The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE AND GRANTING LEAVE TO AMEND
Defendants San Diego Housing Commission and Juan Galvan move to dismiss the second amended complaint ("SAC") pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Plaintiff filed an untimely opposition to the motion on February 19, 2008. The court finds this motion appropriate for submission without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set forth below, the court GRANTS the motion to dismiss without prejudice for failure to state a claim, and GRANTS leave to amend.
Plaintiff is a low-income disabled individual who qualified for the Zero Percent Deferred Payment Loan Program offered by defendant San Diego Housing Commission ("SDHC"). (Mot. to Dismiss at 1-2.) He receives Social Security disability payments and is allegedly disabled within the meaning of the Americans with Disabilities Act. (SAC at 13.) Defendants note that Plaintiff is a state-designated vexatious litigant. (Mot. to Dismiss at 2.)
Plaintiff hired Defendant Rigo Uribe, a general contractor doing business as defendant Strong Arm Construction, to complete the repairs on Plaintiff's home.*fn1 (Id. at 2.) Defendants Galvan and Ballow are employees of SDHC. (Id. at 1.) This case arises out of Defendants' alleged failure to finish repairs on Plaintiff's house.
Plaintiff filed his original complaint on February 27, 2007. On June 19, 2007, the court granted Defendants' motion to dismiss the original complaint for failure to state a claim. (Doc. no. 30.) The court gave Plaintiff 30 days to amend his complaint. On July 24, 2007, nunc pro tuncto July 13, 2007, Plaintiff filed a first amended complaint ("FAC"). (See Doc. no. 32.) On October 29, 2007, the court granted Defendants' motion to dismiss the FAC for failure to state claim, and gave Plaintiff 30 days' leave to amend. (Doc. no. 41.) Plaintiff requested a 15-day extension of time to file an amended complaint, which the court granted on November 30, 2007. (Doc. no. 45.) Plaintiff then filed the SAC on December 27, 2007. (See Doc. no. 47 (entitled "Motion for Third Amended [Complaint]").) Despite Plaintiff's failure to comply with the extended deadline, the court deems the SAC timely filed.
The title of the SAC indicates that Plaintiff seeks damages for misrepresentation and deceit, breach of contract, conspiracy, emotional distress, discrimination, sexual harassment, violation of 42 U.S.C. § 1983, and possibly violation of the Americans with Disabilities Act ("ADA"). In the body of the SAC Plaintiff also appears to allege a violation of the Rehabilitation Act. Many of these claims arise under state law. Federal jurisdiction, if any, must be premised on the existence of a federal question because diversity of citizenship does not exist. Plaintiff seeks $1,002,000 in punitive damages. (SAC at 45.)
In their motion, Defendants seek dismissal of the complaint for (1) failure to follow mandatory claim filing procedures under the California Tort Claims Act and (2) failure to state a claim.
Rule 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). In evaluating a 12(b)(6) motion, the court must accept the complaint's allegations as true and construe them in the light most favorable to Plaintiff. See, e.g., Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (U.S. May 21, 2007) (allegations must provide "plausible grounds to infer" that plaintiff is entitled to relief). The court should grant 12(b)(6) relief only where the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In testing the complaint's legal adequacy, the court may consider material properly submitted as part of the complaint or subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).
Where a plaintiff in a civil rights case appears in propia persona, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panaki v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1998). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Nevertheless, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A complaint's "[v]ague and conclusory allegations of official participation in civil rights violations" will not survive a motion to dismiss. Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state claim under § 1983). Instead, "[t]he plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Id. at 649 (internal quotation omitted).