Todd v. Short

• Decision Date: 20 December 2012
• Docket Number: No. 2:12-cv-1887 KJM KJN PS,2:12-cv-1887 KJM KJN PS
• Court: U.S. District Court — Eastern District of California
• Parties: DEREK TODD, Plaintiff, v. SPENCER SHORT, Defendant.

DEREK TODD, Plaintiff,
v.
SPENCER SHORT, Defendant.

No. 2:12-cv-1887 KJM KJN PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: December 20, 2012

FINDINGS AND RECOMMENDATIONS

Plaintiff Derek Todd ("plaintiff") is proceeding without counsel in this action and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.¹ Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

For the reasons stated below, the undersigned grants plaintiff's application to proceed in forma pauperis, but recommends that plaintiff's complaint be dismissed. Specifically, the undersigned recommends that plaintiff's claims be dismissed with prejudice for failure to state a claim on which relief can be granted, and that the court decline to exercise supplemental jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(c).

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I. APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's application and declaration make the showing required by 28 U.S.C. §§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis.

II. SCREENING PLAINTIFF'S COMPLAINT

A. General Screening Standards

The determination that a plaintiff may proceed in forma pauperis does not complete the inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that: the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

In assessing whether a plaintiff's complaint fails to state a claim on which relief can be granted, the court adheres to the "notice pleading" standards. See, e.g., Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). The notice pleading standards are codified, in part, in Federal Rule of Civil Procedure 8(a), which provides:

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(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Additionally, a complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 556 U.S. at 663). 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, 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 (citations and quotation marks omitted).

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 the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See, e.g., Lopez, 203 F.3d at 1130-31; Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

B. Plaintiff's Complaint

Plaintiff alleges that during family law proceedings in state court, attorney Spencer Short ("defendant") "gave legal advice" to plaintiff's child's mother, real party in interest Sondra Hoffman, "during numerous court proceedings without announcing to the court or to the Plaintiff that he had lawfully been retained as counsel."² (Compl., Dkt. No. 1 at 1.) Plaintiff also alleges that defendant failed to file a document in state court. (Id.) Plaintiff alleges that defendant violated California Rule of Court 5.660 when he failed to "provide proof to the court that he was a qualified family law attorney," and otherwise violated the California Code of Civil Procedure and State Bar Rules of Professional Conduct. (Id. at 11, 13.) Plaintiff also alleges that defendant violated California Penal Code § 166 for "violat[ing] the state judge's order." (Id. at 13-14.)

Plaintiff further alleges that defendant asked plaintiff questions during a family court proceeding in a way that violated his rights. (Id. at 1, 14, 17 [defendant allegedly questioned plaintiff "in his child custody court trial" and "during court proceedings"].) Specifically, plaintiff alleges that defendant's questions "discriminated against Plaintiff's disability and violated the Americans Disability Act [sic]," "violated Plaintiff's right to equal protection" under the Fourteenth Amendment, and "violated the Civil Rights Act of 1964 [42 U.S.C. 2000e]." (Id. at 1-2, 17 [defendant allegedly asked plaintiff to "disclose his disability in his child custody trial," "asked the Plaintiff if he had a mental disorder during the Plaintiff's child custody trial for his daughter," and "asked the Plaintiff if he had a discussion about gay marriage with his child's school teacher at a 'meet and greet' school function."].) Additionally, plaintiff alleges that defendant's actions violated "Plaintiff's right to equal protection under the law that is

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protected under the 14th Amendment of the United States Constitution." (Id. at 12-14, 17, 20-21.)

Plaintiff claims to "bring this complaint under 42 U.S.C. § 2000e, 42 U.S.C.§ 12132 and 42 U.S.C. § 2000b." (Id.) Construing his pleading liberally, as the undersigned must do at this procedural posture, it appears that plaintiff seeks to make claims under: (1) Title II of the Americans With Disabilities Act (42 U.S.C. § 12132); (2) Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000b, 2000e); (3) the Equal Protection Clause of the Fourteenth Amendment; (4) 18 U.S.C. § 245; and (5) California state law claims under California Code of Civil Procedure § 284(1) and California Penal Code § 166.

III. DISCUSSION

A. Americans With Disabilities Act

Plaintiff appears to allege that defendant is liable under Title II of the Americans with Disabilities Act ("ADA") and cites to 42 U.S.C. § 12132. (Compl. at 1-2, 17.)

Pursuant to 42 U.S.C. § 12132,

Subject to the provisions of this subchapter, 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.

To state a claim under this section, a plaintiff must allege facts plausibly suggesting that: (1) he is a 'qualified individual with a disability'; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination by a public entity was by reason of his disability. Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (citing 42 U.S.C. § 12132) (emphasis omitted).

Plaintiff fails to plausibly allege that defendant constitutes a "public entity" for purposes of Title II of the ADA. See Weinreich, 114 F.3d at 978. A "public entity" under Title

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II is: "(A)...