George v. SDCERS San Diego City Employee's Retirement System

Filing 4

ORDER Granting Application to Proceed In Forma Pauperis, Denying Request for Appointment of Counsel and Dismissing Complaint for Failure to State a Claim Upon Which Relief Can Be Granted. Signed by Judge Cathy Ann Bencivengo on 6/12/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARK GEORGE,

Case No.: 17-CV-1165-CAB-AGS
Plaintiff,

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v.

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ORDER GRANTING APPLICATION
TO PROCEED IN FORMA
PAUPERIS, DENYING REQUEST
FOR APPOINTMENT OF COUNSEL
AND DISMISSING COMPLAINT
FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF
CAN BE GRANTED

SAN DIEGO CITY EMPLOYEES'
RETIREMENT SYSTEM,

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Defendants.

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This matter is before the Court on Plaintiff’s application for leave to proceed in
forma pauperis (“IFP”) [Doc. No. 2] and his request for appointment of counsel [Doc. No.
3]. As discussed below, the application to proceed IFP is granted, the request to proceed
IFP is denied, and the complaint is dismissed for failure to state a claim upon which relief
can be granted.
Motion to Proceed In Forum Pauperis
Pursuant to 28 U.S.C. § 1915(a), a court may authorize the commencement of a suit
without prepayment of fees if the plaintiff submits an affidavit, including a statement of all
his or her assets, showing that he or she is unable to pay filing fees. Plaintiff has submitted
an affidavit that sufficiently shows he lacks the financial resources to pay filing fees. See
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S.D. Cal. CivLR 3.2(d). Accordingly, the Court hereby GRANTS Plaintiff’s Motion to

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Proceed In Forma Pauperis.

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Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)

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A complaint filed by any person proceeding in forma pauperis pursuant to 28 U.S.C.

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§1915(a) is subject to mandatory and sua sponte review and dismissal by the court to the

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extent it is “frivolous, malicious, failing to state a claim upon which relief can be granted,

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or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. §

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1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ([T]he provisions of 28

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U.S.C. § 1915(e)(2)(b) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127

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(9th Cir. 2000) (“[S]ection 1915(e) not only permits but requires a district court to dismiss

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an in forma pauperis complaint that fails to state a claim.”); see also Barren v. Harrington,

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152 F.3d 1193, 1194 (9th Cir. 1998) (analogizing § 1915(e)(2) to Rule 12(b)(6) for

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purposes of determining if the district court’s sua sponte dismissal of an IFP complaint for

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failure to state a claim was subject to de novo review on appeal.)

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Plaintiff’s complaint consists of a one sentence allegation that “Defendant San Diego

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Employees’ Retirement System violated the Americans With Disabilities Act [ADA] when

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it denied Plaintiff’s application for disability retirement from the City of San Diego Fire

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Rescue Department, knowing that Plaintiff properly qualified for disability retirement,

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having been found unable to perform the duties of his position by reason of becoming

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permanently incapacitated due to injuries suffered in the line of duty.” This statement is

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replete with legal conclusions but lacks factual allegations which, if accepted as true, state

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a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Moreover, to

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the extent Plaintiff alleges he is totally disabled or a former employee, he cannot sue under

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Title I of the ADA. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112

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(9th Cir. 2000) (“[S]omeone who is totally disabled cannot sue under Title I’s unambiguous

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provisions. . . . Title I also unambiguously excludes former employees.”). To the extent

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Plaintiff is contesting a finding that is not entitled to disability benefits because he is not
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disabled, it is unclear how such a finding would constitute a denial of benefits “by reason

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of the plaintiff’s disability” as would be required to state a claim under Title II of the ADA.

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See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); see also Zimmerman v. Or.

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Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) (holding that ADA claims concerning

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employment discrimination may not be asserted under Title II, which covers government

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entities). Finally, to the extent Plaintiff is suing Defendant in its capacity as administrator

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of Plaintiff’s former employer’s disability insurance policy, it is not a proper defendant in

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a lawsuit under Title III of the ADA. See Weyer, 198 F.3d at 1113-14.

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In light of the foregoing, the Court DISMISSES Plaintiff’s Complaint for failing to
state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

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Motion to Appoint Counsel

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Plaintiff has filed a Motion to Appoint Counsel. In light of the Court’s decision to

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sua sponte dismiss the Complaint, Plaintiff’s request for appointment of counsel is

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DENIED without prejudice.

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Conclusion

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For the reasons discussed above, the Court:

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1. GRANTS Plaintiff’s application to proceed IFP. [Doc No. 2.]

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2. DENIES without prejudice Plaintiff’s request for appointment of counsel. [Doc.

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No. 3.]
3. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which relief
can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
4. GRANTS Plaintiff leave to file an amended complaint on or before July 27,
Plaintiff’s Amended Complaint must be complete in itself without

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2017.

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reference to his original pleading. Defendants not named and any claims not re-

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alleged in the Amended Complaint will be considered waived. See S.D. Cal.

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CivLR 15.1; Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“an

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‘amended complaint supersedes the original, the latter being treated thereafter as

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non-existent.’”); Rasidescu v. Midland Credit Mgmt., Inc., 435 F. Supp. 2d 1090,
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1099 (S.D. Cal. 2006) (“Claims in the original complaint which are not realleged

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in the amended complaint are no longer before the court and are deemed

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waived.”).

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It is SO ORDERED.
Dated: June 12, 2017

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