Picart et al v. Salim et al

Filing 8

ORDER for Reassignment to a District Judge; ORDER terminating 2 , 3 MOTIONS for Leave to Proceed in forma pauperis; REPORT AND RECOMMENDATIONS re Dismissal. Objections due by 6/22/2017. Signed by Magistrate Judge Howard R. Lloyd on 6/5/2017. (hrllc2, COURT STAFF) (Filed on 6/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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FRANCISCO PICART, et al.,
Plaintiffs,

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v.
UDIN SALIM, et al.,
Defendants.

Case No.5:17-cv-02972-HRL
ORDER FOR REASSIGNMENT TO A
DISTRICT JUDGE
ORDER RE IFP APPLICATIONS
REPORT AND RECOMMENDATION
RE DISMISSAL
Re: Dkt. Nos. 2, 3, 4

Francisco Picart and Magali T. Estrada, proceeding pro se, seek to file this lawsuit for

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alleged violation of the Americans with Disabilities Act (ADA), as well as other claims. Although

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Picart’s relationship to Estrada is unclear, the allegations of the complaint indicate that they are

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both Sunnyvale residents. Defendants Udin Salim and Nancy Cheng are identified as California

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residents who own certain real property in Sunnyvale. The complaint also names two Doe

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defendants, who are identified as the tenants or renters of the property owned by Salim and Cheng.

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Picart says that he suffers from Tourette’s Syndrome and has a service dog. He claims that

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defendants harassed him one day while he was washing his car by calling the police to complain

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that Picart “was displaying bizarre behavior and yelling obscene language,” even after Picart says

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he told them about his condition. (Dkt. 1 at p. 5). The complaint further alleges that defendants

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tried to have Picart’s service dog stop barking and “serv[ed] a notice to cure the barking” while the

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dog was in the backyard of Estrada’s private property. (Id. at p. 4). The complaint also seems to

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allege that defendants stood by a fence to videotape the dog, provoking it to bark. Picart and

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Estrada assert four claims for relief: (1) violation of the ADA, (2) negligence, (3) nuisance, and

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(4) “breach of conduct” based on an alleged “breach of the covenant of quiet enjoyment.”1 They

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both also seek leave to proceed in forma pauperis (IFP).
For the reasons to be discussed, this court terminates both IFP applications and

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recommends that (1) the ADA claim be dismissed with prejudice; and (2) the district court decline

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jurisdiction over the remaining claims, and dismiss those claims without prejudice to filing them

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in state court.
A court may authorize the commencement of a civil action in forma pauperis (“IFP”) if the

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United States District Court
Northern District of California

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court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In

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evaluating such an application, the court should “gran[t] or den[y] IFP status based on the

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applicant’s financial resources alone and then independently determin[e] whether to dismiss the

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complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5

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(9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it

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determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

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may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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Picart’s and Estrada’s respective IFP applications are incomplete. Both state that they

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receive some form of Social Security income, but neither one identifies the amounts that they

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receive. Ordinarily, this court would direct Picart and Estrada to re-submit their IFP applications

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to provide complete information. In this instance, however, this court will instead terminate both

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applications because the undersigned concludes that the ADA claim, the sole basis for federal

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jurisdiction, should be dismissed with prejudice.

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Although the complaint does not identify which section of the ADA forms the basis for

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this suit, none appear relevant to this matter. The ADA is comprised of five titles and prohibits

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Although the complaint purports to list five claims for relief, only four are actually specified.
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disability discrimination in employment (Title I, 42 U.S.C. § § 12111-12117); in public services

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by state and local governments (Title II, 42 U.S.C. §§ 12131-12165); in the provision of

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commercial facilities and places of public accommodation by private entities (Title III, 42 U.S.C.

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§§ 12181-12189); and with respect to telecommunications and common carriers (Title IV, 47

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U.S.C. § 225). Title V contains miscellaneous enforcement provisions and exemptions, 42 U.S.C.

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§§ 12201-12213.
There is nothing to suggest that this case arises under Titles I-IV. As for Title V, although

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this court has not found Ninth Circuit or Supreme Court authority addressing the issue, courts in

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this district have held that, based on the remedial structure of the statute, ADA claims cannot be

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brought against individual defendants who do not fall within the scope of Titles I, II, or III of the

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United States District Court
Northern District of California

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ADA. See Rein v. Ainer, No. 14-cv-01698 JD, 2014 WL 5828797 at *3-4 (N.D. Cal., Nov. 10,

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2014) (concluding that the plaintiff could not state an ADA claim against individual defendants

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who were not plaintiff’s employer, a state or local government agency, or owners of a place of

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public service or accommodation) (citing Stern v. California State Archives, 982 F. Supp. 690

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(E.D. Cal. 1997); see also generally Ross v. Independent Living Resource of Contra Costa Cnty.,

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No. C08-00854 TEH, 2010 WL 1266497 at *3 (N.D. Cal., Apr. 1, 2010) (agreeing with the

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majority of courts that have concluded that “while section 503 [of Title V] on its face applies to

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any ‘person,’ its remedies are drawn from provisions that apply only to ‘employer[s]’ and other

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‘covered entit[ies].’”).

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This court finds that this is a legal deficiency that cannot be remedied by amendment and

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therefore recommends that the ADA claim be dismissed with prejudice. Because the ADA claim

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is the sole basis for federal jurisdiction,2 and given the very early stage of this litigation, the

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district court should decline to exercise jurisdiction over the remaining claims. See 28 U.S.C. §

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1367(c)(3) (providing that “[t]he district courts may decline to exercise supplemental jurisdiction

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over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has

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Picart and Estrada do not invoke the court’s diversity jurisdiction, 28 U.S.C. § 1332. And,
because they and one or more of the defendants are California residents, this court finds no basis
for diversity jurisdiction in any event.
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original jurisdiction.”). Those remaining claims should be dismissed without prejudice to filing

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them in state court.

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Because the parties have yet to consent to the undersigned’s jurisdiction, this court

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ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further

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RECOMMENDS that the newly assigned judge (1) dismiss the ADA claim with prejudice; and (2)

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decline to exercise jurisdiction over the remaining claims and dismiss those claims without

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prejudice to filing them in state court.

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United States District Court
Northern District of California

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Any party may serve and file objections to this Report and Recommendation within
fourteen days after being served. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72.
SO ORDERED.
Dated: June 5, 2017

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HOWARD R. LLOYD
United States Magistrate Judge

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5:17-cv-02972-HRL Notice sent by U.S. Mail on 6/5/2017 to:
Francisco Picart
P.O. Box 62301
Sunnyvale, CA 94088
Magali T. Estrada
P.O. Box 62301
Sunnyvale, CA 94088

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United States District Court
Northern District of California

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