Gastelum v. HEES II ( 2022 )

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) SCREENING 13 v. PLAINTIFF’S AMENDED COMPLAINT PURSUANT TO 14 HEES II dba Big 5 Sporting Goods – 28 U.S.C. § 1915(e)(2); (2) GRANTING San Diego, 15 PLAINTIFF’S REQUEST FOR Defendant. ISSUANCE OF SUMMONS; AND 16 (3) DIRECTING U.S. MARSHAL 17 SERVICE TO EFFECT SERVICE OF AMENDED COMPLAINT 18 19 (ECF Nos. 7, 8) 20 21 Presently before the Court are Plaintiff Fernando Gastelum’s Amended Complaint 22 (“Am. Compl.,” ECF No. 7) and Request for Issuance of Summons (“Req.,” ECF No. 8). 23 Having carefully considered Plaintiff’s Amended Complaint and the applicable law, the 24 Court GRANTS Plaintiff’s Request and DIRECTS the U.S. Marshal Service to effect 25 service of the Amended Complaint. 26 PROCEDURAL BACKGROUND 27 Plaintiff initiated this action on July 27, 2021, see ECF No. 1, and concurrently filed 28 a motion to proceed in forma pauperis (“IFP”), see ECF No. 2 (“IFP Mot.”). The Court 1 granted Plaintiff’s IFP Motion but dismissed his Complaint pursuant to 28 U.S.C. 2 § 1915(e)(2) as frivolous for lack of subject matter jurisdiction and for failure to state a 3 claim. See generally ECF No. 3 (the “Order”). The Court granted Plaintiff leave to file an 4 amended complaint. See id. at 8. 5 On November 8, 2021, the Court received Plaintiff’s Notice of Compliance with 6 Order Dated October 27, 2021 and Amended Complaint. See ECF Nos. 6, 7. Despite the 7 Plaintiff’s filing’s noncompliance with the Court’s Civil Local Rules, the Court accepted 8 the document for filing nunc pro tunc to November 8, 2021. See ECF No. 6. On January 9 24, 2021, Plaintiff filed his Request for Issuance of Summons. See ECF No. 8. 10 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 11 I. Standard of Review 12 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 13 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th 14 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners 15 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 16 (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss 17 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 18 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The 19 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 20 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 21 2014) (citations omitted). 22 “When a court does not have jurisdiction to hear an action, the claim is considered 23 frivolous.” Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). 24 Moreover, “[t]he Court has an independent obligation to determine whether it has subject- 25 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625, at *2 26 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 27 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) 28 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 1 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 2 that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to 3 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 4 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 5 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 6 Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “‘subject-matter jurisdiction, because it 7 involves a court’s power to hear a case, can never be forfeited or waived’”; therefore, 8 “when a federal court concludes that it lacks subject-matter jurisdiction, the court must 9 dismiss the complaint in its entirety”) (citation omitted). 10 “The standard for determining whether a plaintiff has failed to state a claim upon 11 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 12 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 13 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 14 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 15 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 16 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 17 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 18 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 19 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 21 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 22 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 23 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” 24 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 25 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth 26 in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, 27 556 U.S. at 679). 28 / / / 1 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 2 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 3 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 4 unless the court determines that “the pleading could not possibly be cured by the allegation 5 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 6 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 7 901 F.2d 696, 701 (9th Cir. 1990)). 8 II. Plaintiff’s Factual Allegations 9 Plaintiff alleges that he is sixty-one years old, is missing a leg, and uses a wheelchair 10 for mobility. Am. Compl. ¶ 1. He resides in Casa Grande, Arizona. Id. at 1; see also ECF 11 No. 1-1 (“Civil Cover Sheet”); IFP Mot. at 5 (identifying Casa Grande, Arizona, as 12 Plaintiff’s “city and state of . . . legal residence”). Defendant HEES II dba Big 5 Sporting 13 Goods – San Diego (“Defendant”) owns or operates a store located at 3729 Rosecrans 14 Street, San Diego, California 92210 (the “Store”). Id. ¶ 2. Plaintiff visited the Store on 15 June 28, 2021, at which time he discovered it was compliant with neither the Americans 16 with Disabilities Act (“ADA”) nor state law. Id. ¶¶ 3–4. Specifically, the Store had 17 unsecured carpets at the entrance, lacked a width between rows of racks of 32 or more 18 inches, had objects protruding between rows of sales items, and had a sales counter with a 19 height exceeding 36 inches. Id. ¶ 4. These conditions denied Plaintiff equal access to the 20 Store. Id. ¶ 5. Plaintiff alleges he was deterred by these conditions, as the Store was not 21 accessible to him in its noncompliant state. Id. ¶¶ 6–7. Plaintiff alleges that the repairs 22 required to bring the Store into compliance are readily achievable and can be accomplished 23 “without much difficulty or expense” given (1) Defendant’s size, sales volume, and 24 income; and (2) the “minimal” cost and nature of the necessary repairs. Id. ¶ 8. Plaintiff 25 requests an injunction requiring Defendant to either comply with state and federal law or 26 close the Store, his costs and expenses, “[d]amages under California law for $4,000 per 27 violation,” and any other relief to which he is entitled. Id. at 3 (“Relief I Request”). 28 / / / 1 III. Analysis 2 A. ADA Claim 3 1. Standing 4 “A party invoking federal jurisdiction has the burden of establishing that it has 5 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution; standing 6 is a ‘core component’ of that requirement.” D’Lil v. Best W. Encina Lodge & Suites, 538 7 F.3d 1031, 1036 (9th Cir. 2008) (citation omitted). Further, courts “have an independent 8 obligation ‘to examine jurisdictional issues such as standing [sua sponte].’” Wilson v. 9 Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016) (alteration in original) (quoting B.C. v. Plumas 10 Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999)). “Only injunctive relief is 11 available under Title III of the ADA.” Barnes v. Marriott Hotel Servs., Inc., No. 15-CV- 12 01409-HRL, 2017 WL 635474, at *7 (N.D. Cal. Feb. 16, 2017). To establish standing to 13 seek injunctive relief, a plaintiff must show that “he [i]s likely to suffer future injury.” See 14 City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “[A]n ADA plaintiff can establish standing 15 to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury- 16 in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 17 Imports, Inc., 631 F.3d 939, 944 (9th Cir. 2011). 18 The Court previously found that Plaintiff failed to allege standing because he failed 19 to allege an intent to return to the Store. See Order at 6. In the Amended Complaint, 20 Plaintiff alleges he has standing because the noncompliant conditions he has identified 21 deterred him from patronizing the Store. Am. Compl. ¶¶ 6–7. Accordingly, the Court 22 finds that Plaintiff sufficiently has cured the defects identified in the Order regarding his 23 standing to survive screening pursuant to 28 U.S.C. § 1915(e)(2). 24 2. Elements of Claim 25 Title III of the ADA prohibits discrimination by places of public accommodation. 26 Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014). “To prevail on a 27 Title III discrimination claim, the plaintiff must show that (1) [he] is disabled within the 28 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 1 place of public accommodation; and (3) the plaintiff was denied public accommodations 2 by the defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 3 (9th Cir. 2007). Where, as here, the plaintiff seeks to establish discrimination based on an 4 architectural barrier, “the plaintiff must also prove that: “(1) the existing facility at the 5 defendant’s place of business presents an architectural barrier prohibited under the ADA, 6 and (2) the removal of the barrier is readily achievable.” Parr v. L & L Drive-Inn 7 Restaurant, 96 F. Supp. 2d 1065, 1085 (D. Haw. 2000). 8 In its Order, the Court previously determined that Plaintiff alleges that he is disabled 9 within the meaning of the ADA, that Defendant’s Store is a place of public 10 accommodation, and that Plaintiff was denied access to the Store due to ADA-prohibited 11 architectural barriers. See Order at 7. However, the Court noted that the Complaint failed 12 to allege that removal of the identified barriers was readily achievable and accordingly 13 concluded that Plaintiff failed to state a claim under the ADA. See id. Plaintiff has cured 14 that deficiency in his Amended Complaint. See Am. Compl. ¶ 8. Accordingly, the Court 15 finds that Plaintiff adequately states a claim to survive screening pursuant to 28 U.S.C. 16 § 1915(e)(2). 17 B. State Law Claim(s) 18 The Amended Complaint references violations of California law but does not 19 specifically identify the law(s) at issue. Given, however, Plaintiff’s request for “[d]amages 20 under California law for $4,000 per violation,” Am. Compl. at 3, the Court once more 21 presumes that Plaintiff seeks to assert a claim under California’s Unruh Act. See Cal. Civ. 22 Code § 52 (providing statutory damages of $4,000 for violations of, inter alia, the Unruh 23 Act). 24 The Unruh Act states that “[a]ll persons within the jurisdiction of this state are free 25 and equal, and no matter what their . . . disability . . . are entitled to the full and equal 26 accommodations, advantages, facilities, privileges, or services in all business 27 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). A violation of the ADA 28 is also necessarily a violation of the Unruh Act. Id. § 51(f); Vogel, 992 F. Supp. 2d at 1011. 1 Because the Court finds that Plaintiff states an ADA claim for purposes of surviving 2 screening pursuant to 28 U.S.C. § 1915(e)(2), the Court finds Plaintiff also satisfactorily 3 alleges an Unruh Act claim. 4 REQUEST FOR ISSUANCE OF SUMMONS 5 A party proceeding IFP is entitled to have the summons and complaint served by 6 the United States Marshal Service. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). 7 Further, Rule 4(m) of the Federal Rules of Civil Procedure requires a plaintiff to serve a 8 defendant with process within ninety days of filing a complaint. Fed. R. Civ. P. 4(m). 9 However, if the plaintiff shows good cause for a failure to effectuate service within this 10 timeframe, the court may extend the time of service. See Muhammed v. Department of 11 Treasury, No. 97-cv-8137 LGB CWX, 1998 WL 986245, at *4 (C.D. Cal. Nov. 17, 1998); 12 see also Fed. R. Civ. P. 4(m). 13 Because Plaintiff’s Amended Complaint survives screening pursuant to 28 U.S.C. 14 § 1915(e)(2), the Court GRANTS Plaintiff’s Request and DIRECTS the U.S. Marshal 15 Service to serve the Amended Complaint on Defendant. Furthermore, good cause 16 appearing, given the Court’s delay in screening the Amended Complaint, the Court 17 GRANTS Plaintiff an additional ninety (90) days from the date of this Order to effect 18 service upon Defendant. See Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (noting 19 court is required to extend time for service where good cause exists to do so and has the 20 discretion to extend time for service even in the absence of good cause). 21 CONCLUSION 22 In light of the foregoing, the Court: 23 (1) GRANTS Plaintiff’s Request to Issue Summons (ECF No. 8) and DIRECTS 24 the Clerk of the Court to issue a summons as to Plaintiff’s Amended Complaint (ECF No. 25 7) and forward it to Plaintiff along with a blank U.S. Marshal Form 285 (“USM Form 26 285”). In addition, the Clerk of the Court SHALL PROVIDE Plaintiff with a certified 27 copy of this Order, a certified copy of his Amended Complaint, and the summons so that 28 he may serve Defendant. Upon receipt of this “IFP Package,” Plaintiff must complete 1 USM Form 285 as completely and accurately as possible, include an address where 2 Defendant may be found and/or subject to service pursuant to Civil Local Rule 4.1.c., and 3 return it to the U.S. Marshal according to the instructions the Clerk of the Court provides; 4 (2) ORDERS the U.S. Marshal Service to serve a copy of the Amended 5 ||Complaint and summons upon Defendant upon receipt of and as directed by Plaintiff on 6 ||the completed USM Form 285, and to promptly file proof of service, or proof of any 7 || attempt at service unable to be executed, with the Clerk of the Court. See S.D. Cal. CivLR 8 ||5.2. All costs of that service will be advanced by the United States. See 28 U.S.C. 9 || § 1915(d); Fed. R. Civ. P. 4(c)(3); 10 (3) ORDERS Defendant, once served, to reply to Plaintiff's Amended Complaint 11 || within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12 || 12(a); and 13 (4) ORDERS Plaintiff, after service has been effected by the U.S. Marshal 14 ||Service, to serve upon Defendant and/or its counsel a copy of every further pleading, 15 || motion, or other document submitted for the Court’s consideration pursuant to Federal Rule 16 Civil Procedure 5(b). Plaintiff must include with every original document he seeks to 17 || file with the Clerk of the Court a certificate stating the manner in which a true and correct 18 || copy of that document was served and the date of that service. See S.D. Cal. CivLR 5.2. 19 || Any document received by the Court that has not been properly filed with the Clerk of the 20 || Court or that fails to include a certificate of service may be disregarded. 21 IT IS SO ORDERED. 22 ||Dated: January 27, 2022 tt 23 ja Janis L. Sammartino 34 United States District Judge 25 26 27 28