Creamer v. County of Kauai et al
Filing
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ORDER GRANTING DEFENDANT COUNTY OF KAUAI'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (ECF NO. 52 ). "Plaintiff's Second Amended Complaint (ECF No. 51 ) is DISMISSED. Defendant County of Kauai 039;s Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 52) is GRANTED.No further leave to amend is permitted as it would be futile. The Clerk of Court is ORDERED to CLOSE THE CASE."IT I S SO ORDERED. Signed by JUDGE HELEN GILLMOR on 11/5/2018. (afc)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants will be served on November 6, 2018 by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiff,
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vs.
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COUNTY OF KAUAI,
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Defendant.
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_____________________________
DANNY LEE CREAMER,
CIVIL NO. 16-00648 HG-KJM
ORDER GRANTING DEFENDANT COUNTY OF KAUAI’S MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED COMPLAINT (ECF No. 52)
Pro se Plaintiff Danny Lee Creamer, a former police officer
with the Kauai Police Department, filed a Second Amended
Complaint following the Court’s dismissal of both Plaintiff’s
original Complaint and his First Amended Complaint.
The Second Amended Complaint again alleges that Plaintiff
was discriminated against on the basis of his race, color, age,
and disability.
The allegations in the Second Amended Complaint
are insufficient to state a claim upon which relief may be
granted.
Defendant County of Kauai’s Motion to Dismiss Plaintiff’s
Second Amended Complaint (ECF No. 52) is GRANTED.
PROCEDURAL HISTORY
On December 6, 2016, Plaintiff Danny Lee Creamer filed a
COMPLAINT FOR EMPLOYMENT DISCRIMINATION.
(ECF No. 1).
On June 1, 2017, Defendants filed a Motion to Dismiss
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Plaintiff’s Complaint.
(ECF No. 13).
On November 30, 2017, the Court issue an Order dismissing
Plaintiff’s Complaint with leave to amend.
(ECF No. 25).
On February 2, 2018, Plaintiff filed an Amended Complaint
which also included in its title: “MEMORANDUM IN SUPPORT OF
PLAINTIFF’S MOTION FOR LEAVE TO FILE AMEMDED COMPLAINT FOR (ECF
NO. 13)” and “MOTION FOR LEAVE TO AMEND COMPLAINT”.
31).
(ECF No.
The Court construed Plaintiff’s filing as a First Amended
Complaint.
On February 20, 2018, Defendants filed a Motion to Dismiss
Plaintiff’s First Amended Complaint.
(ECF No. 37).
On March 8, 2018, Plaintiff filed a pleading bearing the
captions “PLAINTIFF’S PLEAD FOR AN EXTENSION TO FILE OPPOSITION
TO THE MOTION TO DISMISS (ECF NO. 13)” and “MOTION FOR AN
EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISS BY
DEFENDANTS.”
(ECF No. 39).
The Court construed Plaintiff’s
filing as a request for an extension of time to file his
Opposition.
On March 16, 2018, the Court granted Plaintiff’s first
request for an extension of time to file his opposition.
(ECF
No. 40).
On April 9, 2018, Plaintiff again filed a pleading bearing
the captions “PLAINTIFF’S PLEAD FOR AN EXTENSION TO FILE
OPPOSITION TO THE MOTION TO DISMISS (ECF NO. 13)” and “MOTION FOR
AN EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISS BY
DEFENDANTS.”
(ECF No. 41).
Once more, the Court construed
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Plaintiff’s filing as a request for an extension of time to file
his Opposition.
On April 13, 2018, the Court granted Plaintiff’s second
request for an extension of time to file his opposition.
(ECF
No. 42).
On June 1, 2018, Plaintiff filed his Opposition.
(ECF No.
43).
On June 13, 2018, Defendants filed a Reply.
(ECF No. 44).
On July 18, 2018, the Court issued an ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
WITH LEAVE TO AMEND.
(ECF No. 48).
The Court dismissed all
claims and permitted Plaintiff leave to amend as to his claims
against only Defendant County of Kauai.
(Id.)
On September 4, 2018, Plaintiff filed a document entitled,
“COMPLAINT FILED ON DECEMBER 6, 2016 REVISED SEPTEMBER 4, 2018.”
(ECF No. 51).
The Court construes the filing as Plaintiff’s
Second Amended Complaint.
On September 10, 2018, Defendant filed DEFENDANT COUNTY OF
KAUAI’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT.
(ECF No. 52).
On September 11, 2018, the Court issued a briefing schedule
on Defendant County of Kauai’s Motion to Dismiss.
(ECF No. 53).
The deadline for Plaintiff to respond was set for Friday,
September 28, 2018.
(ECF No. 53).
On September 27, 2018, Plaintiff filed a MOTION FOR AN
EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISSAL BY
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DEFENDANTS FOR PLAINTIFF’S SECOND AMENDED COMPLAINT.
(ECF No.
54).
On September 28, 2018, the Court granted Plaintiff’s request
for an extension of time.
(ECF No. 55).
The Court extended
Plaintiff’s deadline to file an Opposition until Thursday,
November 1, 2018.
Plaintiff failed to file a Opposition to Defendant County of
Kauai’s Motion to Dismiss his Second Amended Complaint.
STANDARD OF REVIEW
A court must dismiss a complaint as a matter of law pursuant
to Federal Rule of Civil Procedure 12(b)(6) where it fails “to
state a claim upon which relief can be granted.”
Rule (8)(a)(2)
of the Federal Rules of Civil Procedure requires “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
When considering a Rule 12(b)(6) motion to dismiss,
the Court must presume all allegations of material fact to be
true and draw all reasonable inferences in favor of the nonmoving party.
1998).
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.
Conclusory allegations of law and unwarranted inferences
are insufficient to defeat a motion to dismiss.
Id. at 699.
The
Court need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint.
Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme
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Court addressed the pleading standards under the Federal Rules of
Civil Procedure in the anti-trust context.
550 U.S. 544 (2007).
The Supreme Court stated that Rule 8 of the Federal Rules of
Civil Procedure “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”
Id. at 555.
Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are applicable
in all civil cases.
129 S.Ct. 1937 (2009).
The Court stated
that “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
at 1949 (citing Twombly, 550 U.S. at 555).
Id.
To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.
Id. (quoting Twombly, 550 U.S. at 570).
A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556).
Id. (citing
The plausibility standard is not akin
to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Twombly, 550 U.S. at 556).
Id. (quoting
Where a complaint pleads facts that
are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of
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‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S.
at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”
AE ex rel. Hernandez v. Cnty of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
omitted).
ANALYSIS
A.
Plaintiff’s Pro Se Status
The Court construes Plaintiff’s pro se pleadings liberally.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
The United States Supreme Court has instructed the federal
courts to liberally construe the “inartful pleading” of pro se
litigants.
Id. (citing Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam)).
B.
Plaintiff’s Second Amended Complaint Fails To State A Claim
Pursuant To Fed. R. Civ. P. 12(b)(6)
Allegations in a complaint may not simply recite the
elements of a cause of action, but the complaint must contain
sufficient allegations of underlying facts to give fair notice
and to enable the opposing party to defend itself effectively.
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Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Factual
allegations taken as true must plausibly suggest an entitlement
to relief.
Id.
Even liberally construed, Plaintiff's Second Amended
Complaint fails to state a claim upon which relief may be
granted.
During the almost two years this case has been before the
Court, the Court has exhaustively explained the deficiencies in
Plaintiff’s prior pleadings.
On November 30, 2017, the Court reviewed Plaintiff’s
Complaint.
The Court issued an ORDER GRANTING COUNTY OF KAUAI,
SCOTT BREDE, IN HIS OFFICIAL CAPACITY, AND ROY ASHER, IN HIS
OFFICIAL CAPACITY’S MOTION TO DISMISS COMPLAINT WITH LEAVE TO
AMEND.
(ECF No. 25).
The Court identified the legal errors and
the factual allegations that were deficient.
The Court provided
Plaintiff with leave to amend his Complaint to address the issues
identified by the Court.
In his First Amended Complaint filed on February 2, 2018
(ECF No. 31), Plaintiff did not cure the deficiencies outlined by
the Court.
On July 8, 2018, the Court again exhaustively explained the
deficiencies in Plaintiff’s First Amended Complaint.
The Court
issued an ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF No.
48).
On September 4, 2018, Plaintiff filed his Second Amended
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Complaint.
(ECF No. 51).
Plaintiff’s Second Amended Complaint
fails to cure the deficiencies explained by the Court in its two
prior orders dismissing his complaints.
First, Plaintiff’s conclusory allegations that he was
discriminated against on the basis of disability are insufficient
to state a claim pursuant to the Americans With Disabilities Act.
Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
Second, Plaintiff’s Second Amended Complaint lacks
sufficient detail and specificity to support an Age
Discrimination in Employment Act.
Diaz v. Eagle Produce Ltd.
P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
Third, Plaintiff’s race discrimination claim pursuant to
Title VII of the Civil Rights Act is also not sufficiently pled.
Plaintiff’s Second Amended Complaint consists of only labels and
conclusions, and a formulaic recitation of the elements of his
cause of action for disparate treatment.
Twombly, 550 U.S. at
555.
Fourth, Plaintiff’s Second Amended Complaint is completely
lacking in particularity with respect to Plaintiff’s hostile work
environment claim.
There are almost no dates or locations of the
alleged events, and no details as to severity, duration,
intensity, or pervasive nature of these alleged incidents.
Fifth, there are insufficient facts to determine the timing
of Plaintiff’s protected activities for purposes of his
retaliation claim.
Plaintiff has failed to sufficiently allege a
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causal link between his alleged protected activities and his
alleged adverse employment action.
Plaintiff’s Second Amended Complaint (ECF No. 51) is
DISMISSED.
Defendant County of Kauai’s Motion to Dismiss Plaintiff’s
Second Amended Complaint (ECF No. 52) is GRANTED.
C.
Leave To Amend Would Be Futile
Plaintiff has been given numerous extensions of time both to
file amended complaints and to respond to the motions to dismiss:
(1)
Plaintiff was provided with THREE extensions of time to
oppose the Defendants’ first motion to dismiss.
(ECF
No. 21).
(2)
Plaintiff was provided an extension of time to file his
First Amended Complaint.
(3)
(ECF No. 30).
Plaintiff was provided TWO extensions of time to file
his Opposition to Defendants’ second motion to dismiss.
(ECF No. 42).
(4)
Plaintiff was provided with another extension of time
to file his Opposition to the current Motion.
(ECF No.
55).
Despite the numerous extension of time, Plaintiff failed to
file an Opposition to the Defendant County of Kauai’s current
motion to dismiss.
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The case was filed nearly two years ago on December 6, 2016.
Plaintiff has not been diligent in his pursuit of the case and he
has regularly failed to comply with Court orders.
Plaintiff has already amended his complaint twice.
Further
amendment is not permitted as it is apparent that leave to amend
would be futile and would be prejudicial to the Defendant.
Allen
v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).
CONCLUSION
Plaintiff’s Second Amended Complaint (ECF No. 51) is
DISMISSED.
Defendant County of Kauai’s Motion to Dismiss Plaintiff’s
Second Amended Complaint (ECF No. 52) is GRANTED.
No further leave to amend is permitted as it would be
futile.
The Clerk of Court is ORDERED to CLOSE THE CASE.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, November 5, 2018.
Danny Lee Creamer v. County of Kauai, Civ No. 16-00648 HG-KJM;
ORDER GRANTING DEFENDANT COUNTY OF KAUAI’S MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED COMPLAINT (ECF No. 52)
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