Gastelum v. HEES II ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No.: 21-cv-1337 JLS (RBB) 12 Plaintiff, ORDER: (1) GRANTING 13 v. PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT 14 HEES II, d/b/a Big 5 Sporting Goods – WITHOUT PREPAYING FEES OR San Diego, 15 COSTS; AND (2) DISMISSING Defendant. PLAINTIFF’S COMPLAINT 16 WITHOUT PREJUDICE 17 PURSUANT TO 28 U.S.C. § 1915(e)(2) 18 [ECF Nos. 1, 2] 19 20 Presently before the Court are Plaintiff Fernando Gastelum’s Complaint (“Compl.,” 21 ECF No. 1) and Application to Proceed in District Court Without Prepaying Fees or Costs 22 (“IFP Mot.,” ECF No. 2). Having carefully considered Plaintiff’s Complaint, his IFP 23 Motion, and the applicable law, the Court GRANTS Plaintiff’s IFP Motion and 24 DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE. 25 IN FORMA PAUPERIS MOTION 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 /// 1 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does 5 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 6 poverty with some particularity. Escobedo v. Applebees, 787 F.3d 1226, 1234 (2015). 7 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit 8 demonstrates that paying court costs will result in a plaintiff’s inability to afford the 9 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is 10 destitute. Id. 11 Here, Plaintiff’s affidavit shows that he and his spouse have a combined monthly 12 income of $3,165. See IFP Mot. at 1–2. Plaintiff reports that he and his spouse have about 13 $200 in cash and $1,354.95 in checking accounts. See id. at 2. They own a home valued 14 at approximately $45,000 and a car worth approximately $15,000. See id. at 3. Plaintiff 15 and his spouse have two dependent adult children. See id. Plaintiff and his spouse’s 16 combined monthly expenses total $2,450, leaving only several hundred dollars a month 17 beyond their income. See id. at 4–5. The Court therefore concludes that Plaintiff 18 adequately has demonstrated that paying the $402 filing fee would result in his inability to 19 afford the necessities of life. Accordingly, the Court GRANTS Plaintiff’s IFP Motion. 20 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 21 I. Standard of Review 22 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 23 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional 26 administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52 27 administrative fee does not apply to persons granted leave to proceed in forma pauperis. 28 Id. 1 Cir. 2002) (per curiam) (holding that 28 U.S.C. § 1915(e)(2) screening applies to non- 2 prisoners proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 3 (en banc) (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua 4 sponte dismiss a complaint, or any portion of it, that is frivolous, malicious, fails to state a 5 claim, or seeks damages from defendants who are immune. See Lopez, 203 F.3d at 1126– 6 27. “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits 7 need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th 8 Cir. 2014) (citations omitted). 9 “When a court does not have jurisdiction to hear an action, the claim is considered 10 frivolous.” Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). 11 Moreover, “[t]he Court has an independent obligation to determine whether it has subject- 12 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625, at *2 13 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 14 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) 15 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 16 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 17 that the parties either overlook or elect not to press.” (citation omitted)). Pursuant to 18 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 19 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 20 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 21 Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “subject-matter jurisdiction, because it 22 involves a court’s power to hear a case, can never be forfeited or waived”; therefore, “when 23 a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss 24 the complaint in its entirety” (citation omitted)). 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). Rule 12(b)(6) requires a complaint “contain sufficient factual 1 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed factual 3 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 4 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 5 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 6 specific task that requires the reviewing court to draw on its judicial experience and 7 common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant- 8 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 9 see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 10 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” 11 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 12 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth 13 in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, 14 556 U.S. at 679). 15 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 16 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 17 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 18 unless the court determines that “the pleading could not possibly be cured by the allegation 19 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 20 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 21 901 F.2d 696, 701 (9th Cir. 1990)). 22 II. Plaintiff’s Factual Allegations 23 Plaintiff alleges that he is sixty-one years old, is missing a leg, and must use a 24 wheelchair for mobility. Compl. ¶ 1. He resides in Casa Grande, Arizona. Id. at 1; see 25 also ECF No. 1-1 (“Civil Cover Sheet”); IFP Mot. at 5 (identifying Casa Grande, Arizona 26 as Plaintiff’s “city and state of . . . legal residence”). Defendant owns or operates a store 27 located at 3729 Rosencrans Street, San Diego, California 92210 (the “Store”). Id. ¶ 2. 28 Plaintiff visited the Store on June 28, 2021, at which time he discovered it was not 1 compliant with either the Americans with Disabilities Act (“ADA”) or state law. Id. 2 ¶¶ 3–4. Specifically, the Store had unsecured carpets at the entrance, lacked a width 3 between rows of racks of 32 or more inches, had objects protruding between rows of sales 4 items, and had a sales counter with a height exceeding 36 inches. Id. ¶ 4. These conditions 5 denied Plaintiff equal access to the Store. Id. ¶ 5. Plaintiff notes he will not return to the 6 Store “until it becomes fully compliant with federal and state disability laws.” Id. ¶ 6. 7 Plaintiff requests an injunction requiring Defendant to comply with state and federal law, 8 his costs and expenses, and “[d]amages under California law for $4,000 per violation.” Id. 9 at 2 (“Relief I Request”). 10 III. Analysis 11 A. Standing 12 “A party invoking federal jurisdiction has the burden of establishing that it has 13 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution; standing 14 is a ‘core component’ of that requirement.” D’Lil v. Best W. Encina Lodge & Suites, 538 15 F.3d 1031, 1036 (9th Cir. 2008) (citation omitted). Further, courts “have an independent 16 obligation ‘to examine jurisdictional issues such as standing [sua sponte].’” Wilson v. 17 Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016) (alteration in original) (quoting B.C. v. Plumas 18 Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999)). “Only injunctive relief is 19 available under Title III of the ADA.” Barnes v. Marriott Hotel Servs., Inc., No. 15-CV- 20 01409-HRL, 2017 WL 635474, at *7 (N.D. Cal. Feb. 16, 2017). To establish standing to 21 seek injunctive relief, a plaintiff must show that “he [i]s likely to suffer future injury.” See 22 City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “[A]n ADA plaintiff can establish standing 23 to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury- 24 in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 25 Imports, Inc., 631 F.3d 939, 944 (9th Cir. 2011). “‘[S]ome day’ intentions [to return to a 26 noncompliant facility] . . . are insufficient to establish standing.” Barnes, 2017 WL 27 635474, at *7. An ADA plaintiff therefore “lacks standing if he is indifferent to returning 28 to the store or if his alleged intent to return is not genuine.” Chapman, 631 F.3d at 953. 1 Further, an ADA plaintiff cannot establish standing by alleging an injury “based only on 2 conclusory statements unsupported by specific facts.” Barnes, 2017 WL 635474, at *7. 3 Here, Plaintiff has failed to allege an intent to return to the Store.2 Accordingly, 4 Plaintiff lacks standing, and therefore the Court lacks subject-matter jurisdiction over 5 Plaintiff’s ADA claim and must dismiss it. See Langer v. YM Holdings, LLC, No. 18-CV- 6 1114 JLS (KSC), 2020 WL 3498165, at *4 (S.D. Cal. June 29, 2020) (dismissing ADA 7 complaint for lack of subject-matter jurisdiction premised on lack of standing). Moreover, 8 having found that Plaintiff lacks standing to pursue his ADA claims, the court declines to 9 exercise supplemental jurisdiction over Plaintiff’s remaining state law claim(s). See, e.g., 10 Barnes, 2017 WL 635474, at *13 (declining to exercise supplemental jurisdiction under 28 11 U.S.C. § 1367(c) over remaining state law claim after dismissing ADA claim for lack of 12 standing). 13 B. ADA Claim 14 Even were standing not an issue, Plaintiff fails to state a claim under the ADA. Title 15 III of the ADA prohibits discrimination by places of public accommodation. Vogel v. Rite 16 Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014). “To prevail on a Title III 17 discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning 18 of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 19 public accommodation; and (3) the plaintiff was denied public accommodations by the 20 defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th 21 22 2 In light of Plaintiff’s pro se status, the Court further notes for Plaintiff’s benefit that, even once Plaintiff cures this basic pleading deficiency, issues may persist later in this 23 action with regard to establishing a genuine intent to return, given that the Store is located 24 in San Diego, see id. ¶ 2, while Plaintiff resides some distance away in Casa Grande, Arizona, see IFP Mot. at 5. “In determining whether a plaintiff’s likelihood of return is 25 sufficient to confer standing, courts have examined factors including: (1) the proximity of 26 the business to the plaintiff’s residence, (2) the plaintiff’s past patronage of the business, (3) the definitiveness of the plaintiff’s plans to return, and (4) the plaintiff’s frequency of 27 travel near the defendant.” Crandall v. Starbucks Corp., 249 F. Supp. 3d 1087, 1106 (N.D. 28 Cal. 2017) (citation and footnote omitted). 1 Cir. 2007). Where, as here, the plaintiff seeks to establish discrimination based on an 2 architectural barrier, “the plaintiff must also prove that: “(1) the existing facility at the 3 defendant’s place of business presents an architectural barrier prohibited under the ADA, 4 and (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn 5 Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000). 6 First, the ADA defines a disability as “a physical or mental impairment that 7 substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Walking 8 is considered a “major life activit[y].” 42 U.S.C. § 12102(2)(A). Plaintiff is missing a leg 9 and must use a wheelchair for mobility, Compl. ¶ 1, and therefore he alleges that he is 10 disabled within the meaning of the ADA. See, e.g., Lozano v. C.A. Martinez Fam. Ltd. 11 P’ship, 129 F. Supp. 3d 967, 972 (S.D. Cal. 2015) (concluding plaintiff who could not walk 12 and used a wheelchair for mobility was “disabled” within the meaning of the ADA). 13 Second, Plaintiff adequately alleges that Defendant’s Store is a place of public 14 accommodation. Plaintiff asserts that Defendant owns or operates the Store, see Compl. 15 ¶ 2, and a “sales or rental establishment” is a place of public accommodation as defined 16 within the ADA. 42 U.S.C. § 12181(7)(E). 17 As to the third and final element, Plaintiff alleges that he was denied access to the 18 Store due to ADA-prohibited architectural barriers. See, e.g., Compl. ¶ 4.a (alleging 19 carpets unsecured at entry); 36 C.F.R. pt. 1191, App. D, § 302.2 (requiring carpets to be 20 securely attached); Compl. ¶ 4.b (alleging width between rows of racks was less than 32 21 inches), 36 C.F.R. pt. 1191, App. D, § 403.5 (requiring walking surfaces to be 32 inches 22 wide at minimum); Compl. ¶ 4.d (alleging sales counter more than 36 inches high); 36 23 C.F.R. pt. 1191, App. D, § 904.4 (requiring sales counters to be no higher than 36 inches). 24 However, Plaintiff fails to allege that removal of these barriers is readily achievable. See 25 generally Compl. Accordingly, Plaintiff fails to state a claim under the ADA. 26 C. State Law Claim(s) 27 Plaintiff references violations of California law but does not specifically identify the 28 law(s) at issue. Given, however, Plaintiff’s request for “[d]amages under California law 1 || for $4,000 per violation,” Compl. at 2, the Court presumes Plaintiff seeks to assert a claim 2 under California’s Unruh Act. See Cal. Civ. Code § 52 (providing statutory damages of 3 $4,000 for violations of, inter alia, the Unruh Act). 4 The Unruh Act states that “[a]ll persons within the jurisdiction of this state are free 5 equal, and no matter what their .. . disability . . . are entitled to the full and equal 6 ||accommodations, advantages, facilities, privileges, or services in all business 7 || establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). A violation of the ADA 8 |/is also necessarily a violation of the Unruh Act. Cal. Civ. Code § 51(f); Vogel, 992 F. 9 Supp. 2d at 1011. Because Plaintiff does not sufficiently allege an ADA claim, see supra 10 || Section III.B, he also fails to allege an Unruh Act claim. 11 CONCLUSION 12 In light of the foregoing, the Court GRANTS Plaintiff's IFP Motion (ECF No. 2) 13 DISMISSES Plaintiff's Complaint (ECF No. 1) in its entirety pursuant to 28 U.S.C. 14 || § 1915(e)(2) as frivolous due to lack of subject-matter jurisdiction and for failure to state a 15 |}claim. The Court grants Plaintiff forty-five (45) days from the date on which this Order is 16 || electronically docketed in which to file an amended complaint curing the deficiencies of 17 pleading noted herein. Should Plaintiff fail to file an amended complaint in accordance 18 || with this Order, the Court will enter a final order dismissing this civil action without 19 || prejudice based on Plaintiffs failure to prosecute in compliance with a court order 20 |/requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 21 || plaintiff does not take advantage of the opportunity to fix his complaint, a district court 22 ||may convert the dismissal of the complaint into dismissal of the entire action.”). 23 IT IS SO ORDERED. 24 || Dated: October 27, 2021 . tt 25 jen Janis L. Sammartino 6 United States District Judge 27 28