Musgrove v. Hanifin ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 IRVIN MUSGROVE, Case No.: 20-cv-00614-GPC 11 Plaintiff, ORDER: 12 v. (1) GRANTING PLAINTIFF’S 13 ANGIE HANIFIN, MARGERY PIERCE, MOTION FOR LEAVE TO FILE KEYSA MACHADO, SUSANA 14 SEVENTH AMENDED SANDOVAL-SOTO, AND OCEANSIDE COMPLAINT; 15 HOUSING AUTHORITY, 16 Defendants. [ECF No. 125] 17 (2) DIRECTING PLAINTIFF TO 18 FILE HIS SEVENTH AMENDED COMPLAINT ON OR BEFORE 19 OCTOBER 22, 2021; and 20 (3) DENYING AS MOOT 21 DEFENDANTS’ MOTION TO 22 DISMISS PLAINTIFF’S SIXTH AMENDED COMPLAINT 23 24 [ECF No. 117] 25 / / / 26 / / / 27 1 Before the Court is Defendants’ motion to dismiss Plaintiff’s Sixth Amended 2 Complaint (ECF No. 117), Plaintiff’s response in opposition to Defendants’ motion (ECF 3 No. 130), and Defendants’ reply in support of the motion to dismiss (ECF No. 129). Also 4 before the Court is Plaintiff’s Motion for Leave to File 7th Amended Complaint (ECF 5 No. 125), Defendant’s opposition to the motion (ECF No. 128), and Plaintiff’s reply in 6 support (ECF No. 130). 7 For the following reasons, the Court GRANTS Plaintiff’s motion for leave to file a 8 Seventh and Final Amended Complaint, and DENIES as moot Defendants’ motion to 9 dismiss Plaintiff’s Sixth Amended Complaint. Further, the Court finds this motion 10 suitable for disposition without oral argument pursuant to Civil Local Rule 7.1 (d)(1) and 11 VACATES the hearing on this matter. 12 I. FACTUAL AND PROCEDURAL BACKGROUND 13 On March 3, 2020, Plaintiff Irvin Musgrove, proceeding pro se, initiated this 14 action. ECF No. 1. On the same day, Plaintiff filed a motion to proceed in forma 15 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. On June 3, 2020, Plaintiff 16 filed a Third Amended Complaint, naming Angie Hanifin, Margery Pierce, Keysa 17 Machado, and Oceanside Housing Authority as Defendants. ECF No. 13. On August 4, 18 2020, this Court granted Plaintiff’s motion to proceed IFP, but sua sponte dismissed 19 Plaintiff’s Third Amended Complaint, without prejudice, pursuant to 28 U.S.C § 20 1915(e)(2)(B). ECF No. 15 On August 5, 2020, Plaintiff filed a Fourth Amended 21 Complaint. ECF No. 16. On January 25, 2021, the Court sua sponte dismissed 22 Plaintiff’s Fourth Amended Complaint without prejudice. ECF No. 47. On January 27, 23 2021, Plaintiff filed a Fifth Amended Complaint (“5AC”). ECF No. 49. 24 A summons was subsequently issued on the 5AC and Plaintiff attempted to serve 25 Defendants, and later filed requests for entry of default and motions for default judgments 26 against Defendants. See ECF Nos. 48-75. The Court denied Plaintiff’s requests for entry 27 of default and motions for default judgment because Plaintiff had not established that he 1 had properly served the Defendants and had not adequately served Defendants with the 2 5AC. ECF No. 76. However, in the Court’s May 12, 2021 Order dismissing the 5AC 3 without prejudice, the Court found that it had erred in requiring Plaintiff to personally 4 complete service of the 5AC, because Plaintiff is proceeding IFP. ECF No. 91 at 2. 5 Federal Rule of Civil Procedure 4(c)(3) requires the court to order the United States 6 marshals to complete service in cases where the plaintiff is proceeding IFP. Fed. R. Civ. 7 P. 4(c)(3). 8 As the Court explained in the Order, Plaintiff’s 5AC was “dismissed because of his 9 failure to request any relief,” but also found that “the allegations are otherwise potentially 10 sufficient to state a claim under Section 504 of the Rehabilitation Act” arising from 11 Defendants’ denial of Plaintiff’s reasonable accommodation requests. The Court further 12 instructed Plaintiff to amend the 5AC and “caution[ed] Plaintiff that any further failures 13 to fix the deficiencies in his complaint may lead to dismissal without leave to amend.” 14 ECF No. 91 at 13. The Court therefore granted Plaintiff leave to amend his complaint, 15 and ordered the U.S. Marshals to effect service of the Sixth Amended Complaint 16 (“6AC”). Id. at 14. 17 On July 1, 2021, Defendants moved to dismiss the Sixth Amended complaint. 18 ECF No. 117. Plaintiff subsequently moved for leave to file a seventh and final amended 19 complaint on August 2, 2021. ECF No. 125. 20 II. DISCUSSION 21 “A pro se litigant must be given leave to amend his or her complaint, and some 22 notice of its deficiencies, unless it is absolutely clear that the deficiencies of the 23 complaint could not be cured by amendment.” Cato v. United States, 10 F.3d 1103, 1106 24 (9th Cir. 1995) (citing Noll v. Carlson, 803 F.2d 1446, 1448 (9th Cir. 1987)). Further, 25 where amendment of a complaint would be futile, the court must deny leave to amend. 26 See Jones v. Community Redevelopment Agency, 733 F.2d 646, 650 (9th Cir. 1984). The 27 trial court has broad discretion to deny requests for leave to amend a complaint, after the 1 first amendment as of right. See Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1111 (9th 2 Cir. 2003). 3 The Court first provided Plaintiff with “notice of [his complaint’s] deficiencies,” 4 Cato, 10 F.3d at 1106, in its Order dismissing the Third Amended Complaint because 5 Plaintiff “failed to state a claim” and “failed to cite any federal or state statute or case law 6 under which he brings his claim.” ECF No. 15 at 5. The Court observed similar 7 deficiencies in dismissing Plaintiff’s Fourth Amended Complaint, finding that Plaintiff’s 8 bare citation to Section 504 of the Rehabilitation Act on the Civil Cover Sheet, without 9 “expound[ing] on its relevance as applied to the facts of [his] case” did not sufficiently 10 “establish a connection between the facts and the law.” ECF No. 47 at 5. And with 11 respect to the Fifth Amended Complaint, the Court dismissed the complaint because 12 Plaintiff did not “state[] what relief he [was] seeking” which meant Plaintiff had failed to 13 state a claim for relief. ECF No. 91 at 6. The Sixth Amended Complaint, which 14 Defendants challenged in their motion to dismiss (ECF No. 131), suffered from similar 15 omissions as the prior versions. 16 Plaintiff has now asked Court for leave to file a Seventh Amended Complaint 17 (“7AC”). ECF No. 125, and has attached to his motion a proposed amended complaint, 18 ECF No. 125-1. The 7AC adds causes of action and claims for relief that were 19 previously unexplored in earlier complaints. Plaintiff would seek relief for violations of 20 the Unruh Civil Rights Act (California Civil Code § 51), Section 504 of the 21 Rehabilitation Act, and for Discriminatory Conduct Under the Fair Housing Act (42 22 U.S.C. § 3604(3)(B)), including the Liability for Discriminatory Housing Practices (24 23 CFR § 100.7) and Reasonable Accommodations (24 CFR § 100.204). ECF No. 125-1 at 24 1. The proposed 7AC lays out the causes of action, claims for relief, and relief sought 25 relating to these state and federal statutes more fully than previous iterations of Plaintiff’s 26 complaint. See, e.g., ECF No. 125-1 at 11-12 (describing the Section 504 claim for 27 which Plaintiff seeks declaratory and injunctive relief). 1 Prior to the Court’s Order dismissing Plaintiff's SAC, which directed the U.S. 2 || Marshals to serve Defendants with Plaintiff's 6AC (ECF No. 91 at 14), Defendants were 3 ||not served any of Plaintiff's earlier complaints. Defendants’ participation in this case 4 || therefore effectively began only once they were served with Plaintiff's 6AC, on June 11, 5 2021. ECF Nos. 106-115. The Court finds it will conserve judicial resources to permit 6 || Plaintiff to amend his complaint, to file the attached proposed complaint as the Seventh 7 || Amended Complaint, and for Defendants to respond to the newly-minted causes of action 8 the 7AC. 9 Ht. CONCLUSION 10 The Court hereby GRANTS Plaintiff's motion for leave to amend his complaint, 11 || and to file the proposed amended complaint attached to Plaintiff's motion as his Seventh 12 || Amended Complaint. The Court ORDERS Plaintiff to file the proposed amended 13 || complaint as it appears in its current form attached to Plaintiff's motion (ECF No. 125-1) 14 || on or before October 22, 2021. 15 Further, Plaintiff shall not be required to personally serve Defendants his Seventh 16 || Amended Complaint. Upon Plaintiff's filing of his Seventh Amended Complaint, the 17 || Court ORDERS that the U.S. Marshals effect service of Plaintiff's Seventh Amended 18 ||Complaint pursuant to Federal Rule of Civil Procedure 4(c)(3). 19 Finally, the Court DENIES as moot Defendants’ motion to dismiss Plaintiff's 20 || Sixth Amended Complaint (ECF No. 117). 21 IT IS SO ORDERED. 22 ||Dated: October 18, 2021 <= 24 United States District Judge 25 26 27 28