White v. Peek et al

Filing 3

ORDER Denying as Moot 2 Plaintiff's Motion for Leave to Proceed in Forma Pauperis; Dismissing the Complaint Without Prejudice. The Court DENIES as moot White's IFP motion, (Doc. No. 2), and DISMISSES White's complaint with leave to amend, (Doc. No. 1). White must file both (1) a renewed IFP motion and (2) an amended complaint by 2/15/2019 or risk having his case dismissed with prejudice for failure to prosecute. Signed by Judge Anthony J. Battaglia on 1/18/2019. (All non-registered users served via U.S. Mail Service)(acc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

TODD WHITE,

Case No.: 18-cv-0580-AJB-AGS
Plaintiff,

12
13
14

ORDER:
(1) DENYING PLAINTIFF’S
MOTION TO FILE IN FORMA
PAUPERIS AS MOOT, (Doc. No. 2);
and
(2) DISMISSING THE COMPLAINT
WITHOUT PREJUDICE

v.
KENNETH W. PEEK,
Defendant.

15
16
17
18

The Court reviews pro se plaintiff Todd White’s complaint under 28 U.S.C.

19

§ 1915(e), as required when a plaintiff files a motion to proceed in forma pauperis (“IFP”).

20

(Doc. Nos. 1, 2.) Under this mandatory screening, the Court finds that White’s complaint

21

does not sufficiently state a claim for relief. Thus, the Court DENIES as moot White’s IFP

22

motion, (Doc. No. 2), and DISMISSES his complaint with leave to amend.

23

I.

MOTION TO PROCEED IN FORMA PAUPERIS

24

White moves to proceed IFP under 28 U.S.C. § 1915. All parties instituting any civil

25

action, suit, or proceeding in a district court of the United States, except an application for

26

writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action

27

may proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff is

28

granted leave to proceed IFP under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d
1
18-cv-0580-AJB-AGS

1

1176, 1177 (9th Cir. 1999). All actions sought to be filed IFP under § 1915 must be

2

accompanied by an affidavit, signed by the applicant under penalty of perjury, that includes

3

a statement of all assets which shows inability to pay initial fees or give security.

4

CivLR 3.2.a.

5

Here, White states in his application that over the twelve-month period preceding

6

his complaint he, on average, earned $1,000 per month in employment wages and received

7

$195 per month in public-assistance. (Doc. No. 2 at 1–2.) During that same twelve-month

8

period, White’s monthly expenses were $650 for rent and $195 for food, leaving $350 in

9

unspent earnings each month. (Id. at 4.) Additionally, White’s application indicates the

10

employment that was the source of his earnings terminated on or about February 2018. (Id.

11

at 2.) Based on the foregoing, the Court finds that plaintiff’s application demonstrates he

12

is unable to pay the requisite fees and costs. See Adkins v. E.I. DuPont de Nemours & Co.,

13

335 U.S. 331, 339 (1948) (stating that one need not be “absolutely destitute to enjoy the

14

benefit of the [IFP] statute”). However, for the reasons set forth below, the Court DENIES

15

Plaintiff’s IFP motion as moot.

16

II.

SCREENING UNDER 28 U.S.C. § 1915(e)

17

Under 28 U.S.C. § 1915(e)(2), when reviewing an IFP motion, the Court must rule

18

on its own motion to dismiss before the complaint is served. Lopez v. Smith, 203 F.3d 1122,

19

1127 (9th Cir. 2000). The Court must dismiss the complaint if it is frivolous, malicious,

20

fails to state a claim upon which relief may be granted, or seeks monetary relief from a

21

defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d

22

845, 845 (9th Cir. 2001) (per curiam) (noting 28 U.S.C. § 1915(e)(2)(B) is “not limited to

23

prisoners”); Lopez, 203 F.3d at 1127 (“[§] 1915(e) not only permits but requires a district

24

court to dismiss an [IFP] complaint that fails to state a claim”).

25

“The standard for determining whether a plaintiff has failed to state a claim upon

26

which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

27

Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

28

1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a
2
18-cv-0580-AJB-AGS

1

short and plain statement of the claim showing that the pleader is entitled to relief.” FED.

2

R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true,

3

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

4

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). Detailed

5

factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of

6

action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, the

7

Court “may dismiss as frivolous complaints reciting bare legal conclusions with no

8

suggestion of supporting facts . . . .” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.

9

1984) (internal quotation omitted).

10

Also, pro se pleadings are held to “less stringent standards than formal pleadings

11

drafted by lawyers” because pro se litigants are more prone to making errors in pleading

12

than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal

13

quotations omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded

14

by statute on other grounds, Lopez, 203 F.3d at 1126–30 (9th Cir. 2000). Thus, the Supreme

15

Court has stated that federal courts should liberally construe the “‘inartful pleading’ of pro

16

se litigants.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v.

17

MacDougall, 454 U.S. 364, 365 (1982)); see, e.g., Balistreri v. Pacifica Police Dep’t, 901

18

F.2d 696, 699 (9th Cir. 1988) (reasoning that pro se pleadings are liberally construed).

19

III.

DISCUSSION

20

White brings this action against defendant Kenneth W. Peek, the property owner of

21

a multi-family housing complex located at 4512 Alabama Street in San Diego (hereinafter

22

“premises”). (Doc. No. 1 at 1–2.) White alleges that from August 2017, until February

23

2018, White was employed as a paralegal by the Law Offices of Francisco Javier Aldana.

24

(Doc. No. 2 at 2.) As a part of his employment agreement, White was required to sign a

25

lease and live at the premises where Aldana also lived. (Doc. No. 1 at 3.) On or about

26

February 2018, White and Aldana had a disagreement over “hazardous working

27

conditions” and Aldana evicted him from the premises for having a different familial status

28

than Aldana. (Id. at 4.) Liberally construing the complaint, White alleges his eviction from
3
18-cv-0580-AJB-AGS

1

the premises was the result of discrimination on the basis of familial status in violation of

2

the Fair Housing Act.

3

A. LEGAL STANDARD UNDER FAIR HOUSING ACT

4

Under the FHA, “[i]t shall be unlawful for any person or other entity whose business

5

includes engaging in residential real-estate transactions to discriminate against any person

6

in making available such a transaction, or in the terms or conditions of such a transaction,

7

because of race, color, religion, sex, handicap, familial status, or national origin.” 42 U.S.C.

8

§ 3605(a). Discrimination based on familial status generally refers to discrimination against

9

individuals living with one or more minor children or individuals who are pregnant, see id.

10

at 3602(k), and “residential real-estate transactions” include eviction, 24 C.F.R.

11

§ 100.60(b)(5) (2016).

12

A prima facie case of disparate treatment requires a showing that: “(1) plaintiff’s

13

rights are protected under the FHA; and (2) as a result of defendant’s discriminatory

14

conduct, plaintiff has suffered a distinct and palpable injury.” Harris v. Itzhaki, 183 F.3d

15

1043, 1051 (9th Cir. 1999). Alternatively, to establish a disparate impact claim, a plaintiff

16

must allege: “(1) the existence of outwardly neutral practices; (2) a significantly adverse

17

or disproportionate impact on persons of a particular type produced by the defendant’s

18

facially neutral acts or practices; and (3) facts demonstrating a causal connection between

19

the specific challenged practice or policy and the alleged disparate impact.” Pfaff v. U.S.

20

Dept. of Housing and Urban Dev., 88 F.3d 739, 745 (9th Cir. 1990).

21

However, “the standards for pleading discrimination claims are no higher than the

22

relaxed pleading standards of Federal Rule of Civil Procedure 8(a). . . .” Edwards v. Marin

23

Park, Inc., 356 F.3d 1058, 1061 (2004) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,

24

512 (2002)). A plaintiff is not required to put forth a prima facie case pursuant to

25

McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). At the dismissal stage, “a

26

plaintiff need only give the defendant fair notice of what the plaintiff’s claim is and the

27

grounds upon which is rests.” Id. (internal quotations and citations omitted).

28
4
18-cv-0580-AJB-AGS

1

B. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FHA

2

The first and only cause of action in White’s complaint is for “Discrimination in

3

Violation of Fair Housing Act” and contains only a recitation of FHA provisions and the

4

legal conclusion that the “[d]efendant has injured plaintiff and threatened him with injury.”

5

(Doc. No. 1 at 5–6.) A court need not accept complaints that assert bare legal conclusions.

6

See Franklin, 745 F.2d at 1228. However, liberally construing the allegations in the

7

complaint, White appears to allege he suffered an injury—eviction from the premises—

8

because of discrimination against his familial status. (Doc. No. 1 at 4.)

9

However, White fails to plead sufficient facts to assert he had a familial status

10

protected under the FHA. Familial status generally refers to individuals—such as parents

11

or custodians—living with one or more minor children or individuals who are pregnant.

12

42 U.S.C. § 3602(k). The allegations do not make clear what White’s familial status is. A

13

complaint does not suffice if it tenders naked assertions devoid of factual enhancements.

14

Iqbal, 556 U.S. at 678 (internal quotations omitted). White would need to allege facts

15

asserting his familial status in order to show he had rights protected under the FHA. Here,

16

White has not done so.

17

Additionally, White fails to plead sufficient facts describing the discriminatory

18

conduct and how such conduct resulted in his injury. Here, the complaint appears to

19

describe a dispute between White and his employer, Aldana, over “hazardous working

20

conditions” and other employment-related issues, as the cause of the eviction, (Doc. No. 1

21

at 4), but fails to describe any discriminatory conduct. Further, the complaint fails to

22

connect the discriminatory conduct to the purported eviction. White would need to allege

23

facts describing what the discriminatory conduct was and how the eviction was the result

24

of that discriminatory conduct. Again, here, White does not do so.

25
26

C. PLAINTIFF FAILS TO STATE A CLAIM AGAINST DEFENDANT
PEEK

27

In addition to failing to plead sufficient facts to state a claim under the FHA, White

28

fails to plead sufficient facts to show Peek engaged in the discriminatory conduct or was
5
18-cv-0580-AJB-AGS

1

otherwise responsible for the discriminatory conduct of others. A complaint must “‘give

2

the defendant fair notice of what the . . . claim is and the grounds upon which it rests[,]’”

3

so that the defendant can prepare a defense. Erickson v. Parus, 511 U.S. 89, 93 (2007)

4

(quoting Twombly, 550 U.S. at 555). Other than identifying Peek as the owner of the

5

premises, the complaint fails to allege any facts that Peek engaged, directly or through an

6

agent, in discriminatory conduct. As such, the complaint fails to give Peek fair notice of

7

what the White’s claim against him is and the grounds upon which it rests. White would

8

need to allege facts of Peek’s role or responsibility in the discriminatory conduct. Here,

9

White does not do so.

10
11

D. PLAINTIFF FAILS TO ALLEGE FACTS CONNECTING NON-PARTY
ALDANA TO DEFENDANT PEEK

12

The apparent source of the discriminatory conduct is Aldana, White’s employer who

13

is not a named defendant in this suit. Construing the complaint liberally, White appears to

14

allege Peek is responsible for the conduct of non-party Aldana because Peek “ratified”

15

Aldana’s conduct, (Doc. No. 1 at 4), or Aldana was either the employee or agent of Peek.

16

“HUD regulations define an agent under the FHA as ‘any person authorized to perform an

17

action on behalf of another person regarding any matter related to the . . . rental of

18

dwellings, including offers, solicitations or contracts and the administration of matters

19

regarding such offers, solicitations or contracts or any residential real estate-related

20

transactions.’” Harris, 183 F.3d at 1154 (italics in original) (citations omitted). The

21

complaint offers no facts as to the relationship between Peek and Aldana, other than the

22

fact that Aldana is also a tenant at the premises. Nor does the complaint describe Peek’s

23

actions in relation to the discriminatory conduct. White would need to allege facts as to the

24

relationship between Peek and Aldana sufficient to support an agency relationship and

25

actions Peek took to ratify Aldana’s discriminatory conduct. Here, White does not do so.

26

While the Court makes every attempt to liberally construe White’s complaint, it still

27

fails to provide sufficient facts to state a claim under the FHA and to give defendant Peek

28

fair notice of the claims against him. Without more, for the aforementioned reasons, the
6
18-cv-0580-AJB-AGS

1

Court DISMISSES White’s complaint.

2

IV.

LEAVE TO AMEND

3

Leave to amend should be granted if it appears possible that the plaintiff can correct

4

the complaint’s deficiency. Fed. R. Civ. P. 15(a); Balistreri, 901 F.2d at 701. The “rule

5

favoring liberality in amendments to pleadings is particularly important for the pro se

6

litigant. Presumably unskilled in the law, the pro se litigant is far more prone to make errors

7

in pleading than the person who benefits from the representation of counsel.” Noll, 809

8

F.2d at 1448; see Crowley v. Bannister, 734 F.3d 967, 977–78 (9th Cir. 2013); see also

9

Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (“Generally a district court errs in

10

dismissing a pro se complaint for failure to state a claim . . . without giving the plaintiff an

11

opportunity to amend.”). Therefore, the Court GRANTS White leave to amend his

12

complaint.

13

V.

CONCLUSION

14

The Court DENIES as moot White’s IFP motion, (Doc. No. 2), and DISMISSES

15

White’s complaint with leave to amend, (Doc. No. 1). White must file both (1) a renewed

16

IFP motion and (2) an amended complaint by February 15, 2019 or risk having his case

17

dismissed with prejudice for failure to prosecute.

18

IT IS SO ORDERED.

19
20

Dated: January 18, 2019

21
22
23
24
25
26
27
28
7
18-cv-0580-AJB-AGS