Thompson v. Hererra
| Decision Date | 19 January 2018 |
| Docket Number | Case No. 17-cv-05141-WHO,Case No. 17-cv-05163-WHO,Case No. 17-cv-05843-WHO |
| Court | U.S. District Court — Northern District of California |
| Parties | TRACEY N. THOMPSON, Plaintiff, v. DENNIS HERERRA, Defendant. |
Pro se plaintiff Tracey N. Thompson has filed three almost identical cases against Dennis Hererra (the City Attorney for San Francisco) stemming from an injury she suffered on a bus in San Francisco.
In November 2017, I adopted the Report and Recommendations dismissing Thompson's first two cases (17-cv-05141 and 17-cv-05163) because she failed to allege a claim under federal law and failed to allege any facts showing I had jurisdiction over any state law claim. I gave Ms. Thompson until December 14, 2017 to file amended complaints if she could fix those problems. On December 18, 2017, I adopted another Report and Recommendation and dismissed Thompson's third case (17-cv-05843) for the same reasons. I gave Ms. Thompson until January 17, 2018 to file an amended complaint in any or all of her three cases, giving her a final opportunity to allege a violation of federal law or allege that I have jurisdiction over her state law claims. I cautioned her that if she did not file an amended complaint, her cases will be dismissed for failure to prosecute.
As of today's date, Ms. Thompson has not filed an amended complaint in any of her three cases or otherwise attempted to fix the problems. Instead, on January 12, 2018, Thompson filed short, one-line requests in each of her cases asking the court to "reschedule" the case management conferences and "recalendar" her case. However, each of her cases has been dismissed for failure to state a claim. There is nothing to reschedule or recalendar.
As Ms. Thompson is pro se, I will give her one more chance. As explained in each of the Reports and Recommendations adopted by me in her cases (which are attached again here), Thompson has not alleged any facts to show that she has asserted is attempting to assert a violation of a federal law. In addition, Thompson cannot bring any state law claims (for personal injury or breach of contract) in federal court unless she can allege diversity jurisdiction; in other words that she and Herrera (and any other defendant) are residents of different states and that her damages exceed $75,000. If Thompson cannot allege a violation of a federal law or allege diversity jurisdiction, she cannot litigate her claims in federal court.
Therefore, Thompson is given until February 19, 2018 to file amended complaints in one or more of her cases alleging a violation of a federal law or alleging facts showing diversity jurisdiction. If she does not do so, all three of her cases will be dismissed for failure to prosecute. Fed. Rule Civ. Proc. 41(b).
IT IS SO ORDERED.
Dated: January 19, 2018
/s/_________
United States District JudgeUNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Francisco Division
The plaintiff Tracey N. Thompson, who is representing herself and proceeding in forma pauperis, sued Dennis Herrera, the City Attorney of San Francisco, in two similar cases alleging injury to her ankle that she apparently sustained on a wheelchair lift on a bus and claiming that wheelchair lifts on buses need to be federally mandated.1 She consented to magistrate-judgejurisdiction in one case and declined jurisdiction in the other.2 The court related the cases.3 See Civ. L.R. 3-12. The court directs the Clerk of Court to reassign the cases to a district judge and recommends that the newly assigned judge dismiss the complaints with leave to amend because Ms. Thompson fails to plead a plausible claim. See 28 U.S.C. § 1915(e)(2)(B).
On August 15, 2017, Ms. Thompson filed a complaint entitled: "All Buses Need Federal Mandated Wheelchair Lifts to Avoid Smashing a Woman's Foot and Ankle."4 She alleges the following:5
On September 5, 2017, Ms. Thompson filed another complaint entitled "Wheelchair Lifts On Buses Need to Be Federally Mandated."6 She alleges the following:7
Tracey N. Thompson; experienced a horrible personal injury incodent [sic]. A wheelchair lift flapped into the back of her left ankle. Ambulance Report carried her to Emergency Room. Bus driver told her it[']s ok to ride the ramp up onto the bus. Then it collapsed and folded three ways over her foot and ankle. Pictures of the wheelchair lift available on request. It was a painful experience for Tracey. Shehad six stiches in her left ankle. Bent tendon - a lot of pain.
A complaint filed by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing the United States Marshal to serve the complaint pursuant to Federal Rule of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127. "The language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6)." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
Under Rule 12(b)(6) and § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (internal citations omitted). The complaint must contain sufficient factual allegations, accepted as true, "'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
When dismissing a case for failure to state a claim, the Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez, 203 F.3d at 1130 (internal quotations and citation omitted).
Ms. Thompson alleges a personal injury. Absent diversity jurisdiction, a personal-injury claim ordinarily is filed in state court. See, e.g., Siler v. Dillingham Ship Repair, 288 F. App'x 400 (9th Cir. 2008) (mem.). To invoke diversity jurisdiction, the complaint must allege that "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States . . . ." 28 U.S.C. § 1332(a)(1). When a case involves two citizens of California, there is no diversity jurisdiction. Sinclair v. Boughton, 419 F.2d 129, 130 (9th Cir. 1969) (per curiam).
Another possibility is that Ms. Thompson tries to plead a federal claim predicated on a disability. (She does not reference the Americans with Disabilities Act ("ADA").) Title II of the ADA establishes standards for public transportation provided by public entities. Boose v. Tri-County Metro. Transp. Dist. of Oregon, 587 F.3d 997, 1001 (9th Cir. 2009) (citing 42 U.S.C. § 1243). Title III offers injunctive relief against private operators of "specified public transportation," including buses. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 126-27 (citing 42 U.S.C. § 12181 (defining "specified public transportation")).
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under Title II of the ADA or the Rehabilitation Act, a plaintiff must allege the following: "(1) she is an individual with a disability under the Act; (2) she is 'otherwise qualified' to participate in or receive the benefit of the entity's services, programs, or activities, i.e., she meets the essential eligibility requirements of the entity, with or without reasonable accommodation; (3) she was either excluded from participation in or denied the benefits of the entity's services, programs, or activities, or was otherwise discriminated against by the public entity solely by reason of her disability; and (4) the entity is a public entity (for the ADA claim)...
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