Vahidallah v. AT&T

Filing 18

ORDER DISMISSING With Prejudice Plaintiff's Second Amended Complaint for Failure to State a Claim. Signed by Judge Gonzalo P. Curiel on 1/31/17.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HUSSAIN D. VAHIDALLAH,

Case No.: 3:16-cv-01980-GPC-AGS
Plaintiff,

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v.

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ORDER DISMISSING WITH
PREJUDICE PLAINTIFF’s SECOND
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)

AT&T,
Defendant.

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[ECF No. 17.]

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Before the Court is Plaintiff Hussain D. Vahidallah’s Second Amended Complaint

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(“SAC”) against Defendant AT&T (“Defendant”). (Dkt. No. 17.) Based on the

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following reasons and the applicable law, the Court DISMISSES Plaintiff’s SAC with

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prejudice.

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BACKGROUND

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Plaintiff, proceeding pro se, filed his original Complaint against Defendant on

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August 5, 2016. (Dkt. No. 1.) On August 11, 2016, the Court granted Plaintiff’s motion

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to proceed in forma pauperis (“IFP”). (Dkt. No. 4.) On October 5, 2016, the Court

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conducted an initial screening of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)

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and dismissed Plaintiff’s Complaint for failure to state a claim. (Dkt. No. 11.) The Court

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informed Plaintiff of the deficiencies in his Complaint and granted Plaintiff leave to

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amend his Complaint within 45 days of the Court’s Order. (Id.)

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Plaintiff filed his FAC, nunc pro tunc to October 31, 2016. (Dkt. No. 14.) On

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December 12, 2016, the Court conducted an initial screening of Plaintiff’s FAC pursuant

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to 28 U.S.C. § 1915(e)(2) and dismissed Plaintiff’s FAC for failure to state a claim. (Dkt.

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No. 15.) The Court again informed Plaintiff of the deficiencies in his Complaint and

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granted Plaintiff leave to amend his Complaint within 45 days of the Court’s Order. (Id.)

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Plaintiff filed his SAC, nunc pro tunc to January 10, 2017. (Dkt. No. 17.)

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DISCUSSION
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Initial Screening Pursuant to 28 U.S.C. § 1915(e)(2)

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A. Legal Standard

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Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the Court

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must review complaints filed by all persons proceeding IFP and must sua sponte dismiss

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any complaint, or any portion of a complaint, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See 28 U.S.C. §

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1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (§

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1915(e)(2)).

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All complaints must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining

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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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The “mere possibility of misconduct” falls short of meeting this plausibility standard.

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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

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“When there are well-pleaded factual allegations, a court should assume their
veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

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(“[W]hen determining whether a complaint states a claim, a court must accept as true all

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allegations of material fact and must construe those facts in the light most favorable to

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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

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However, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not

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“supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of

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the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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B. Plaintiff’s SAC

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Plaintiff alleges that AT&T conspired together with Mr. Jan Goldsmith, the City

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Attorney of San Diego, and United States District Judge Michael M. Anello. (Dkt. No.

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17 at 1, 3.) Plaintiff asserts that Mr. Goldsmith and AT&T, pursuant to a conspiracy,

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discriminated against him and denied him unspecified “public help.” (Id. at 2–3.)

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Plaintiff alleges that the federal court determined his disability twenty years ago. (Id. at

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2.) Plaintiff alleges that he has had phone service with AT&T for forty years and has

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been on California Lifeline for many years, and that because AT&T partnered with

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Lifeline, AT&T and Mr. Goldsmith had knowledge that Plaintiff is disabled. (Id. at 2.)

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Plaintiff avers that “[i]n fact, my complaints and problems are with Mr. Jan I.

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Goldsmith and his commissions,” alleging, inter alia, that the City shut off his water, and

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that his caregivers spied on him and worked for Mr. Goldsmith and his commissions. (Id.

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at 5.) Plaintiff asserts without explanation that he has evidence that county employees of

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San Diego discriminated against him. (Id. at 8.) Plaintiff also states without further

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elaboration that he has 1,000,000 pages and three books of evidence regarding

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misrepresentations by Mr. Goldsmith. (Id. at 3.) Notably, Plaintiff does not explain how

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any of the alleged misconduct by the City, Mr. Goldsmith, and county employees relates
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to AT&T.
Plaintiff alleges that he holds a Ph.D. in psychology and in psychopharmacology as

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well. (Id. at 8.) Plaintiff attaches to his SAC many documents that are seemingly

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unrelated to his allegations. (Id. at 9–30.)

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C. Plaintiff’s Claims

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Plaintiff asserts that AT&T entered into a conspiracy with Mr. Goldsmith in

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violation of 42 U.S.C. §§ 1985 and 1986. (Id. at 1.) However, the Supreme Court has

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stated that

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“the [statutory] language requiring intent to deprive of equal protection, or equal
privileges and immunities, means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators’
action. The conspiracy, in other words, must aim at a deprivation of the equal
enjoyment of rights secured by the law to all.”

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United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825,

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835 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101 (1971)). Here, beyond

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conclusory assertions, Plaintiff avers no factual assertions raising a plausible inference of

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racial or other invidiously discriminatory animus. Plaintiff’s claim pursuant to §§ 1985

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and 1986 accordingly fails.

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Plaintiff asserts a claim for misrepresentation, without any supporting factual

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assertions showing that AT&T’s conduct was fraudulent. (Dkt. No. 17 at 4.) The

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elements of fraud require “(a) misrepresentation (false representation, concealment, or

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nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to

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induce reliance; (d) justifiable reliance; and (e) resulting damage.” Small v. Fritz

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Companies, Inc., 65 P.3d 1255, 1258 (Cal. 2003) (internal citation and quotation marks

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omitted). Plaintiff supplies no factual assertions regarding fraud by AT&T.

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Plaintiff brings claims under Title II and Title III of the Americans with

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Disabilities Act (“ADA”). (Dkt. No. 17 at 2–3, 7–8.) To prove that a public program or

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service violated Title II of the ADA, a plaintiff must show: (1) he is a “qualified

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individual with a disability”; (2) he was either excluded from participation in or denied
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the benefits of a public entity’s services, programs, or activities, or was otherwise

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discriminated against by the public entity; and (3) such exclusion, denial of benefits, or

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discrimination was by reason of his disability. 42 U.S.C. § 12132; Duvall v. Cty. of

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Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11,

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2001). As a threshold matter, although Plaintiff alleges that he was denied the benefits of

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participating in California Lifeline, a state program for which AT&T is allegedly a

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“partner,” Title II does not apply to private entities like AT&T. See 42 U.S.C. § 12131

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(defining “public entity” as “any State or local government,” “any department, agency,

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special purpose district, or other instrumentality of a State or States or local government,”

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and “the National Railroad Passenger Corporation, and any commuter authority”);

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Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012) (holding

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that while the Ninth Circuit has not yet expressly ruled on the issue, the statutory

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language of Title II does not apply to private entities that are government contractors);

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Stewart v. California Dep’t of Educ., 493 F. App’x 889, 891 (9th Cir. 2012) (citing

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Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1180 (9th Cir. 1999), for the

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proposition that “private entities are not subject to Title II of the ADA”). Moreover,

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beyond a conclusory statement that the federal court determined that he was disabled

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twenty years ago, Plaintiff provides no factual assertions allowing a plausible inference

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that he is currently disabled within the meaning of the ADA. Plaintiff also provides no

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factual assertions, beyond stating that Defendant knew he was disabled, showing that he

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was discriminated against by reason of his disability. Accordingly, Plaintiff fails to state

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a claim under Title II of the ADA.

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To prevail on a Title III discrimination claim, the plaintiff must show that (1) he is

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disabled within the meaning of the ADA; (2) the defendant is a private entity that owns,

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leases, or operates a place of public accommodation; and (3) the plaintiff was denied

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public accommodations by the defendant because of his disability. 42 U.S.C. §§

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12182(a)-(b); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Plaintiff

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merely alleges, without more, that Defendant is a private entity that owns and operates
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AT&T as a public accommodation. (Dkt. No. 17 at 2.) Plaintiff further alleges

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conclusorily that he was denied public accommodation by Defendant because of his

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disability. (Dkt. No. 17 at 3.) And as explained above, Plaintiff does not assert

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nonconclusory facts leading to a plausible inference that he is currently disabled within

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the meaning of the ADA. These threadbare recitals of the elements of a Title III claim

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under the ADA do not suffice. Accordingly, Plaintiff fails to state a claim for violation of

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his rights under Title III of the ADA.

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Plaintiff alleges a claim under Title VII of the Civil Rights Act of 1964 but does

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not do more than cite a smattering of case law regarding the statute. (Dkt. No. 17 at 6.)

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Under Title VII, an employer may not “fail or refuse to refer for employment, or

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otherwise to discriminate against, any individual because of his race, color, religion, sex,

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or national origin, or to classify or refer for employment any individual on the basis of his

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race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2). Plaintiff alleges

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no facts regarding employment by Defendant or Defendant’s employment practices.

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Accordingly, Plaintiff fails to state a claim under Title VII.

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Plaintiff seeks relief under 42 U.S.C. § 1981. (Dkt. No. 17 at 7.) 42 U.S.C. § 1981

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gives all citizens of the United States “the same right in every State or Territory to make

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and enforce contracts . . . as is enjoyed by white citizens.” The statute has been

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interpreted to prohibit discriminatory government interference with private contracts as

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well as purely private discrimination in contracts. Addisu v. Fred Meyer, Inc., 198 F.3d

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1130, 1137 (9th Cir. 2000). Proof of intent to discriminate is necessary to establish a

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violation of § 1981. Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1313 (9th Cir.

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1992). A plaintiff must at least allege facts that would support an inference that

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defendants intentionally and purposefully discriminated against him. Id. Here, Plaintiff

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does not allege nonconclusory facts supporting an inference of intentional discrimination.

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Nor does Plaintiff allege facts regarding discriminatory interference with his right to

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make and enforce contracts. Plaintiff does not state a claim under § 1981.

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Plaintiff asserts a 42 U.S.C. § 1983 claim against AT&T, a private entity. (Dkt.
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No. 17 at 5–7.) A claim under § 1983 requires: “(1) a violation of rights protected by the

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Constitution or created by federal statute, (2) proximately caused (3) by conduct of a

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person (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th

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Cir. 1991) (internal quotation marks omitted). There is a presumption that “private

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parties are not generally acting under color of state law.” Price v. State of Hawaii, 939

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F.2d 702, 707–08 (9th Cir. 1991). Where a private party conspires with state officials to

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deprive others of constitutional rights, the private party is acting under color of state law.

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See Tower v. Glover, 467 U.S. 914, 920 (1984). However, “[t]o prove a conspiracy

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between the state and private parties under [§] 1983, the [plaintiff] must show an

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agreement or meeting of the minds to violate constitutional rights. To be liable, each

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participant in the conspiracy need not know the exact details of the plan, but each must at

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least share the common objective of the conspiracy.” United Steelworkers of Am. v.

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Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (en banc) (internal citations

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and internal quotation marks omitted). Furthermore, conclusory allegations do not state a

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claim of conspiracy. Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161

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(9th Cir. 2003). Plaintiff does little more than assert that the conduct complained of

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occurred under color of state law. (Dkt. No. 17 at 7.) While Plaintiff summarily

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concludes that Defendant is in a conspiracy with Mr. Goldsmith, the City Attorney of San

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Diego, Plaintiff does not assert any nonconclusory assertions regarding AT&T’s conduct

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that renders his claim for relief plausible. Moreover, Plaintiff’s § 1983 claim fails for the

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additional reason that Plaintiff fails to allege a violation of a federal right. Accordingly,

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Plaintiff fails to state a claim under § 1983.

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Where amendment would be futile, dismissal may be ordered with prejudice. See

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Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). Moreover, “where the plaintiff has

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previously been granted leave to amend and has subsequently failed to add the requisite

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particularity to its claims, the district court’s discretion to deny leave to amend is

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particularly broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th

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Cir. 2009), as amended (Feb. 10, 2009) (internal citation, quotation marks, alteration
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omitted). Although Plaintiff has amended his Complaint twice, each subsequent

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amendment has failed to cure the deficiencies in his claims. Having previously granted

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Plaintiff leave to amend twice to no avail, the Court declines to grant Plaintiff leave to

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further amend his SAC. Concluding that amendment would be futile, the Court orders

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that this case be dismissed with prejudice.

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CONCLUSION
For the foregoing reasons, the Court DISMISSES WITH PREJUDICE Plaintiff’s

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SAC for failure to state a claim upon which relief can granted pursuant to 28 U.S.C. §§

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1915(e)(2)(B).

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IT IS SO ORDERED.
Dated: January 31, 2017

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