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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HUSSAIN D. VAHIDALLAH, Case No.: 3:16-cv-01980-GPC-AGS Plaintiff, 12 13 v. 14 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. 15 16 [ECF No. 17.] 17 18 Before the Court is Plaintiff Hussain D. Vahidallah’s Second Amended Complaint 19 (“SAC”) against Defendant AT&T (“Defendant”). (Dkt. No. 17.) Based on the 20 following reasons and the applicable law, the Court DISMISSES Plaintiff’s SAC with 21 prejudice. 22 BACKGROUND 23 Plaintiff, proceeding pro se, filed his original Complaint against Defendant on 24 August 5, 2016. (Dkt. No. 1.) On August 11, 2016, the Court granted Plaintiff’s motion 25 to proceed in forma pauperis (“IFP”). (Dkt. No. 4.) On October 5, 2016, the Court 26 conducted an initial screening of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) 27 and dismissed Plaintiff’s Complaint for failure to state a claim. (Dkt. No. 11.) The Court 28 1 3:16-cv-01980-GPC-AGS 1 informed Plaintiff of the deficiencies in his Complaint and granted Plaintiff leave to 2 amend his Complaint within 45 days of the Court’s Order. (Id.) 3 Plaintiff filed his FAC, nunc pro tunc to October 31, 2016. (Dkt. No. 14.) On 4 December 12, 2016, the Court conducted an initial screening of Plaintiff’s FAC pursuant 5 to 28 U.S.C. § 1915(e)(2) and dismissed Plaintiff’s FAC for failure to state a claim. (Dkt. 6 No. 15.) The Court again informed Plaintiff of the deficiencies in his Complaint and 7 granted Plaintiff leave to amend his Complaint within 45 days of the Court’s Order. (Id.) 8 Plaintiff filed his SAC, nunc pro tunc to January 10, 2017. (Dkt. No. 17.) 9 10 DISCUSSION I. Initial Screening Pursuant to 28 U.S.C. § 1915(e)(2) 11 A. Legal Standard 12 Notwithstanding Plaintiff’s IFP status or the payment of any filing fees, the Court 13 must review complaints filed by all persons proceeding IFP and must sua sponte dismiss 14 any complaint, or any portion of a complaint, which is frivolous, malicious, fails to state 15 a claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 16 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (§ 17 1915(e)(2)). 18 All complaints must contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 20 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 21 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 22 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 23 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 24 requires the reviewing court to draw on its judicial experience and common sense.” Id. 25 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 26 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 27 28 “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.” 2 3:16-cv-01980-GPC-AGS 1 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 2 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 3 allegations of material fact and must construe those facts in the light most favorable to 4 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 5 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 6 However, while the court “ha[s] an obligation where the petitioner is pro se, 7 particularly in civil rights cases, to construe the pleadings liberally and to afford the 8 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 9 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 10 “supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of 11 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 12 B. Plaintiff’s SAC 13 Plaintiff alleges that AT&T conspired together with Mr. Jan Goldsmith, the City 14 Attorney of San Diego, and United States District Judge Michael M. Anello. (Dkt. No. 15 17 at 1, 3.) Plaintiff asserts that Mr. Goldsmith and AT&T, pursuant to a conspiracy, 16 discriminated against him and denied him unspecified “public help.” (Id. at 2–3.) 17 Plaintiff alleges that the federal court determined his disability twenty years ago. (Id. at 18 2.) Plaintiff alleges that he has had phone service with AT&T for forty years and has 19 been on California Lifeline for many years, and that because AT&T partnered with 20 Lifeline, AT&T and Mr. Goldsmith had knowledge that Plaintiff is disabled. (Id. at 2.) 21 Plaintiff avers that “[i]n fact, my complaints and problems are with Mr. Jan I. 22 Goldsmith and his commissions,” alleging, inter alia, that the City shut off his water, and 23 that his caregivers spied on him and worked for Mr. Goldsmith and his commissions. (Id. 24 at 5.) Plaintiff asserts without explanation that he has evidence that county employees of 25 San Diego discriminated against him. (Id. at 8.) Plaintiff also states without further 26 elaboration that he has 1,000,000 pages and three books of evidence regarding 27 misrepresentations by Mr. Goldsmith. (Id. at 3.) Notably, Plaintiff does not explain how 28 any of the alleged misconduct by the City, Mr. Goldsmith, and county employees relates 3 3:16-cv-01980-GPC-AGS 1 2 to AT&T. Plaintiff alleges that he holds a Ph.D. in psychology and in psychopharmacology as 3 well. (Id. at 8.) Plaintiff attaches to his SAC many documents that are seemingly 4 unrelated to his allegations. (Id. at 9–30.) 5 C. Plaintiff’s Claims 6 Plaintiff asserts that AT&T entered into a conspiracy with Mr. Goldsmith in 7 violation of 42 U.S.C. §§ 1985 and 1986. (Id. at 1.) However, the Supreme Court has 8 stated that 9 10 11 12 “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.” 13 United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 14 835 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101 (1971)). Here, beyond 15 conclusory assertions, Plaintiff avers no factual assertions raising a plausible inference of 16 racial or other invidiously discriminatory animus. Plaintiff’s claim pursuant to §§ 1985 17 and 1986 accordingly fails. 18 Plaintiff asserts a claim for misrepresentation, without any supporting factual 19 assertions showing that AT&T’s conduct was fraudulent. (Dkt. No. 17 at 4.) The 20 elements of fraud require “(a) misrepresentation (false representation, concealment, or 21 nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to 22 induce reliance; (d) justifiable reliance; and (e) resulting damage.” Small v. Fritz 23 Companies, Inc., 65 P.3d 1255, 1258 (Cal. 2003) (internal citation and quotation marks 24 omitted). Plaintiff supplies no factual assertions regarding fraud by AT&T. 25 Plaintiff brings claims under Title II and Title III of the Americans with 26 Disabilities Act (“ADA”). (Dkt. No. 17 at 2–3, 7–8.) To prove that a public program or 27 service violated Title II of the ADA, a plaintiff must show: (1) he is a “qualified 28 individual with a disability”; (2) he was either excluded from participation in or denied 4 3:16-cv-01980-GPC-AGS 1 the benefits of a public entity’s services, programs, or activities, or was otherwise 2 discriminated against by the public entity; and (3) such exclusion, denial of benefits, or 3 discrimination was by reason of his disability. 42 U.S.C. § 12132; Duvall v. Cty. of 4 Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 5 2001). As a threshold matter, although Plaintiff alleges that he was denied the benefits of 6 participating in California Lifeline, a state program for which AT&T is allegedly a 7 “partner,” Title II does not apply to private entities like AT&T. See 42 U.S.C. § 12131 8 (defining “public entity” as “any State or local government,” “any department, agency, 9 special purpose district, or other instrumentality of a State or States or local government,” 10 and “the National Railroad Passenger Corporation, and any commuter authority”); 11 Wilkins-Jones v. Cty. of Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012) (holding 12 that while the Ninth Circuit has not yet expressly ruled on the issue, the statutory 13 language of Title II does not apply to private entities that are government contractors); 14 Stewart v. California Dep’t of Educ., 493 F. App’x 889, 891 (9th Cir. 2012) (citing 15 Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1180 (9th Cir. 1999), for the 16 proposition that “private entities are not subject to Title II of the ADA”). Moreover, 17 beyond a conclusory statement that the federal court determined that he was disabled 18 twenty years ago, Plaintiff provides no factual assertions allowing a plausible inference 19 that he is currently disabled within the meaning of the ADA. Plaintiff also provides no 20 factual assertions, beyond stating that Defendant knew he was disabled, showing that he 21 was discriminated against by reason of his disability. Accordingly, Plaintiff fails to state 22 a claim under Title II of the ADA. 23 To prevail on a Title III discrimination claim, the plaintiff must show that (1) he is 24 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, 25 leases, or operates a place of public accommodation; and (3) the plaintiff was denied 26 public accommodations by the defendant because of his disability. 42 U.S.C. §§ 27 12182(a)-(b); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Plaintiff 28 merely alleges, without more, that Defendant is a private entity that owns and operates 5 3:16-cv-01980-GPC-AGS 1 AT&T as a public accommodation. (Dkt. No. 17 at 2.) Plaintiff further alleges 2 conclusorily that he was denied public accommodation by Defendant because of his 3 disability. (Dkt. No. 17 at 3.) And as explained above, Plaintiff does not assert 4 nonconclusory facts leading to a plausible inference that he is currently disabled within 5 the meaning of the ADA. These threadbare recitals of the elements of a Title III claim 6 under the ADA do not suffice. Accordingly, Plaintiff fails to state a claim for violation of 7 his rights under Title III of the ADA. 8 Plaintiff alleges a claim under Title VII of the Civil Rights Act of 1964 but does 9 not do more than cite a smattering of case law regarding the statute. (Dkt. No. 17 at 6.) 10 Under Title VII, an employer may not “fail or refuse to refer for employment, or 11 otherwise to discriminate against, any individual because of his race, color, religion, sex, 12 or national origin, or to classify or refer for employment any individual on the basis of his 13 race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2). Plaintiff alleges 14 no facts regarding employment by Defendant or Defendant’s employment practices. 15 Accordingly, Plaintiff fails to state a claim under Title VII. 16 Plaintiff seeks relief under 42 U.S.C. § 1981. (Dkt. No. 17 at 7.) 42 U.S.C. § 1981 17 gives all citizens of the United States “the same right in every State or Territory to make 18 and enforce contracts . . . as is enjoyed by white citizens.” The statute has been 19 interpreted to prohibit discriminatory government interference with private contracts as 20 well as purely private discrimination in contracts. Addisu v. Fred Meyer, Inc., 198 F.3d 21 1130, 1137 (9th Cir. 2000). Proof of intent to discriminate is necessary to establish a 22 violation of § 1981. Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1313 (9th Cir. 23 1992). A plaintiff must at least allege facts that would support an inference that 24 defendants intentionally and purposefully discriminated against him. Id. Here, Plaintiff 25 does not allege nonconclusory facts supporting an inference of intentional discrimination. 26 Nor does Plaintiff allege facts regarding discriminatory interference with his right to 27 make and enforce contracts. Plaintiff does not state a claim under § 1981. 28 Plaintiff asserts a 42 U.S.C. § 1983 claim against AT&T, a private entity. (Dkt. 6 3:16-cv-01980-GPC-AGS 1 No. 17 at 5–7.) A claim under § 1983 requires: “(1) a violation of rights protected by the 2 Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 3 person (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th 4 Cir. 1991) (internal quotation marks omitted). There is a presumption that “private 5 parties are not generally acting under color of state law.” Price v. State of Hawaii, 939 6 F.2d 702, 707–08 (9th Cir. 1991). Where a private party conspires with state officials to 7 deprive others of constitutional rights, the private party is acting under color of state law. 8 See Tower v. Glover, 467 U.S. 914, 920 (1984). However, “[t]o prove a conspiracy 9 between the state and private parties under [§] 1983, the [plaintiff] must show an 10 agreement or meeting of the minds to violate constitutional rights. To be liable, each 11 participant in the conspiracy need not know the exact details of the plan, but each must at 12 least share the common objective of the conspiracy.” United Steelworkers of Am. v. 13 Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (en banc) (internal citations 14 and internal quotation marks omitted). Furthermore, conclusory allegations do not state a 15 claim of conspiracy. Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 16 (9th Cir. 2003). Plaintiff does little more than assert that the conduct complained of 17 occurred under color of state law. (Dkt. No. 17 at 7.) While Plaintiff summarily 18 concludes that Defendant is in a conspiracy with Mr. Goldsmith, the City Attorney of San 19 Diego, Plaintiff does not assert any nonconclusory assertions regarding AT&T’s conduct 20 that renders his claim for relief plausible. Moreover, Plaintiff’s § 1983 claim fails for the 21 additional reason that Plaintiff fails to allege a violation of a federal right. Accordingly, 22 Plaintiff fails to state a claim under § 1983. 23 Where amendment would be futile, dismissal may be ordered with prejudice. See 24 Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). Moreover, “where the plaintiff has 25 previously been granted leave to amend and has subsequently failed to add the requisite 26 particularity to its claims, the district court’s discretion to deny leave to amend is 27 particularly broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th 28 Cir. 2009), as amended (Feb. 10, 2009) (internal citation, quotation marks, alteration 7 3:16-cv-01980-GPC-AGS 1 omitted). Although Plaintiff has amended his Complaint twice, each subsequent 2 amendment has failed to cure the deficiencies in his claims. Having previously granted 3 Plaintiff leave to amend twice to no avail, the Court declines to grant Plaintiff leave to 4 further amend his SAC. Concluding that amendment would be futile, the Court orders 5 that this case be dismissed with prejudice. 6 7 CONCLUSION For the foregoing reasons, the Court DISMISSES WITH PREJUDICE Plaintiff’s 8 SAC for failure to state a claim upon which relief can granted pursuant to 28 U.S.C. §§ 9 1915(e)(2)(B). 10 11 IT IS SO ORDERED. Dated: January 31, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-01980-GPC-AGS

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