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Ostrofsky v. Sauer

March 5, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before this court is defendants' motion to dismiss plaintiff's fourth amended complaint or alternatively to strike portions thereof and for an order for more definitive statement.*fn1 For the reasons set forth below, defendants' motion is denied.


Plaintiff Linda Ostrofsky, a pro se litigant, filed her complaint in this action on May 25, 2007. Since that time, defendants have filed multiple motions to dismiss, and plaintiff has amended her complaint numerous times. On February 11, 2009, this court heard defendants' motion to dismiss plaintiff's Third Amended Complaint or, alternatively, for more definite statement. In a lengthy ruling following an extensive hearing, the court ordered that defendants' motion to dismiss be granted in part and that plaintiff be granted leave to file a Fourth Amended Complaint. (Dkt. Nos. 40, 41.) Plaintiff filed a Fourth Amended Complaint on December 24, 2009. (Dkt. No. 42.)

On January 8, 2010, defendants filed a Motion to Dismiss plaintiff's Fourth Amended Complaint (hereinafter "complaint"), in which they also seek relief to strike plaintiff's prayer for relief and an order for plaintiff to make a more definitive statement. (Dkt. No. 43.) For the reasons set forth below, the motion will be denied.


On a motion to dismiss, the court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694 (9th Cir. 1984). In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), however, a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). Factually unsupported claims framed as legal conclusions, and mere recitations of the legal elements of a claim, do not give rise to a cognizable claim for relief. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951 (May 18, 2009), citing Twombly, 550 U.S. at 555.

Pro se pleadings, such as the one at issue, are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Parduc, 551 U.S. 89 (2007). So-called "inartful pleading" by parties appearing pro se should not penalize a pro se litigant, particularly in civil rights actions. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Johnson v. State of Calif., 207 F.3d 650, 653 (9th Cir. 2000).


Relief Permitted Under ADA Claims

As set forth in detail in this court's September 17, 2009 findings and recommendations (Dkt. No. 40), plaintiff avers that she was discriminated and retaliated against in her workplace, the California Department of Rehabilitation, because of a disability.*fn2

Defendants now complain that the complaint's prayer for relief is improper because it continues to seek monetary damages rather than declaratory or prospective injunctive relief and that this is improper because defendants are immune from plaintiff's Americans with Disabilities Act ("ADA") claims seeking monetary damages. (Dkt. No. 43 at 3-4.)

In accordance with this court's prior orders, plaintiff has received and taken the opportunity to assert a discrimination claim under Title I of the ADA and a retaliation claim under Title V of the ADA. This court further ordered that these ADA claims seek only declaratory and prospective injunctive relief. (Dkt. 40 at 10.) Defendants now complain that plaintiff does not seek any declaratory or prospective injunctive relief in her Prayer for Relief and that "[t]his suit seeks money damages." Id. at 4:9. This argument fails.

A complaint is not subject to a motion to dismiss because the prayer seeks relief that is not recoverable as a matter of law. Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002). As the court noted in Bontkowski, any doubt on this score is dispelled by Federal Rule of Civil procedure 54(c), which provides that a prevailing party may obtain any relief to ...

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