Conetta v. San Diego Unified Port District, Incorporated et al

Filing 7

ORDER Granting in part and Denying in part 5 Defendants' Motion to Dismiss: Plaintiff is granted LEAVE TO AMEND the complaint. If Plaintiff chooses to file an amended complaint, he must do so no later than August 23, 2010. Defendants shall res pond to the amended complaint within the time set forth in Federal Rule of Civil Procedure 15(a)(3). If Plaintiff chooses not to file an amended complaint, Defendants shall respond within the same period of time calculated from August 23, 2010. Signed by Judge M. James Lorenz on 7/26/2010. (All non-registered users served via U.S. Mail Service)(mjj)

Conetta v. San Diego Unified Port District, Incorporated et al

Doc. 7

1 2 3 4 5 6 7 8 9 10 11 MICHAEL PATRICK CONETTA, 12 13 v. 14 SAN DIEGO UNIFIED PORT DISTRICT, INCORPORATED, et al. 15 Defendants. 16 17 18 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 09cv1903-L(RBB) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff, proceeding pro se, brought this action for violation of the Americans with

19 Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA") and civil rights violations against the San 20 Diego Unified Port District, Incorporated, San Diego Unified Port District Attorney Office, San 21 Diego Unified Port District Harbor Police Department and San Diego Unified Port District 22 Harbor Police Mooring Office (collectively the "Port"). The Port filed a motion to dismiss 23 pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff did not file an opposition. For 24 the reasons which follow, the Port's motion is GRANTED IN PART AND DENIED IN 25 PART. Plaintiff is granted LEAVE TO AMEND. 26 Plaintiff alleged he had a mobility impairment and that the Port's architectural and

27 transportation barriers prevented him from accessing the programs, services and public facilities 28 of the Port. In addition, he alleged that on August 31, 2007 he suffered a medical emergency
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1 while in transit from one of the Port's anchorages to another. He communicated with the Sharp 2 Hospital in Coronado and arranged for medical personnel to meet him. Plaintiff requested the 3 Port to grant him disabled access to the hospital, but San Diego Harbor Police refused. He then 4 requested for his vessel to stay put due to a medical emergency, but was instead cited for lacking 5 an anchoring permit and threatened that his vessel would be seized. Plaintiff further alleged the 6 Port criminally prosecuted him in retaliation for requesting disabled access. Plaintiff filed a 7 complaint for ADA violations and violation of his civil rights. 8 The Port moved to dismiss under Rule 12(b)(6).1 A Rule 12(b)(6) motion tests the

9 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a 10 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 11 allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires 12 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 13 will not do. Factual allegations must be enough to raise a right to relief above the speculative 14 level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets 15 and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must 16 assume the truth of all factual allegations and must construe them in the light most favorable to 17 the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). 18 Legal conclusions need not be taken as true merely because they are cast in the form of factual 19 allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. 20 Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and 21 unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit 22 Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998). Plaintiff is proceeding pro se and asserting civil 23 rights violations. The court's duty to liberally construe a pro se litigant's pleadings is therefore 24 particularly important. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 25 The Port argues that Plaintiff failed to adequately allege the elements of an ADA

26 discrimination claim. Title II of the ADA provides in pertinent part that, "no qualified 27 28 This order does not address any issues which were not briefed by the Port, including, but not limited to, the legal sufficiency of Plaintiff's retaliation claim under the ADA.
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1 individual with a disability shall, by reason of such disability, be excluded from participation in 2 or be denied the benefits of the services, programs, or activities of a public entity, or be 3 subjected to discrimination by any such entity." 42 U.S.C. § 12132. Accordingly, to state a 4 claim, a plaintiff must allege four elements: 5 6 7 8 (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his disability.

9 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (internal quotation marks, 10 brackets and citation omitted). 11 Plaintiff alleged that he had a mobility impairment. (See, e.g., Compl. at 3.) The Port

12 does not dispute that this is sufficient to allege a disability. In addition, Plaintiff alleged that on 13 August 31, 2007 he suffered a pulmonary embolism, including heart-palpitations and breathing 14 difficulties. (Id. at 6, 7.) The Port argues, without citing to any legal authority, that Plaintiff's 15 "illness" on August 31, 2007 is not a disability as defined under the ADA, especially if it was 16 temporary in nature. The ADA defines disability in broad terms and includes, among other 17 things, "[a]ny physiological disorder or condition . . . affecting one or more . . . body systems 18 [including] respiratory . . . [and] cardiovascular." 28 C.F.R. § 35.104. The definition further 19 includes "diseases and conditions." Id. It does not have a temporal element. See id. 20 Accordingly, the Port's argument is rejected. 21 The Port further argues that Plaintiff was not "otherwise qualified to participate in or

22 receive the benefit of some public entity's services, programs, or activities" because of a State 23 court "stay away" order, which is attached to the Port's motion as Exhibit E. Generally, a court 24 may not consider material beyond the complaint in ruling on a Rule 12(b)(6) motion. Intri-Plex 25 Tech., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007); see also Fed. R. Civ. Proc. 26 12(d). "However, a court may take judicial notice of matters of public record without converting 27 a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not 28 subject to reasonable dispute." Id. (internal quotation marks and citations omitted). The Port's
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1 Exhibit E consists entirely of minutes of the San Diego County Superior Court. The court 2 therefore takes judicial notice of the exhibit. According to the minutes, on April 29, 2009 3 Plaintiff was ordered to stay away from a Port-District-maintained anchorage for one year. 4 Because this order was issued after Plaintiff's complaints to the Port in the spring and summer of 5 2007 about the lack of accessibility to Port facilities and after the medical emergency incident on 6 August 31, 2007, it does not support the Port's argument. To the contrary, it appears that the 7 proceedings reflected in the minutes form the basis of Plaintiff's retaliation claim. 8 The Port also contends that Plaintiff did not allege that he was excluded from the Port's

9 services and benefits and that he did not allege he was excluded due to his disability. Plaintiff 10 alleged that the Port's "architectural and transportation barriers in certified `ADA' docks located 11 at `A-5 Anchorage[,]' `Glorietta Bay[,'] and at `A-2 La Playa Cove' in San Diego California . . . 12 prevent persons including plaintiff, who has a mobility impairment" from accessing the Port's 13 facilities. (Compl. at 3.) It can also reasonably be inferred from the Complaint that the Port's 14 place of business is inaccessible to mobility impaired individuals due to the architectural and 15 transportation barriers. (See id.) In addition, Plaintiff alleged that the Port refused disabled 16 access to "paid marina, and paid moorings by public or private docks." (Id. at 6.) 17 The Port maintains that Plaintiff was not discriminated against based on his disability

18 because the same rules apply to all. This is not a sufficient argument to overcome an ADA 19 claim. "[F]acially neutral policies may violate the ADA when such policies unduly burden 20 disabled persons, even when such policies are consistently enforced." McGary, 386 F.3d at 21 1265; see also id. at 1265-68. 22 The Port next argues that Plaintiff has been able to avail of its services because he rented 23 a mooring buoy and obtained anchoring permits.2 This argument does not address the allegation 24 25 This argument is based in part on the Port's Exhibit C, a Maritime Moorage Contract between San Diego Mooring Company and Plaintiff. The Port has not provided any 26 legal basis for its request to judicially notice this document, which is neither referenced in the int nor appears to be a public record. See 27 complaAccordingly, the Port'smatter offor judicial notice ofIntri-Plex Tech., Inc., 499 F.3d at as 1052. request this exhibit is denied. However, indicated in the body of this order, the moorage contract is irrelevant to this case as presented in 28 the complaint.
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1 regarding the lack of access to the Port's place of business, lack of access to the Coronado Sharp 2 Hospital and refusal to permit Plaintiff to stay put while waiting for medical personnel, and is 3 therefore insufficient to warrant dismissal. The allegations in the complaint, with respect to 4 access barriers and the August 31, 2007 medical emergency go beyond mooring buoy rental and 5 anchorage permits. 6 Nevertheless, the complaint is too vague to meet the federal pleading requirements.

7 Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim 8 showing that the pleader is entitled to relief." Although this does not require that the complaint 9 include all facts necessary to carry the plaintiff's burden, it must allege sufficient facts to show 10 plausible grounds to infer the existence of a claim for relief. Al-Kidd v. Ashcroft, 580 F.3d 949, 11 977 (9th Cir. 2009). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief 12 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 13 of action will not do." Bell Atl. Corp., 550 U.S. at 555. 14 The complaint essentially tracks the four elements of an ADA claim; however, it does not

15 provide any factual allegations to identify the architectural and transportation barriers, indicate 16 what Port facilities Plaintiff was precluded from accessing and how he was precluded from 17 accessing them. Although the court must liberally construe the pleadings of a pro se litigant, "a 18 pro se litigant is not excused from knowing the most basic pleading requirements." Am. Ass'n of 19 Neuropathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000). Because the 20 complaint does not contain sufficient factual allegations in support of the ADA claim based on 21 architectural and transportation barriers, the Port's motion to dismiss this claim is GRANTED. 22 Next, the court must consider whether Plaintiff should be granted leave to amend. See

23 Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 2004). 24 Rule 15 advises the court that leave to amend shall be freely given when justice so requires. 25 Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, 26 LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal quotation marks and citation 27 omitted). 28 In the absence of any apparent or declared reason -- such as undue delay, bad faith
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or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 182 (1962). Of the foregoing factors, the "prejudice to the opposing party . . . carries the greatest weight." Eminence Capital, 316 F.3d at 1052. Although the Port moved for dismissal without leave to amend, it has not indicated whether or how it would be prejudiced. Plaintiff is therefore granted LEAVE TO AMEND the ADA claim to the extent it is based on mobility impaired access to Port facilities due to architectural and transportation barriers. With respect to the August 31, 2007 medical emergency incident, Plaintiff alleged that he requested the Harbor Police for disabled access to the Coronado Sharp Hospital, which was denied. (Compl. at 6-7.) The Harbor Police then approached his boat and told him he should "just float around the bay, until his doctors arrive" because he did not have an anchorage permit. (Id. at 7.) After having been informed of the emergency, the Harbor Police refused Plaintiff's request for the vessel to stay put and wait for medical help,3 but instead issued a citation and threatened to seize the vessel. (Id. at 7, 8.) This is a sufficient factual basis to allege that Plaintiff was denied access to public facilities and excluded from public services and benefits due to his disability. Accordingly, the Port's motion to dismiss the ADA claim to the extent it is based on the medical emergency incident on August 31, 2007 is DENIED. Last, the Port is seeking dismissal of the complaint to the extent it is based on a civil rights violation pursuant to 42 U.S.C. Section 1983. Two essential elements must be met for a section 1983 claim: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege or immunity protected by the Constitution or the laws of the United States. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988).
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Although the Port makes much of the factual disagreement whether Plaintiff had an anchorage permit to stay put, it does not explain how this is relevant under the ADA. If 27 Plaintiff did not have the permit, the claim is that the Port refused the reasonable accommodation letting him stay put while medical personnel was 28 of rt's refusal to accommodate merely appears more on the way. If Plaintiff had the permit, the Po egregious.
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To the extent Plaintiff is relying on the ADA to show a statutory violation in support of a

2 section 1983 claim, the claim is precluded. See Vinson v. Thomas, 288 F.3d 1145, 1155-56 (9th 3 Cir. 2002). However, this does not mean that a plaintiff cannot state an ADA claim and a 4 section 1983 claim based on the same factual allegations, so long as the section 1983 claim is 5 based on a violation of constitutional rights or rights under a federal law other than the ADA. 6 Plaintiff did not identify any statutory or constitutional basis for his section 1983 claim. 7 Accordingly, the Port's motion to dismiss it is GRANTED. However, Plaintiff is granted 8 LEAVE TO AMEND because it appears that he may be able to state a section 1983 claim. For 9 example, with respect to the August 31, 2007 medical emergency incident, Plaintiff may be able 10 to base his claim on a violation of the IVth Amendment or the substantive due process provision 11 of the XIVth Amendment. 12 13 Accordingly, it is hereby ORDERED as follows: 1. Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART.

14 The motion to dismiss is denied to the extent it seeks dismissal of the ADA claim based on the 15 August 31, 2007 medical emergency incident. The motion is granted in all other respects. 16 17 2. Plaintiff is granted LEAVE TO AMEND the complaint. 3. If Plaintiff chooses to file an amended complaint, he must do so no later than August

18 23, 2010. Defendants shall respond to the amended complaint within the time set forth in 19 Federal Rule of Civil Procedure 15(a)(3). If Plaintiff chooses not to file an amended complaint, 20 Defendants shall respond within the same period of time calculated from August 23, 2010. 21 4. Plaintiff's amended complaint, if any is filed, must be complete in itself without

22 reference to the initial complaint. See Civ. Loc. Rule 15.1. Defendants not named and all claims 23 not re-alleged in the amended complaint will be deemed to have been waived. See King v. 24 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 25 IT IS SO ORDERED.

26 DATED: July 26, 2010 27 28 M. James Lorenz United States District Court Judge
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