(PS) Shreeman v. Cudney ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL KENNETH SHREEMAN, No. 2:18-cv-2329-TLN-EFB PS 12 Plaintiff, 13 v. ORDER 14 MARK DAVID CUDNEY, 15 Defendant. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines that 22 the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim 23 on which relief may be granted, or seeks monetary relief against an immune defendant. As 24 discussed below, plaintiff’s complaint must be dismissed for failure to state a claim. 25 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 26 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 3 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 4 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 5 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 6 relief above the speculative level on the assumption that all of the complaint’s allegations are 7 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 8 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Under this standard, the court must accept as true the allegations of the complaint in 11 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 12 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 13 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 14 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 15 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 16 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 17 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 18 Plaintiff’s complaint alleges that in September 2016, defendant Mark Cudney was 19 appointed as counsel to represent plaintiff’s minor child in family court proceedings. ECF No. 1 20 at 5-6. Plaintiff, who is disabled due to deafness, claims that defendant refused to accommodate 21 his disability by failing to provide a professional American Sign Language (“ALS”) interpreter. 22 Id. at 5. He claims that defendant, rather than provide that accommodation, refused to schedule 23 meetings with plaintiff and required plaintiff’s significant other to act as an interpreter during 24 court appearances. Id. Plaintiff claims that defendant’s refusal to provide an interpreter violated 25 Title III of the Americans with Disabilities Act. Id. at 4. 26 Title III of the ADA provides that “[n]o individual shall be discriminated against on the 27 basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 28 advantages, or accommodations of any place of public accommodation by any person who owns, 1 leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Thus, 2 to state a Title III claim a plaintiff must allege that (1) he “is disabled within the meaning of the 3 ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public 4 accommodation; and (3) the plaintiff was denied public accommodations by the defendant 5 because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). 6 Applicable regulations require places of public accommodation to “furnish appropriate auxiliary 7 aids and services . . . to ensure effective communication with individuals with disabilities.” 28 8 C.F.R. § 36.303(c)(1). 9 Plaintiff alleges that he is an individual with a disability. He also alleges that defendant is 10 a partner at the law firm of Cudney, Gwinup, Hoffman & Hoffman. Liberally construed, this 11 allegation establishes that defendant is the owner or operator of a place of public accommodation. 12 The complaint, however, fails to establish that defendant or his law firm denied plaintiff goods, 13 services, or facilitates on account of disability. Instead, plaintiff alleges that defendant was 14 appointed to provide legal services to his minor child, not to plaintiff. More significantly, 15 plaintiff only complains about being denied an ALS interpreter at court proceedings. See ECF 16 No. 1 at 5-6. Thus, to the extent plaintiff was denied goods or services on account of his 17 disability, they were denied by the state court and not by defendant. Consequently, plaintiff’s 18 complaint fails to state a claim under Title III against defendant Cudney, the only defendant 19 named in the complaint. 20 Accordingly, plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff 21 is granted leave to file an amended complaint. Any amended complaint must allege a cognizable 22 legal theory against a proper defendant and state sufficient facts in support of that cognizable 23 legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts 24 must afford pro se litigants an opportunity to amend to correct any deficiency in their 25 complaints). Should plaintiff choose to file an amended complaint, the amended complaint shall 26 clearly set forth the allegations against each defendant and shall specify a basis for this court’s 27 subject matter jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered 28 paragraphs, each limited as far as practicable to a single set of circumstances,” as required by 1 | Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line 2 || numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 3 | 130(c). Any amended complaint shall also use clear headings to delineate each claim alleged and 4 | against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must 5 || plead clear facts that support each claim under each header. 6 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 7 | make an amended complaint complete. Local Rule 220 requires that an amended complaint be 8 || complete in itself. This is because, as a general rule, an amended complaint supersedes the 9 | original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 10 | plaintiff files an amended complaint, the original no longer serves any function in the case. 11 | Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 12 | alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 13 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 14 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 15 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 16 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 17 Accordingly, IT IS ORDERED that: 18 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 19 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 20 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 21 || complaint. The amended complaint must bear the docket number assigned to this case and must 22 || be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 23 || accordance with this order will result in a recommendation this action be dismissed. 24 | DATED: February 5, 2020. tid, PDEA EDMUND F. BRENNAN 26 UNITED STATES MAGISTRATE JUDGE 27 28