UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA -- FRESNO DIVISION
November 19, 2010
TIMOTHY S. DAUBERT, PLAINTIFF,
CITY OF LINDSAY, DEFENDANT.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
(Docket No. 1)
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND
On September 1, 2010, Plaintiff Timothy S. Daubert ("Plaintiff") filed a complaint against Defendant City of Lindsay ("Defendant") alleging generally that Defendant violated Title II of the Americans with Disabilities Act of 1990 ("ADA"). (Doc. 1.)
A. Screening Standard
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case, and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against 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. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
B. Failure to State a Claim
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), 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). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Title II of the Americans with Disabilities Act provides:
[N]o 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 prove that a public program or service violates Title II of the ADA, a plaintiff must show:
(1) he is a "qualified individual with a disability," (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity, and (3) such exclusion, denial of benefits or discrimination was by reason of his disability. See id. § 12132; Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997).
The ADA defines a disability in three ways: (1) "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual, (2) "a record of such an impairment," or (3) "being regarded as having such an impairment." 42 U.S.C. § 12102(1). In this regard, a plaintiff has three ways to plead a disability. To adequately allege an actual disability under the ADA, a plaintiff must allege two elements: "(1) that she [or he] has a physical or mental impairment; and (2) that such impairment substantially limits one or more of her [or his] major life activities." Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996).
Plaintiff's allegations are as follows:
1. Plaintiff States: On August 17[,] 2009[,] at about 5am [sic] Plaintiff went to the Lindsay Community Center 801 ParkSide Lindsay Ca. 93247 [sic] to [g]et some commodities [sic]. The truck comes to the Community Center between 5 am and 6 am [sic].
2. Plaintiff States: There were many bumps and potholes in the street that Plaintiff had to go on because there were no sidewalks in the City Park and Plaintiff had to go down this street to get to the Community Center. The Street [sic] inside the City Park makes a half circle from North to South or visa versa the Community Center Sits on the North side of the Park [sic].
3. Plaintiff States: Plaintiff hurt his buttock and his spine going over these bumps and potholes that Plaintiff could not see early in the morning [sic].
4. Plaintiff States: Plaintiff[']s wife found bruises on Plaintiff['s] buttocks.
5. Plaintiff States: Plaintiff[']s [sic] Dr. Wei Gu at the Veterans Hospital in Fresno ordered Plaintiff a softer seat and a new wheelchair that recline[s] because of the constant bouncing on the rough street causing pressure on Plaintiff['s] spine.
6. Plaintiff States: The City Park is in violation of Title 2 of the Americans With Disability Act 1990 [sic].
7. Plaintiff States: Plaintiff has to go to the Community Center every other month and at other times. Plaintiff request[s] that his Personal Injury [sic] complaint against the Defendant be granted. And because injury will happen again if the potholes are not fixed. And the lack of sidewalks poses a danger to myself and the rest of the disabled [sic]. Plaintiff request[s] immediate Injunctive Relief [sic]. (Doc. 1, ¶¶ 1-7.)
First, the Court infers that Plaintiff uses a wheelchair as he states that his doctor has ordered him a new wheelchair (see Doc. 1, ¶ 5), but there is no allegation that Plaintiff is limited to a wheelchair or other allegations that explain the nature of Plaintiff's disability. There must be some allegation showing that Plaintiff is a qualified individual with a disability pursuant to Title II. See 42 U.S.C. § 12132.
Second, although Plaintiff complains of potholes in a certain road, he does not allege that the potholes prevented him from participating in any services or otherwise resulted in discrimination on the basis of his disability. Plaintiff alleges that proceeding over or through these potholes hurt his buttocks and spine (see Doc. 1, ¶¶ 3-5), but this is not sufficient to state a claim under the ADA.
For these reasons, Plaintiff's complaint must be dismissed. Plaintiff will be given an opportunity to amend his complaint to correct these deficiencies and must submit an amended complaint within thirty (30) days. Failure to do so will result in a recommendation that this action be dismissed.
Plaintiff is reminded that an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be complete in itself without reference to the prior or superseded pleading. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)). Plaintiff may not add any new, unrelated claims to this action in his amended complaint. Any attempt to do so will result in an order striking the amended complaint or portions thereof.
Accordingly, Plaintiff's complaint is DISMISSED, and Plaintiff is GRANTED thirty (30) days LEAVE TO AMEND.
IT IS SO ORDERED.
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