The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff, Timothy S. Daubert, appearing pro se and proceeding in forma pauperis, filed the instant complaint under the Americans with Disabilities Act ("ADA") on August 20, 2009.
Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or 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). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.
In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Plaintiff is confined to a wheelchair. In his complaint, Plaintiff alleges a violation of section 504 of the American with Disabilities Act. Specifically, he alleges that Defendant, Lindsay Unified School District, failed to provide adequate seating to the handicapped at Lindsay High School Stadium. Plaintiff describes an incident in 1997 where he had to sit behind a fence and he could not see the game. He alleges that he has not been able to attend a football game at the stadium since that time because there is no handicapped seating. He also alleges that the school district has failed to make the bathrooms handicap accessible which is a violation of Federal Regulations 4.17. Finally, Plaintiff alleges that "[t]he concession stand serving area at the stadium is 41 inches. But [sic] the handicap [sic] have to back out of the exit." Complaint at pg. 1. Plaintiff seeks injunctive relief and monetary damages.
Plaintiff's complaint is confusing and fails to state a claim. As a preliminary matter, Plaintiff relies on Section 504 of the ADA as a basis for his claims. However, Section 504 of the ADA gives the Architectural and Transportation Barriers Compliance Board its authority to promulgate minimum guidelines and requirements under Title II and Title III of the American with Disabilities Act.*fn1 Americans with Disabilities Act of 1990, § 504, 42 U.S.C. § 12204. Therefore, this section does not appear to be directly applicable to Plaintiff's case. Furthermore, Plaintiff cites to "Federal regulations 4.17," which is not a complete citation. Finally, the Court is unable to understand the alleged violations at the concession stand, and how Plaintiff is effected by these violations. In sum, Plaintiff's allegations are ambiguous and he has not clearly identified the law he is relying on in support of his claims. Accordingly, Plaintiff's complaint will be dismissed and he will be given an opportunity to amend his claim.
In amending his claim, Plaintiff is advised that Title III of the ADA prohibits discrimination against any individual "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers" or "where ... removal of a barrier ... is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods." 42 U.S.C. § 12182(b)(2)(A)(iv), (v). Miller v. California Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008). "If removal of a barrier is not 'readily achievable,' a public accommodation must make its facilities available through 'alternative methods if such methods are readily available.'" 42 U.S.C. § 12182(b)(2)(A)(v). Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002).
Thus, in order to establish a prima facie case of discrimination under Title III of the ADA a plaintiff must show 1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of the disability. Molski v. M.J. Cable, Inc. 481 F.3d 724 (9th Cir. 2007). The enforcement provisions of Title III provide only ...