Jeffries v. Foodland et al

Filing 8

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 9/11/2020. Based on the foregoing, the IFP Application is GRANTED; the Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim; and Plaintiff is GRANTED leave to file an amended complaint as permitted by this Order. Failure to file an amended complaint b y October 9, 2020 will result in automatic dismissal of this action for failure to prosecute and failure to comply with a court order. (jo)COURT'S CERTIFICATE OF SERVICE - Donald Jeffries will be served on September 14, 2020 by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DONALD JEFFRIES,

CIV. NO. 20-00304 JMS-RT
ORDER GRANTING
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND
DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO
AMEND

Plaintiff,

vs.
FOODLAND GROCERY;
RAMONSITA LOGAN; and
AUMAUINUUESE S. PUNI,
Defendants.

ORDER GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS AND DISMISSING FIRST AMENDED COMPLAINT WITH
LEAVE TO AMEND
I. INTRODUCTION
On July 9, 2020, pro se Plaintiff Donald Jeffries (“Plaintiff”) filed a
“Complaint for Violations of Civil Rights” against Foodland Grocery
(“Foodland”), Foodland manger Ramonsita Logan, and Foodland security officer
Aumauinuuese S. Puni (collectively, “Defendants”). ECF No. 1. Plaintiff also
filed an Application to Proceed in forma pauperis (“IFP Application”). ECF No. 2.
On July 10, 2020, Plaintiff filed Exhibits A-C and E-G to his Complaint, ECF No.
4, and on August 10, 2020, Plaintiff filed a First Amended Complaint (“FAC”).

ECF No. 5. 1 Based on the following, the court GRANTS the IFP Application and
DISMISSES the Complaint with leave to amend.
II. IFP APPLICATION
Plaintiff’s IFP Application indicates that his gross pay or wages is
$1,200 per month, while his take-home pay or wages is only $200 per month. ECF
No. 2 at PageID #10. Plaintiff has expenditures of over $1,000 per month, no
assets, and has a dependent daughter. Id. at PageID #11. Plaintiff has made the
required showing under 28 U.S.C. § 1915(a) to proceed in forma pauperis (i.e.,
without prepayment of fees); therefore, the court GRANTS Plaintiff’s IFP
Application.
III. STANDARDS OF REVIEW
The court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening and order the dismissal of any complaint
that is “frivolous or malicious; . . . fails to state a claim upon which relief may be
granted; or . . . seeks monetary relief from a defendant immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the

1

Although Plaintiff checked a box on the FAC indicating that he was bringing suit
against “state or local officials” under 42 U.S.C. § 1983, there are no state or local officials
named or discussed in the body of the FAC.
2

court to dismiss sua sponte an in forma pauperis complaint that fails to state a
claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).
To state a claim, a pleading must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
In considering whether a complaint fails to state a claim, the court must set
conclusory factual allegations aside, accept non-conclusory factual allegations as
true, and determine whether these allegations state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d
1061, 1065 (9th Cir. 2008). A complaint that lacks a cognizable legal theory or
alleges insufficient facts under a cognizable legal theory fails to state a claim. See
UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th
Cir. 2013) (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990)).
A district court may dismiss a complaint for failure to comply with
Rule 8 where it fails to provide the defendant fair notice of the wrongs allegedly
committed. See McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996)
(affirming dismissal of complaint where “one cannot determine from the complaint
who is being sued, for what relief, and on what theory, with enough detail to guide
3

discovery”). Rule 8 requires more than “the-defendant-unlawfully-harmed-me
accusation[s]” and “[a] pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678
(citations and quotations omitted). “Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.” Id. (quotation signals
omitted).
Plaintiff is appearing pro se; consequently, the court liberally
construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court
also recognizes that “[u]nless it is absolutely clear that no amendment can cure
the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies
and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of
Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d
967, 977-78 (9th Cir. 2013).
///
///
///
///
///
4

IV. BACKGROUND 2
The FAC 3 alleges that Plaintiff entered the “Foodland Dillingham
location” on July 8, 2020. ECF No. 5 at PageID #37. When asked by “security” if
he had a mask, Plaintiff explained that he has a breathing disability that prevents
him from wearing a mask. After further discussion, the security guard called the
manager. While Plaintiff was attempting to purchase an item, the manager told
him to leave. Id. It appears that Plaintiff then left the store. Later, “a friend told
me there was a post of me on a facebook group site the security officer from food
land (sic) posted my picture (of incident) and degraded me saying untrue things
. . . .” ECF No. 1 at PageID #4-5. Although unclear, Plaintiff appears to claim that
he filed a police report and that police arrived on the scene, at which point the
manager offered to permit him to wear a face shield, “but she refused to
accommodate” when Plaintiff asked to have security help him. Id. at PageID #5.

2

For purposes of screening, facts alleged in the FAC are accepted as true and construed
in the light most favorable to Plaintiff. See Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.
2014).
3

The original complaint and the FAC are similar, although both include information not
contained in the other. Regardless, because Plaintiff is pro se, the court liberally construes the
FAC to include both the original complaint and Exhibits A-C and D-G. Should Plaintiff file a
Second Amended Complaint, it must be a stand-alone document without reference to other
filings, and the court will not permit piecemeal additions to the Second Amended Complaint.
5

The FAC appears to allege a claim pursuant to Title III of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12001, et seq. and a state
law defamation claim. 4
V. DISCUSSION
A.

Title III of the Americans with Disabilities Act (“ADA”)
“Title III of the ADA prohibits discrimination on the basis of

disability in the ‘full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation.’” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 904 (9th Cir.
2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). A grocery store is a place of
public accommodation under Title III. 42 U.S.C. § 12181(7)(E). Discrimination
may be in the form of access barriers that violate the ADA and “interfere with
disabled individuals’ ‘full and equal enjoyment’ of places of public
accommodation.” Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 945 (9th
Cir. 2011) (quoting 42 U.S.C. § 12182(a)).

4

Plaintiff also cites 18 U.S.C. §§ 241-49, offenses set forth in the criminal code, as part
of his injuries. ECF No. 5 at PageID #39. To the extent Plaintiff seeks a private cause of action
for these criminal offenses, he has no standing to do so. See Tuomela v. Waldorf-Astoria Grand
Wailea Hotel, 2020 WL 3490027, at *2 (D. Haw. June 26, 2020); see also, e.g., Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (stating that 18 U.S.C. §§ 241 and 242 provide no
private cause of action).
6

To establish a prima facie case for discrimination under Title III of
the ADA, Plaintiff must show that “(1) [he] is disabled within the meaning of the
ADA; (2) the defendant is a private entity that owns, leases, or operates a place of
public accommodation”; and (3) the defendant denied public accommodation to
the plaintiff because of his disability. Molski v. M.J. Cable, Inc., 481 F.3d 724,
730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)-(b)). Only injunctive relief is
available to private litigants under Title III. See id.; A.L. by & through D.L. v. Walt
Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1290 (11th Cir. 2018).
Here, Plaintiff provides insufficient facts showing that he is disabled
under the ADA. Not all impairments qualify as a disability under the ADA. See,
e.g., Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1067 (9th Cir. 2005); Equal
Emp’t Opportunity Comm’n v. BNSF Ry. Co., 853 F.3d 1150, 1152 (10th Cir.
2017); Munoz v. Cal. Dep’t of Corr. & Rehab., 2019 WL 5063463, at *8 (E.D. Cal.
Oct. 9, 2019). A plaintiff is disabled within the meaning of the ADA by:
(1) having “a physical or mental impairment that substantially limits one or more
major life activities of such individual;” (2) having “a record of such an
impairment;” or (3) being “regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). Plaintiff’s conclusory allegation that he suffers from a breathing
disability and that he cannot wear a face mask because it is a health risk to him is
insufficient to allege that he has an impairment that is covered by the ADA. To
7

survive screening, Plaintiff must allege facts permitting a plausible inference that
he is disabled within the meaning of the ADA, and not just in some generic sense.
Further, individual liability under Title III of the ADA is limited.
See Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 849 (9th Cir. 2004)
(determining that because Title III of the ADA “prohibits discrimination ‘by any
person who owns, leases (or leases to), or operates a place of public
accommodation,’” a defendant could be individually liable if that person “had the
requisite authority to qualify as an ‘operator’ under Title III”) (quoting 42 U.S.C.
§ 12182(a)). Here, to the extent Plaintiff intended to bring an ADA claim against
Defendant Puni, insufficient facts are alleged to show that he is a person who
operated Foodland or is otherwise possibly covered by Title III.
Plaintiff’s claim under Title III of the ADA is DISMISSED with leave
to amend. Any Second Amended Complaint must make clear how Plaintiff is
disabled under the ADA, against which Defendant the ADA Title III claim is
brought, and how any individual could be liable as a person who “owns, leases (or
leases to), or operates” Foodland.
B.

Defamation Under Hawaii Law
Under Hawaii law, a plaintiff must establish four elements to sustain a

claim for defamation: “(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party; (c) fault amounting at least to
8

negligence on the part of the publisher . . . ; and (d) either actionability of the
statement irrespective of special harm or the existence of special harm caused by
the publication.” Woodruff v. Haw. Pac. Health, 2014 WL 128607, at *9-10 (Haw.
Ct. App. Jan. 14, 2014) (citation omitted); Diaz v. Argon Agency Inc., 2015 WL
7737317, at *5 (D. Haw. Nov. 30, 2015). Here, the FAC provides only conclusory
allegations that Plaintiff was defamed. For example, stating that a security officer
posted a picture of Plaintiff on Facebook and “degraded me saying untrue things,”
ECF No. 1 at PageID #5, is simply conclusory. There is no description of a
specific false or defamatory statement or fault amounting to at least negligence. In
fact, it is not even clear from the FAC that Plaintiff knows what was said about
him.
Although it appears that Plaintiff is alleging this claim only against
Puni, the FAC does not specify which Defendant or Defendants this claim is
brought against. If Plaintiff files a Second Amended Complaint and he attempts to
re-allege a defamation claim, he must clearly name the specific Defendant or
Defendants that he claims defamed him.
C.

Leave to Amend
Plaintiff may be able to amend the Complaint to include factual

allegations sufficient to state plausible Title III ADA and state law defamation
claims. Thus, the court GRANTS him leave to amend his Complaint by October 9,
9

2020, to attempt to cure the deficiencies set forth above. If Plaintiff chooses to file
a Second Amended Complaint, he must (1) allege the basis of this court’s
jurisdiction, (2) state each claim he is making, (3) name the defendant against
whom he asserts a claim, (4) allege exactly what that defendant did or did not do,
(5) allege what specific injury he suffered because of each Defendant’s conduct,
and (6) state what specific relief he seeks. In other words, Plaintiff should explain,
in clear and concise allegations, what each Defendant did (or failed to do) and how
those specific facts create a plausible claim for relief in reference to each specific
cause of action. In addition, Plaintiff must comply with the Federal Rules of Civil
Procedure and the Local Rules for the United States District Court for the District
of Hawaii.
An amended complaint generally supersedes a prior complaint and
must be complete in itself without reference to the prior pleading. King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v. Maricopa Cty.,
693 F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without prejudice that
are not realleged in an amended complaint may be deemed voluntarily
dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with
prejudice need not be repled in an amended complaint to preserve them for appeal,
but claims that are voluntarily dismissed are considered waived if they are not
repled).
10

The amended complaint must state that it is the “Second Amended
Complaint,” and it may not incorporate any part of the original Complaint or the
FAC by reference, but rather, any specific allegations must be retyped or rewritten
in their entirety. Plaintiff may include only one claim per count. Failure to file an
amended complaint by October 9, 2020 will result in automatic dismissal of this
action.
VI. CONCLUSION
Based on the foregoing, the IFP Application is GRANTED; the
Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a
claim; and Plaintiff is GRANTED leave to file an amended complaint as permitted
by this Order. Failure to file an amended complaint by October 9, 2020 will result
in automatic dismissal of this action for failure to prosecute and failure to comply
with a court order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 11, 2020.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Jeffries v. Foodland Grocery, et al. Civ. No. 20-00304 JMS-WRP, Order Granting Application
to Proceed In Forma Pauperis and Dismissing First Amended Complaint With Leave to Amend
11