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Daubert v. City of Lindsay

September 14, 2010

TIMOTHY S. DAUBERT, PLAINTIFF,
v.
CITY OF LINDSAY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Timothy S. Daubert ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint under the Americans with Disabilities Act ("ADA") on August 10, 2010.

DISCUSSION

A. Screening Standard

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.

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).

B. Allegations

Plaintiff is a disabled veteran. He alleges that Defendant City of Lindsay placed three "dips" in various streets to slow traffic. He contends that on August 2, 2010, he and his wife were in the car on their way to the post office. When they reached Honolulu and Ashland, Plaintiff's wife drove slowly over a dip in the road. Plaintiff felt sharp pain in his spine.

Plaintiff contends that these dips violate the Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("RA") because they cause him pain. He also alleges a violation because the dips impede emergency vehicles, which puts everyone in the City of Lindsay at risk.

Plaintiff requests that Defendant be ordered to remove the dips. He also requests monetary damages for pain and suffering.

C. Discussion

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To establish violation of Title II of ADA, a plaintiff must show that

(1) he is a qualified individual with a disability; (2) he was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, and (3) such exclusion or discrimination was by reason of his disability. Lowell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

Similarly, to establish a violation of Section 504 of the RA, a plaintiff must show that (1) he is handicapped within the meaning of the RA; (2) he is otherwise qualified for the benefit or services sought; (3) he was denied the benefit or services solely by reason of her handicap; and (4) the program providing the benefit or services receives federal financial assistance. Id. Although Plaintiff complains of dips in certain roads, he does not allege that the dips prevented him from participating in any services or otherwise resulted in discrimination on the ...


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