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January 23, 2004.

CALVIN R. BOWMAN, Plaintiff,

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

On January 23, 2004, this Court heard argument on defendants' motion to dismiss under Fed.R.Civ.Pro. 12(b)(6). Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS defendants' motion to dismiss with regard to the individual defendants (case Nos. C 03-3041 SI and C 03-3042 SI), without leave to amend. With regard to the corporate defendant, U.S. Freight Systems, Inc. (case No. C 03-3043 SI), the Court GRANTS defendant's motion to dismiss, with leave to amend on or before February 20, 2004.


  Plaintiff, pro se litigant Calvin R. Bowman, initially filed these three lawsuits in the Southern District of Indiana. That court transferred the actions to this district. This Court granted plaintiff's petition to proceed in forma pauperis in all three suits. Plaintiffs complaints against Victor Duong, David Duong and U.S. Freight Systems, Inc., appear to concern employment-related discrimination claims. Defendants have moved this Court to dismiss the complaints for failure to state a claim under Fed.R.Civ.Pro. 12(b)(6).


  Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it Page 2 fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).

  In answering this question, the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

  If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has urepeatedly 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 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).


 A. The individual defendants, David Duong and Victor Duong

  Plaintiff has filed employment discrimination complaint forms. With regard to the individual defendants, David Duong and Victor Duong, plaintiff alleges claims under the following statutes: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5; The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621; The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101; The Rehabilitation Act, 29 U.S.C. § 701, et seq.; and 42 U.S.C. § 1981. Plaintiff also alleges a claim under "Labor S 98.7(c)," presumably Cal. Labor Code § 98.7(c).

  Employees must generally sue their employers (here, for example, U.S. Freight Systems, Inc.), not other co-employees or workplace supervisors, for employment discrimination claims under Title VII, the ADEA, the ADA and the Rehabilitation Act. Miller v. Maxwell's International Inc., 991 F.2d 583, 587-88 (Title VII and ADEA); U.S.E.E.O.C. and Wessell v. AIC Security Investigations. Ltd., 55 F.3d 1276, 1279 (7th Cir. 1995) (ADA): Stern v. California State Archives, et al., 982 F. Supp. 690, 692 (E.D. Cal. 1997)(ADA): and Campos v. San Francisco State University, 1999 WL 1201809 (N.D. Cal.1999) Cal. 1999), Page 3 at *9-10 (ADA).

  With respect to plaintiff's apparent claim under Cal. Labor Code § 98.7, plaintiff apparently received Right-to-Sue letters from the California Department of Fair Employment & Housing, possibly in connection with this claim. The relationship between plaintiff and the individual defendants remains unclear from the complaint. However, under California law, even supervisors are not employers; thus they cannot be held liable for discrimination. See Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 80 (1996) ("only employers-and not individual supervisory employees-are at risk of liability for discrimination.").

  Plaintiff also alleges a claim based on 42 U.S.C. § 1981. While this might otherwise apply to individuals, it relates only to racial discrimination done under color of state law. As is discussed in the next section, plaintiff has not pled and, by all appearances, cannot plead state action in this case.

  For these reasons, this Court GRANTS defendants' motion to dismiss the complaints against the individual defendants, David Duong and Victor Duong, without leave to ...

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