaintiff alleges that in December 2012, Plaintiff bought an Apple computer at BestBuy.

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Dkt. No. 4 (“FAC”) ¶ 18. When it arrived with a cracked screen, Plaintiff contacted Apple’s

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customer service who advised him to return it to a local Apple store. Id. 20–21. On December 30,

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2012, Plaintiff went to an Apple store in Berkeley, California to do so. Id. ¶ 22.

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An Apple employee was “unresponsive” to Plaintiff and refused to honor the return. Id.

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¶¶ 24–27. Plaintiff attributes this refusal to the employee’s unfounded belief that the computer

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was stolen. Id. ¶¶ 27–28. Police officers approached, asking the employee if he wanted Plaintiff

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to leave. Id. ¶¶ 30–32. The employee said yes. Id. ¶ 32. The police officers then escorted

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Plaintiff from the store, handcuffed him, and took him to a local hospital. Id. ¶¶ 33–35. Plaintiff

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further alleges on information and belief that a white customer purchased or returned Apple

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products around the same time, without incident. Id. ¶¶ 37.
Two days later, Plaintiff returned to the same store to return his computer. Id. ¶¶ 40. The

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police were called again and arrested Plaintiff. Id. ¶ 41. Plaintiff was incarcerated and then

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transferred to a local hospital. Id. ¶ 42–44. Eventually an unidentified female successfully

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returned and exchanged Plaintiff’s computer on his behalf. Id. ¶ 46. Plaintiff asserts that these

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incidents reflect Apple’s company-wide practice “of racially profiling and targeting its customers
of color.” Id. ¶ 37. Plaintiff alleges that because of these incidents he suffered psychological

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United States District Court
Northern District of California

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trauma that required several months of in-patient treatment. Id. ¶ 45.

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B.

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Plaintiff initially filed this action on December 23, 2013, in the District of New Jersey,

Procedural Posture & Request to Withdraw as Counsel

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where Plaintiff is a resident. Although Plaintiff named two individuals, Kelley Dorgan and Greg

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Hopson, as well as the City of Berkeley and the Berkeley Police Department in this action,

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Plaintiff only served Apple, Inc.
In August 2016, the case was transferred to the Northern District of California because the

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underlying events occurred in Berkeley, California. Since that time, Plaintiff has endeavored, with

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the assistance of his New Jersey counsel, to find and retain new, local counsel. Plaintiff then

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decided to proceed pro se. He signed a motion to “substitute counsel” in December 2016,

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withdrawing his New Jersey attorneys, Javonna C. Baker and Tracey S. Cosby, as his counsel and

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agreeing to represent himself pro se. See Dkt. No. 86. The Court held a hearing on March 17,

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2017, confirming that Plaintiff is now pro se and that has endeavored to represent himself since

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December 2016, filing a pro se opposition to Defendant’s motion to dismiss for failure to

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prosecute on December 14, 2016. See Dkt. No. 75.

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II.

MOTIONS TO DISMISS

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Defendant filed both a motion to dismiss the complaint for failure to prosecute, Dkt. No.
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70, and a motion to dismiss for failure to state a claim, Dkt. No. 64. The Court addresses each in

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turn.

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A.

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Under Federal Rule of Civil Procedure 41(b), the Court may dismiss a case for failure to

Failure to Prosecute

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prosecute if supported by a showing of unreasonable delay. Omstead v. Dell, Inc., 594 F.3d 1081,

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1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The

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Court must weigh several factors: (1) the public’s interest in expeditious resolution of litigation;

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(2) the Court’s need to manage its docket; (3) the risk of prejudice to Defendant; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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United States District Court
Northern District of California

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sanctions. Id.
Here, Defendant points to deadlines Plaintiff has missed and the age of this case as reasons

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to dismiss for failure to prosecute. Although the Court acknowledges that this case has advanced

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slowly, much of the delay is attributable to Plaintiff’s attempt to retain new counsel in the

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Northern District of California. However, Plaintiff has since decided to proceed pro se and he is

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now advancing his case. Since signing a substitution of counsel document withdrawing his New

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Jersey counsel from the case, Plaintiff has filed a lengthy letter brief defending this case against

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Defendant’s motions to dismiss. See Dkt. No. 75. Accordingly, the Court DENIES the motion to

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dismiss for failure to prosecute. The Court cautions Plaintiff that he is now representing himself

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and will be held accountable for all Court deadlines moving forward.

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B.

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Under Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss a complaint if it

Failure to State a Claim

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

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dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard

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requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant

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has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not

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require “heightened fact pleading of specifics,” Twombly, 550 U.S. at 570, a plaintiff must provide

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“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
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will not do,” id. at 555. Rather, the plaintiff must allege facts sufficient to “raise a right to relief

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above the speculative level.” Id.

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“Pleadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). For that reason, “a

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pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation omitted).

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Further, “[i]n civil rights cases where the plaintiff appears pro se, the court must construe the

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pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim–Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

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Here, the amended complaint contains only conclusory allegations that are insufficient to
support any of Plaintiff’s claims against Defendant. The Court accordingly GRANTS Defendant’s

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Northern District of California

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motion to dismiss.

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1.

Sections 1981 and 1982

Section 1981 protects the right of all persons “to make and enforce contracts, to sue, be

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parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security

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of persons and property as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). Section 1982

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similarly protects the right of all citizens “to inherit, purchase, lease, sell, hold, and convey real

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and personal property.” 42 U.S.C. § 1982. In order to state a claim under either section, Plaintiff

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must allege that Defendant intentionally discriminated against Plaintiff on the basis of his race.

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Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989) (Section 1981); W. Coast Theater Corp. v.

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City of Portland, 897 F.2d 1519, 1527 (9th Cir. 1990) (Section 1982). Mere conclusory

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allegations of intentional discrimination will not suffice. Iqbal, 556 U.S. at 678. Rather, Plaintiff

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must allege some facts that plausibly give rise to an inference that race was the reason for

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Defendant’s actions. See Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1301, 1313 (9th

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Cir.1992), abrogated on other grounds by Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038,

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1055 (9th Cir. 2008) (“Proof of intent to discriminate is necessary to establish a violation of

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section 1981.”); cf. Evans, 869 F.2d at 1345 (finding sufficient “overt acts coupled with some

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direct evidence that the defendants’ conduct was motivated by racial animus”).

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Here, the amended complaint lacks any facts suggesting that Apple or its employees
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intended to or actually did discriminate against Plaintiff. Instead Plaintiff generically concludes,

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without any factual support, that Defendant has “corporate-wide policies and practices” that

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“requir[e] security personnel [to] target people of color for surveillance as soon as they enter

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Apple stores.” FAC ¶ 15; see also FAC ¶ 36. Plaintiff also points out that a white customer either

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returned or purchased Apple merchandise during the same time Plaintiff attempted to return his

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computer, FAC ¶ 36, and that ultimately someone else successfully returned Plaintiff’s computer.

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Id. ¶ 46. Yet Plaintiff does not allege sufficient detail about either of these transactions to

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plausibly support an inference that Plaintiff’s race triggered Defendant’s treatment of him.

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Plaintiff has not alleged sufficient facts to support the conclusion that Defendant intentionally

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Northern District of California

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discriminated against Plaintiff on the basis of his race.
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Section 1985

To state a cause of action under § 1985(3), Plaintiff must allege: (1) a conspiracy; (2) to

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deprive a person of equal privileges under the law; (3) an act by one of the conspirators in

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furtherance of the conspiracy; and (4) a resulting injury. Gillespie v. Civiletti, 629 F.2d 637, 641

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(9th Cir. 1980).

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To satisfy the first element of a § 1985 conspiracy claim, the conspiring parties “must have

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reached a unity of purpose or common design and understanding, or a meeting of the minds in an

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unlawful arrangement.” Gilbrook v. City of Westminister, 177 F.3d 839, 856 (9th Cir. 1999)

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(quotation omitted). This requires that “each participant . . . at least share the common objective

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of the conspiracy.” Id. (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d

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1539, 1514 (9th Cir. 1989) (en banc)) (quotation omitted). Failure to allege the existence of a

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conspiracy may be grounds for dismissal. See e.g., Olsen v. Idaho State Bd. of Med., 363 F.3d

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916, 929–30 (9th Cir. 2004) (affirming a motion to dismiss § 1985 claim where the plaintiff failed

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to discuss any agreement between the defendants).

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To satisfy the second element of a § 1985 conspiracy claim, a plaintiff must both identify a

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legally protected right and demonstrate that “deprivation of that right [was] motivated by some

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racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Sever v. Alaska Pulp

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Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). Failure to allege “a racially or class-based,
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invidiously discriminatory animus behind the actions” at issue may serve as the basis for

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dismissal. See e.g., Gillespie, 629 F.2d at 641.
Plaintiff has done little more than repeat the elements of a § 1985 claim. Like the §§ 1981

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and 1982 claims, Plaintiff has failed to provide factual support for his conclusion that Defendant

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discriminated against him due to his race in violation of his constitutional rights. Sprewell v.

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Golden State Warriors, 266 F.3d 979, 989 (9th Cir.), amended on denial of reh’g, 275 F.3d 1187

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(9th Cir. 2001) (“[A]n indispensable element of a claim under 42 U.S.C. § 1985(3) is some racial,

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or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator’s

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action . . . .”) (quotation omitted).
This claim also fails because Plaintiff has not sufficiently alleged that Defendant conspired

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Northern District of California

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with anyone to violate his civil rights. Plaintiff generically alleges that “there has been a corrupt

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agreement between and among all Defendants and others to deprive African-American/Black [sic]

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of the equal protection of the laws and/or the equal privileges and immunities under the laws.”

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FAC ¶ 66. From what the Court can discern, Plaintiff suggests that Defendant has conspired with

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local police departments to “disproportionately” accuse and arrest non-white customers of

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shoplifting and credit card fraud. See id. ¶ 67. The complaint, however, provides no detail about

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the agreement (or even any plausible basis for concluding that such an agreement exists).

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Plaintiff’s complaint does not even specifically identify the parties to the alleged conspiracy.

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These allegations are insufficient to show the existence of a conspiracy and to state a claim under

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§ 1985.

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3.

State Law Claims

Plaintiff also brought two state law claims against Defendant for negligent hiring and
intentional infliction of emotional distress. Both claims fail.

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Plaintiff’s negligent hiring claim fails because the complaint does not allege any facts that

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Defendant knew or should have known that its employees might discriminate against a customer.

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Under California law, claims for negligent supervision, training, and hiring require Plaintiff to

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allege that an employer “knew or should have known that hiring the employee created a particular

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risk or hazard and that particular harm materializes.” Phillips v. TLC Plumbing, Inc., 172 Cal.
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App. 4th 1133 (Cal. Ct. App. 2009) (quotation omitted). As discussed above, Plaintiff has not

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even plausibly alleged that any employee actually discriminated against Plaintiff, let alone that

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Defendant’s policies and practices permitted such discrimination.

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Finally, Plaintiff’s intentional infliction of emotional distress claim fails because the

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amended complaint does not allege that Defendant engaged in any outrageous conduct. To state a

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claim for intentional infliction of emotional distress, Plaintiff must show: (1) Defendant engaged

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in outrageous conduct; (2) with intent or reckless disregard of the probability of causing emotional

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distress; (3) Plaintiff suffered severe or extreme emotional distress; and (4) such distress was

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caused by Defendant’s outrageous conduct. Huntingdon Life Scis., Inc. v. Stop Huntingdon
Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228, 1259 (Cal. Ct. App. 2005). To be considered

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Northern District of California

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“outrageous,” Defendant’s conduct “must be so extreme as to exceed all bounds of that usually

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tolerated in a civilized society.” Id. As currently pled, Defendant did not accept the computer

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because an employee had an “unfounded suspicion that the computer had been stolen.” FAC ¶ 28.

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That suspicion, even if inaccurate, would also explain why Defendant assented to the police

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escorting Plaintiff out of the store. This is not the kind of “outrageous” conduct that is necessary

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to support an intentional infliction of emotional distress argument.

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III.

CONCLUSION

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For the foregoing reasons, the Court DISMISSES Plaintiff’s complaint with leave to

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amend. The Court notes that the other defendants in this case have not been served. Under

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Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days after the

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complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss

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the action without prejudice against that defendant or order that service be made within a specified

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time.” As it has now been over three years since the complaint was filed, the Court dismisses the

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action as to Kelley Dorgan, Greg Hopson, the City of Berkeley, and the Berkeley Police

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Department. See Dkt. No. 64-1 at 10 (Defendant moving to dismiss unserved defendants for

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failure to comply with Federal Rule of Civil Procedure 4).

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If Plaintiff elects to file a second amended complaint, he must do so by no later than May

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31, 2017. Failure to file an amended complaint by this deadline may result in the dismissal of the
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action without leave to amend. The Court further advises Plaintiff that this action may be subject

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to dismissal without leave to amend if he fails to cure the identified deficiencies. See Telesaurus

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VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). In any amended complaint, Plaintiff

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should clearly set forth each legal claim and the facts supporting such claims.

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IT IS SO ORDERED.
Dated: 5/3/2017

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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