Rodriguez v. Vega

• Decision Date: 09 November 2015
• Docket Number: No. 2:15-cv-0158 GGH PS,2:15-cv-0158 GGH PS
• Court: U.S. District Court — Eastern District of California
• Parties: JOSE DEJESUS RODRIGUEZ, Plaintiff, v. VERONICA VEGA, Defendant.

JOSE DEJESUS RODRIGUEZ, Plaintiff, v. VERONICA VEGA, Defendant.

No. 2:15-cv-0158 GGH PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

November 9, 2015

ORDER

Plaintiff is proceeding in this action pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).¹

Presently before the court is defendant Vega's motion to dismiss, filed May 15, 2015. (ECF No. 16.) Plaintiff has filed an opposition, to which defendant has filed a reply. Also before the court is plaintiff's motion to admit evidence, filed September 25, 2015. (ECF No. 27.) Plaintiff also filed a document appearing to allege new claims on November 2, 2015. (ECF No. 28.) Having reviewed this document as well as the motions and any filings in support of and in opposition to the motions, the court now issues the following order.²

I. BACKGROUND

This action is proceeding on the first amended complaint ("FAC"), filed March 4, 2015. (ECF No. 8.) Plaintiff alleges that defendant Vega, an employee of the San Joaquin County Human Services Agency who dispensed welfare benefits, took away his assistance through a "coercive, intimidating, deceitful and punitive campaign including harassment while purportedly investigating a report or grounds alleging that Plaintiff is not qualified to receive public assistance." (ECF No. 8 at 2.) This "relentless campaign" was intended to "first terminate and then disqualify plaintiff of nearly all life needs indigent class benefits...." (Id.) The FAC alleges that plaintiff's procedural due process rights were violated because defendant provided only a "right-to-sue status" and a post-termination proceeding wherein he was informed that all of his public assistance had been summarily terminated. This first claim is brought under 42 U.S.C. § 1983. (Id.) Plaintiff's second claim for relief is under the Americans with Disabilities Act ("ADA"), for denying him procedural due process based on his disability. He alleges that although he is not "totally permanently disabled," he is confined to a wheelchair due to chronic nerve and spinal pain, and is unable to work. (Id. at 3.) Plaintiff seeks compensatory damages.

Defendant moves to dismiss the amended complaint as moot because plaintiff has been found eligible for benefits and is either receiving them or he has yet to submit an application and supporting documentation for benefits. The motion also seeks dismissal of the due process claim and the ADA claim for failure to state a claim.

II. LEGAL STANDARDS

Defendant has brought his motion pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim, and also on mootness grounds. "Because standing and mootness both pertain to a federal court's subject-matter jurisdiction under Article III, they are properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6)." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Therefore, the motion will be analyzed under the respective standards applicable to defendant's theories for dismissal.

A. Rule 12(b)(1)

On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bearsthe burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).

First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendant must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).³

B. Rule 12(b)(6)

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. J.P. Morgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071. The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).

In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider new facts in a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

III. REQUEST FOR JUDICIAL NOTICE

Defendant has filed a request for judicial notice of various government records relating to discontinuation and reinstatement of plaintiff's General Assistance ("GA"), CalFresh⁴ and MediCal benefits, including notices of action in regard to these benefits, request for hearing, administrative hearing decision, and notice of expiration of certification. (ECF No. 16-2.)

All requests for judicial notice are granted pursuant to Fed. R. Evid. 201, as they do not require the acceptance of facts "subject to reasonable dispute" and are capable of immediate and accurate determination by resort to a source whose accuracy cannot reasonably be questioned. See In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781-82 (E.D. Cal. 1992); Fed. R. Evid. 201(b); Cal. ex. rel. RoNo, L.L.C. v. Altus Fin. S.A., 344 F.3d 920, 931 n. 8 (9th Cir. 2003).

The declaration of Joyce Solomon, submitted in conjunction with the exhibits attached to defendant's RJN, may only be considered with respect to defendant's Rule 12(b)(1) motion to dismiss on mootness grounds. See McCarthy, 850 F.2d at 560. It may not be considered in conjunction with defendant's Rule 12(b)(6) motion as only the pleadings, exhibits or matters subject to judicial notice may be considered in deciding such a motion. Outdoor Media Group, Inc., 506 F.3d at 899. New facts, such as those contained in the Solomon declaration, may not beconsidered in...