United States District Court, E.D. California
WAYNE D. SMITH, Plaintiff,
AZIZ SHARIAT, ET AL., Defendants.
ALLISON CLAIRE, Magistrate Judge.
Pending before the court is defendant Aziz Shariat's January 17, 2014 motion to dismiss, set for hearing on April 2, 2014. The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. E.D. Local Rule 230. On review of the motion and the documents filed in support and opposition, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL ALLEGATIONS
The operative first amended complaint ("FAC") is, like the original pleading, disjointed and difficult to comprehend. As best as the court can discern, plaintiff entered into a contract with Don Bagwell, manager of the Chiquita Family Camp Ground and RV Park ("Camp Chiquita"), to perform work on the grounds, including investigation of the campground residents' drug use and the accuracy of the electrical meters on the grounds. As to the electrical meters, plaintiff noticed that Camp Chiquita was padding the charges for its own profit.
In April 2012, plaintiff purchased a large trailer and rented Space #17 at Camp Chiquita. Plaintiff alleges that after he moved into the space and made note of the electrical overcharges, Shariat, the owner of Camp Chiquita, began harassing, intimidating and physically threatening him. Shariat allegedly directed management to write up false complaints regarding plaintiff, including that plaintiff physically threatened residents at Camp Chiquita. Plaintiff accuses Shariat and others of participating in a conspiracy to oust him from Camp Chiquita.
On August 3, 2012, plaintiff's trailer was burglarized by a woman previously identified as a drug addict. Several thousands of dollars and other items were taken from plaintiff's home. Plaintiff claims the El Dorado Sheriff's Department did not respond to this burglary in a timely manner. When two deputies, Gennai and Funk, did arrive at plaintiff's home many days later, they allegedly threatened plaintiff. Plaintiff also accuses Lee Vinning, an insurance agent, of improperly processing plaintiff's insurance claim as to this burglary.
On February 4, 2013, plaintiff moved out of Camp Chiquita.
Plaintiff initiated this action on September 4, 2013. On September 12, 2013, the undersigned granted plaintiff's request to proceed in forma pauperis ("IFP") and screened the complaint, finding it to be so vague and conclusory that the court was unable to determine whether the action was frivolous or failed to state a claim. The complaint was therefore dismissed and plaintiff was directed to file an amended complaint.
On October 15, 2013, plaintiff filed the operative FAC and invoking the court's jurisdiction pursuant to 42 U.S.C. § 2000e-5(b), 29 U.S.C. § 626, 42 U.S.C. § 12117, and 42 U.S.C. §1983 et seq. He also purportedly brings claims pursuant to, inter alia, the Americans with Disabilities Act and the Fourth, Fifth and Fourteenth Amendments of the Constitution.
Before the court had an opportunity to screen the first amended complaint, plaintiff served all defendants. See ECF No. 5. The instant motion to dismiss was filed thereafter. Plaintiff opposes the motion.
The purpose of a motion to dismiss pursuant to this rule is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n , 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding , 467 U.S. 69, 73 ...