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CURRIER v. WHIM COMPANY

May 25, 2004.

PAUL T. CURRIER, Plaintiff, V. WHIM COMPANY, VICTOR MESHKOVSKY, ROBERT CHOW, COVAD COMMUNICATIONS GROUP, INC., COVAD COMMUNICATIONS COMPANY, MCI COMMUNICATIONS CORPORATION, and DOES 1-100, Defendants


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

WITHOUT LEAVE TO AMEND, DENYING MOTION FOR TEMPORARY ORDER DISMISSING COMPLAINT RETRAINING ORDER, AND DENYING APPLICATION TO PROCEED IN FORM A PAUPERIS
Now before the Court are plaintiff's amended complaint and application to proceed in forma pauperis ("IFP"), and motion for a temporary restraining order, both filed on April 15, 2004. For the reasons set forth below, the Court hereby DISMISSES plaintiff's complaint without leave to amend, DENIES plaintiff's motion for a temporary restraining order, and DENIES plaintiff's IFP application.

BACKGROUND

  According to the Amended Complaint for Damages ("Compl."), plaintiff Paul Talcott Currier is one of the operators of Seven Seas Clubs, Inc., a California corporation engaged in the business of providing meeting space and other materials for recovering alcoholics to maintain their sobriety. Compl. at ¶¶ 1. In November of 2002, Plaintiff entered into a lease with Victor Meshkovsky, general partner of the WHIM Company, for the basement space in a building owned by Meshkovsky and WHIM at 215 Leidesdorff Street in San Francisco's financial district. Compl. at ¶¶ 3, 8. Plaintiff used this space to hold meetings of the Seven Seas Club, to run other businesses, and as his living space. Compl. at ¶ 28. There is toxic mold growing in the building and raw sewage has flooded the basement. Compl. at ¶ 11, 13, 20. This has a negative impact on plaintiff's business. Compl. at ¶ 20. Plaintiff acknowledges that he has failed to pay rent. Compl. at Ex. A.

  In January of 2003, plaintiff began negotiations with defendant to lease or purchase the entire building under a "master lease-contract to purchase." Compl. at ¶ 9. During the period beginning in March of 2003 and ending in March 2004, plaintiff made multiple offers to buy defendant's building. Compl at ¶ 11. Each time, plaintiff offered four million dollars for the building, with the exception of one offer to buy the building at issue together with a second building for 4.5 million dollars. Compl. at Exs. A, E-H. In February of 2004, however, plaintiff discovered that the building requires two to five million dollars in renovations to comply with San Francisco building and safety codes. Compl. at ¶ 11. Defendants sued plaintiff for unlawful detainer and evicted him from the premises. Compl. at ¶ 28, 41, 88, Ex. E.

  On April 7, 2004, plaintiff filed this action against defendants WHIM Company, Victor Meshkovsky, Robert Chow and Does 1-100, alleging numerous state causes of action including fraud, as well as federal causes of action under the Americans with Disabilities Act ("ADA") and the Racketeering Influenced Corrupt Organizations Act ("RICO"). Plaintiff sought IFP status, so the Court reviewed the complaint pursuant to 28 U.S.C. § 1915 and, on April 13, 2004, dismissed that complaint with leave to amend. Plaintiff filed the amended complaint on April 15, 2004, adding new defendants Covad Communications Group, Covad Communications Co., and MCI Communications Corp. ("Telecom Defendants"). Plaintiff alleges that defendants WHIM, Chow, Meshkovsky and Does 1-100 violated the ADA because they discriminatorily refused to sell the building to plaintiff based on their knowledge that plaintiff and his clients are alcoholics, Compl. at ¶ 122-126, 130-132, and that they violated RICO by committing mail fraud, wire fraud, bank fraud, and by conspiring to commit those violations. Compl. at ¶ 186-195. Plaintiff does not assert any of his federal causes of action directly against the Telecom Defendants.

  LEGAL STANDARD

  IFP applications are reviewed under a two-part analysis under 28 U.S.C. § 1915. This analysis looks first to whether a plaintiff meets the requisite financial status to be permitted to proceed in federal court without first paying a filing fee. 28 U.S.C. § 1915(a)(1). The second stage of the analysis examines a plaintiff's complaint to ensure that it states cognizable, non-frivolous claims. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). If the Court determines that a plaintiff's assets exceed the maximum allowable amount, or that the complaint fails to state a claim, it must dismiss the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that a court may dismiss an action under § 1915 if the "complaint neither identifies any constitutional or statutory right that was violated nor asserts any basis for federal subject matter jurisdiction . . .").

  Courts treat the second prong of the analysis similarly to a motion to dismiss filed by a defendant. If it is "clear that no relief could be granted under any set of facts that could be proved consistent with the [plaintiff's] allegations," then it is proper to dismiss an IFF. See Ascon Properties. Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989) (applying standard of review for motions to dismiss under Federal Rule of Civil Procedure 12(b)(6)). If a plaintiff alleges multiple causes of action that include both state and federal claims and the federal claims are dismissed, the Court will decline to assert supplemental jurisdiction over the remaining state-law claims. 28 U.S.C. § 1367(c)(3). Also similar to a motion to dismiss, all material allegations in an IFP complaint are taken as true and construed in the light most favorable to the plaintiff. See NL Ind., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986) (applying Federal Rule of Civil Procedure 12(b)(6)).

  DISCUSSION

  The first stage of IFP analysis requires that a plaintiff file an affidavit describing the totality of the plaintiff's assets and stating that the plaintiff is unable to pay the required fee. 28 U.S.C. § 1915(a)(1). Plaintiff has filed this affidavit, indicating that he has no assets and that his income is only a draw of $84 per week. IFP Application at 1:25. The Court notes that the IFP affidavit is somewhat inconsistent with the complaint, which alleges that the Seven Seas Club presently earns $l,500/month (though it is losing money monthly) and that he has made several multimillion-dollar offers to purchase defendant's office building. Compl. at ¶¶ 11, 27, 30, Exs. A, E-H, IFP Application at 2:1-5. Based on plaintiff's multiple offers to buy the office building in question, the income figure of $84 per week that plaintiff describes in his IFP application seems dubious. Notwithstanding this doubt, the Court will assume for purposes of this order that plaintiff's affidavit provides a true valuation of his assets and, accordingly, places him within the parameters necessary to grant an IFP application.

  In the second stage of IFP analysis, the Court reviews plaintiff's complaint to determine whether it states a cognizable cause of action against the defendants. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court will review plaintiff's federal allegations before his state law allegations, because a failure to adequately plead a federal cause of action will result in dismissal of the entire case.

 1. ADA claim

  Plaintiff alleges that defendants refused to sell him the building on Leidesdorff Street because he and his clients are alcoholics. Compl. at ¶¶ 24-25, 99-103. The ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the . . . facilities . . . or accommodations of any place of public accommodation by any person who owns, . . . a place of public accommodation." 42 U.S.C. § 12182(a). The term "disability" under the ADA means "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual. 42 U.S.C. § 12102(2)(A). This definition also protects individuals who are not necessarily disabled but are regarded as having such impairments. 42 U.S.C. § 12102(2)(C). The analytical method for determining disability makes the ADA more than a mere laundry-list of disabilities entitling certain individuals to accommodation. See Burch v. Coca Cola Co., 119 F.3d 305, 315-316 (5th Cir. 1997) (establishing that alcoholism is not an per se disability). Ultimately, the "true determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment that person has, but rather on the effect of that impairment on the life of the individual. Some impairments may be disabling for particular individuals but not for others." 29 C.F.R. § 1630 App. (1996). Consistent with this framework, Congress has not included alcoholism in the ADA as a per se disability, because, without more, it is not one.*fn1 The Court previously found plaintiff s allegations that defendants refused to sell him the building at issue in this case because plaintiff and his clients are alcoholics to be insufficient, because plaintiff did not indicate that his alcoholism actually constitutes an impairment that substantially limits a major life activity. That is, plaintiff did not allege that his alcoholism caused any physical or mental impairments that could render him disabled, and his prior conclusory statements did not make it so. Plaintiff has not cured this defect in his complaint. While plaintiff's ...


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