The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S COMPLAINT
Plaintiff Ruby J. Earl ("Plaintiff") filed a complaint in this Court on September 16, 2011, naming the Fresno Unified School District ("FUSD") as Defendant. She asserts violations of her rights pursuant to Title 42 of the United States Code section 2000d, a violation of the Americans with Disabilities Rights Act, and a state law claim pursuant to the California Education Code. (Doc. 2.) Generally speaking, Plaintiff's complaint alleges racially discriminatory attitudes and conduct by school officials that have purportedly prevented her from equal access to sports officiating contracts over a period of time. ( See Doc. 2 at 4-6.)
"Notwithstanding any filing fee, or any portion thereof, that may have been paid," the Court shall dismiss a case at any time if it determines that 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). See also Omar v. Sea-Land Service, Inc. , 813 F.2d 986, 991 (9th Cir. 1987); Wong v. Bell , 642 F.2d 359, 361-62 (9th Cir. 1981).
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.
If the Court determines that the complaint fails to state a claim, leave to amend should 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). Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the Plaintiff cannot prevail on the facts that he has alleged and that an opportunity to amend would be futile. Lopez , at 1128.
A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams , 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Id.
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).
A pleading may not simply allege a wrong has been committed and demand relief. The underlying requirement is that a pleading give "fair notice" of the claim being asserted and the "grounds upon which it rests." Conley v. Gibson , 355 U.S. 41, 47-48 (1957); Yamaguchi v. United States Department of Air Force , 109 F.3d 1475, 1481 (9th Cir. 1997).
In the Complaint, Plaintiff contends jurisdiction arises under Title 28 of the United States Code sections 1331 and 1343, and also under section 1346 "because the United States of America is a party." (Doc. 2 at 2-3.)
Jurisdiction is proper pursuant to sections 1331 and 1343 of Title 28 of the United States Code because Plaintiff has asserted claims arising under the Constitution and laws of the United States. However, the United States is not a party to this action. Therefore, jurisdiction does not arise under that provision.
C. Plaintiff's Federal Claims
Initially, this Court notes that while the "Nature of the Case" section of Plaintiff's Complaint references sections 1981, 1983, 1985 and 1986 of Title 42 of the United States Code, she fails to assert separate violations in the causes of action commencing at page six of her complaint. Nevertheless, because amendment would be futile, and pro se complaints are to be liberally construed, this Court will address the purported violations here.
1. Section 1981 of Title 42 of the United States Code Title 42 of the United States Code section 1981 provides as follows:
Equal rights under the law
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined
For purposes of this section the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, ...