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Pombrio v. Villaraigosa

October 15, 2010

SCOTT E. POMBRIO, PLAINTIFF,
v.
MAYOR A. VILLARAIGOSA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

Plaintiff, proceeding pro se and in forma pauperis, filed a civil complaint on August 16, 2010 ("Complaint"). On August 20, 2010, plaintiff filed a First Amended Complaint. Plaintiff also filed a request for a temporary restraining order and a preliminary injunction, which United States District Judge George H. King denied on September 8, 2010.

Congress has mandated that courts perform an initial screening of in forma pauperis civil actions. This Court may dismiss such an action before service of process if it concludes that the complaint is frivolous, fails to state a claim upon which relief can be granted, or seeks relief against a defendant who is immune from the requested relief. 28 U.S.C. § 1915(e)(2). In screening such a complaint, the Court must construe the allegations of the complaint liberally and afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint, unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

ALLEGATIONS OF THE COMPLAINT

Plaintiff alleges that he has a disability within the meaning of the Americans with Disabilities Act of 1990 ("ADA"). Specifically, he alleges that he is mobility-impaired as a result of three assaults, and he also suffers from inguinal hernias and has a severely impaired right arm. (First Amended Complaint ¶ 9.) The named defendants are Los Angeles Mayor Antonio Villaraigosa and the "City-County of Los Angeles."*fn1 (Id. at 1.)

Plaintiff alleges a denial of access to the Los Angeles County Law Library ("Law Library") and the Los Angeles Public Library, Main Branch ("Main Library") (collectively "Libraries"). (First Amended Complaint ¶¶ 5, 8.) Plaintiff alleges that the Libraries are owned and operated by the "City and County of Los Angeles." (Id. at ¶ 5.) In fact, the Law Library is owned and operated by the County of Los Angeles ("County"), and the Main Library is owned and operated by the City of Los Angeles ("City").

The First Amended Complaint alleges a single cause of action. (First Amended Complaint at pp. 7-9.) Plaintiff contends that defendants violated the ADA by implementing and enforcing a policy prohibiting library users from: bringing bags containing their personal possessions into the Libraries; "checking" such bags and possessions; or leaving such bags and possessions on outside patios. (First Amended Complaint ¶ 8.) Plaintiff alleges that these policies prevent him from using the Libraries, because it causes him pain to walk up and down hills between the Libraries and a place where he can store his bags. (Id.)

On July 28, 2010, plaintiff visited the Law library to work on a motion, and supervisor J. Doe told him that he could not enter with his bag. (First Amended Complaint ¶ 10.) Plaintiff offered to leave the bag on the patio, but J. Doe said that the bag would be thrown out. (Id.) Plaintiff inquired, to no avail, about his rights as a "homeless disadvantaged person." (Id.)

On July 31, 2010, plaintiff visited the Main Library to use the restroom, and J. Doe 2 told him that no bags were allowed in the library. (First Amended Complaint ¶ 10.) Plaintiff also describes an earlier incident when he was denied access to the Main Library grounds. On July 24, 2010, at about 8:30 p.m., plaintiff entered the grounds of the Main Library to fill his water bottle at the fountain. (Id.) There was a private party at a restaurant on the grounds. (Id.) Three security guards forced plaintiff to leave by a stairway, despite his protestations that he was mobility-impaired and could not use stairs, and plaintiff sprained his foot. (Id.) A fourth guard refilled plaintiff's water bottle for him. (Id.)

Plaintiff contends that the policy prohibiting library patrons from taking bags to the library has prevented him from accessing the Libraries "without undue loss of time or increased pain." (First Amended Complaint ¶ 22.) Plaintiff also contends that the policy is being enforced in a discriminatory manner. He contends that, on August 10, 2010, he saw a patron sitting at a Law Library table, and underneath the table was an open leather satchel containing a mid-sized dog. (Id. at ¶ 24.)

Although the "Jurisdiction and Venue" section of the First Amended Complaint states that "[t]his is an action for declaratory and injunctive relief and damages," the First Amended Complaint does not contain a prayer for relief. In fact, the text of the pleading ends in the middle of an incomplete sentence, followed by a date and signature. (See First Amended Complaint at p. 9, ll. 27-28.)

DISCUSSION

I. PLAINTIFF SHOULD CLARIFY WHETHER HE IS ASSERTING A SECTION 1983 CLAIM

In his original Complaint, plaintiff asserted two claims: an ADA claim; and a Section 1983 claim asserting a violation of the Due Process Clause. In the First Amended Complaint, however, plaintiff alleges a single "cause of action", which he states is based on a "violation of the ADA," and he expressly describes his federal claims as arising under the ADA. (First Amended Complaint at ΒΆ 1 and p. 7, l. 5.) Thus, it ...


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