Bovier v. Bridgepoint Education et al

Filing 3

ORDER: (1) denying Plaintiff's 2 Motion for Leave to Proceed in forma pauperis; (2) Dismissing in Part Plaintiff's Complaint for Failure to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); (3) granting Plaintiff Leave to Amend her Complaint within 21 Days of Entry of this Order; and (4) Directing Plaintiff to Pay the filing fee on or by 6/28/2017. Signed by Judge Gonzalo P. Curiel on 6/7/2017. (All non-registered users served via U.S. Mail Service) (fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DR. RACQUEL S. BOVIER, c/o EPIPHANY ONEPOINTE TELETHERAPY & ASSOC., LLC, 13 14 15 16 17 18 19 20 21 22 23 Case No.: 3:17-cv-01052-GPC-JMA ORDER: Plaintiff, (1) DENYING PLAINTIFF’S REQUEST TO PROCEED IN FORMA PAUPERIS; v. BRIDGEPOINT EDUCATION/ASHFORD UNIVERSITY, BRIDGEPOINT UNIVERSITY GOVERNING BOARD OF REGENTS, DR. CRAIG MAXWELL, DR. ANTHONY “TONY” FARRELL, DR. DENISE MAXWELL, MR. JOHN GOODISON, DR. IRIS LAFFERTY, DR. TAMECCA FITZPATRICK, DR. JUDY DONOVAN, DR. JACKIE KYGER, MS. HEATHER MASON, DR. ALAN BELCHER, MR. ARMONDO DOMINGUEZ & ASSOC., (2) DISMISSING IN PART PLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii); (3) GRANTING PLAINTIFF LEAVE TO AMEND HER COMPLAINT WITHIN 21 DAYS OF ENTRY OF THIS ORDER; AND 24 25 Defendants. (4) DIRECTING PLAINTIFF TO PAY THE FILING FEE ON OR BY JUNE 28, 2017 26 27 [ECF No. 2.] 28 1 3:17-cv-01052-GPC-JMA 1 On May 23, 2017, Plaintiff Dr. Racquel S. Bovier (“Plaintiff”), proceeding pro se, 2 3 filed a Complaint against Bridgepoint Education c/o Ashford University, Bridgepoint 4 Education University, Dr. Craig Maxwell, Dr. Anthony “Tony” Farrell, Dr. Denise 5 Maxwell, Mr. John Goodison, Dr. Iris Lafferty, Dr. Tamecca Fitzpatrick, Dr. Judy 6 Donovan, Dr. Jackie Kyger, Dr. Alan Belcher, Ms. Heather Mason, and Mr. Armondo 7 Dominguez & Associates (collectively, “Defendants”).1 (Dkt. No. 1.)2 Plaintiff 8 concurrently filed a motion to proceed in forma pauperis (“IFP”). (Dkt. No. 2.) For the 9 reasons set forth below, the Court DENIES Plaintiff’s motion to proceed in forma 10 pauperis, DISMISSES IN PART Plaintiff’s Complaint for failure to state a claim 11 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and GRANTS Plaintiff leave to amend her 12 Complaint within twenty-one (21) days of entry of this Order. Plaintiff must pay the 13 filing fee on or by June 28, 2017 to proceed with her lawsuit. 14 15 DISCUSSION I. 16 Motion for Leave to Proceed In Forma Pauperis All parties instituting any civil action, suit or proceeding in a district court of the 17 United States, except an application for writ of habeas corpus, must pay a filing fee of 18 $400.3 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 19 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 20 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 21 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit 22 demonstrating his inability to pay the filing fee, and the affidavit must include a complete 23 24 25 26 27 28 1 Without any explanation or authority, Plaintiff requests that the Court seal the instant case. (Dkt. No. 1 at 1.) The Court declines to do so. 2 Plaintiff mistakenly conflates the United States District Court with the San Diego Superior Court. (Dkt. No. 1 at 1.) 3 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 3:17-cv-01052-GPC-JMA 1 statement of the plaintiff’s assets. 28 U.S.C. § 1915(a)(1). The facts as to the affiant’s 2 poverty must be stated “with some particularity, definiteness, and certainty.” United 3 States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). When a plaintiff moves to 4 proceed IFP, the court first “grants or denies IFP status based on the plaintiff’s financial 5 resources alone and then independently determines whether to dismiss the complaint” 6 pursuant to 28 U.S.C. § 1915(e)(2) (“§ 1915(e)(2)”). Franklin v. Murphy, 745 F.2d 1221, 7 1226 n.5 (9th Cir. 1984). IFP status may be acquired and lost during the course of 8 litigation. Wilson v. Dir. of Div. of Adult Insts., No. CIV S–06–0791, 2009 WL 311150, 9 at *2 (E.D. Cal. Feb. 9, 2009) (internal citation omitted). 10 Here, Plaintiff has supplied an affidavit in support of her application to proceed in 11 forma pauperis. (Dkt. No. 2.) Plaintiff declares that her average monthly income amount 12 during the past twelve months totaled to approximately $6599. (Id. at 2.) Plaintiff 13 estimates that her income amount expected next month totals to approximately $1759. 14 (Id.) She is presently employed by Grand Canyon University and receives $1500 in gross 15 monthly pay. (Id.) Plaintiff has $2000 in a savings account and $2100 in a checking 16 account. As for assets, Plaintiff owns a $219,000 home, a $4000 BMW, a $12,900 17 Mercedes Benz, a $29,000 Alfa Romeo, and a $25,000 engagement ring. (Id. at 3.) 18 Plaintiff declares that her monthly expenses total $5404.52. (Id. at 5.) 19 In light of Plaintiff’s monthly income, assets, and savings and checking accounts, 20 the Court concludes that Plaintiff can afford the $400 filing fee. Accordingly, the Court 21 DENIES Plaintiff’s request to proceed in forma pauperis. 22 II. 23 Sua Sponte Screening A complaint filed by any person proceeding IFP, pursuant to 28 U.S.C. § 1915(a), 24 is additionally subject to mandatory sua sponte screening. the Court must review 25 complaints filed by all persons proceeding IFP and must sua sponte dismiss any 26 complaint, or any portion of a complaint, which is frivolous, malicious, fails to state a 27 claim, or seeks damages from defendants who are immune. See 28 U.S.C. § 28 3 3:17-cv-01052-GPC-JMA 1 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (§ 2 1915(e)(2)). 3 All complaints must contain “a short and plain statement of the claim showing that 4 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are 5 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 6 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 8 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 9 requires the reviewing court to draw on its judicial experience and common sense.” Id. 10 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 11 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 “When there are well-pleaded factual allegations, a court should assume their 13 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 14 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 15 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 16 allegations of material fact and must construe those facts in the light most favorable to 17 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 18 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”). 19 However, while the court “ha[s] an obligation where the Plaintiff is pro se, 20 particularly in civil rights cases, to construe the pleadings liberally and to afford the 21 Plaintiff the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 22 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 23 “supply essential elements of claims that were not initially pled,” Ivey v. Bd. of Regents of 24 the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 26 Here, Plaintiff’s Complaint barely passes muster. Although unclear, Plaintiff appears to allege that between June and November 2016, Defendants breached various 27 28 4 3:17-cv-01052-GPC-JMA 1 employment agreements,4 (Dkt. No. 1 at 5–6), “fail[ed] to acknowledge” Plaintiff’s 2 disability accommodations, (id. at 5), and wrongfully terminated her in retaliation for her 3 obtaining right to sue letters from the Equal Employment Opportunity Commission 4 (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”), 5 (id. at 1, 5, 10–11). 6 Out of an abundance of caution, the Court declines to dismiss Plaintiff’s contract 7 claims, given Plaintiff’s allegations regarding employment agreements that Defendants 8 breached.5 (See, e.g., Dkt. No. 1 at 5–6, 9–11.) However, as currently pled, Plaintiff’s 9 retaliation claims fail under either Title I of the Americans with Disabilities Act (“ADA”) 10 or Title VII. “To establish a prima facie case of retaliation under the ADA, an employee 11 must show that: (1) he or she engaged in a protected activity; (2) suffered an adverse 12 employment action; and (3) there was a causal link between the two.” Pardi v. Kaiser 13 Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). Similarly, under Title VII, “[t]o make 14 out a prima facie case of retaliation, [plaintiff] must establish that [s]he undertook a 15 protected activity under Title VII, h[er] employer subjected h[er] to an adverse 16 employment action, and there is a causal link between those two events.” Vasquez v. Cty. 17 of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003), as amended (Jan. 2, 2004). Here, 18 Plaintiff has not shown that she engaged in a protected activity that caused the adverse 19 employment action. While she states that Defendants’ wrongful conduct occurred 20 between June 21, 2016 and November 30, 2016, Plaintiff’s right to sue letter from the 21 EEOC is dated March 22, 2017, (Dkt. No. 1 at 15), and Plaintiff’s DFEH written notice 22 indicates that Plaintiff filed a complaint with both the DFEH and EEOC on March 2, 23 2017, (id. at 16). Given that Plaintiff filed a complaint with the DFEH and EEOC and 24 received right to sue letters after the alleged wrongful conduct occurred, Plaintiff has not 25 26 27 28 4 Plaintiff brings the instant contract claims under specific subsections of the Uniform Commercial Code (“U.C.C.”). (Dkt. No. 1 at 6.) The U.C.C. is not a source of federal law, as contract claims are governed by state law. 5 Diversity jurisdiction appears to be proper at this juncture, given that the amount in controversy exceeds $75,000, and that complete diversity seems to exist. 5 3:17-cv-01052-GPC-JMA 1 alleged that her engagement in protected activity caused any adverse employment 2 actions. 3 Finally, while Plaintiff obtained a right to sue letter from the EEOC, Plaintiff has 4 not alleged facts underlying a failure to accommodate claim under the ADA. Plaintiff 5 makes passing reference to Defendants’ “failure to acknowledge the Disability 6 Accommodations” despite awareness of her disabilities, (Dkt. No. 1 at 5), and includes a 7 medical form stating that Plaintiff has generalized anxiety disorder, (id. at 30). “To 8 establish a prima facie case for failure to accommodate under the ADA, [plaintiff] must 9 show that ‘(1) [s]he is disabled within the meaning of the ADA; (2) [s]he is a qualified 10 individual able to perform the essential functions of the job with reasonable 11 accommodation; and (3) [s]he suffered an adverse employment action because of [her] 12 disability.’” Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 13 2012) (quoting Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir.2003)). Beyond 14 conclusory allegations that Defendants failed to accommodate her disability under the 15 ADA, Plaintiff has not alleged sufficient factual allegations, such as what reasonable 16 accommodations she was entitled to, or how Defendants failed to provide such 17 reasonable accommodations. 18 Accordingly, the Court DISMISSES IN PART Plaintiff’s Complaint. 19 Specifically, the Court dismisses Plaintiff’s retaliation claims, whether they are brought 20 under Title VII or the ADA, and dismisses Plaintiff’s failure to accommodate claim under 21 the ADA. If Plaintiff elects to file an Amended Complaint, she should supply well- 22 pleaded factual allegations to state prima facie retaliation and failure to accommodate 23 claims. 24 CONCLUSION 25 For the foregoing reasons, the Court DENIES Plaintiff’s motion to proceed in 26 forma pauperis. Plaintiff must pay the filing fee on or by June 28, 2017 to proceed 27 with her lawsuit. The Court DISMISSES IN PART Plaintiff’s Complaint and 28 GRANTS Plaintiff leave to amend her Complaint within twenty-one (21) days of entry 6 3:17-cv-01052-GPC-JMA 1 of this Order. Plaintiff may file an Amended Complaint which cures all of the 2 deficiencies of pleading described in this Order. If Plaintiff elects to file an Amended 3 Complaint, it must be complete by itself without reference to the original pleading. See 4 S.D. CAL. CIV. LR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 5 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 6 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 7 leave to amend which are not re-alleged in an amended pleading may be “considered 8 waived if not repled.”). 9 Plaintiff is directed to take note that failure to pay the requisite filing fee by the 10 Court’s deadline may result in dismissal of her lawsuit for failure to prosecute. See Fed. 11 R. Civ. P. 4(m). 12 13 IT IS SO ORDERED. Dated: June 7, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:17-cv-01052-GPC-JMA

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