United States District Court, N.D. California
Tazma Diwali Anaya, Plaintiff, Pro se, San Francisco, CA.
For Marin County Sheriff, Defendant: Brian Charles Case, Marin County Counsel, San Rafael, CA.
For Osher Marin Jewish Community Center, Defendant: Diane Elizabeth Pritchard, VOGL MEREDITH BURKE LLP, San Francisco, CA.
ORDER GRANTING MOTION TO DISMISS Re: Dkt. No. 70
WILLIAM H. ORRICK, United States District Judge.
The Bernard Osher Marin County Jewish Community Center (MJCC) moves to dismiss plaintiff's Second Amended Complaint. On her third try, plaintiff still fails to state a claim against the MJCC under the Americans with Disabilities Act or under any other theory. Despite construing the pleadings and her memoranda liberally and giving her the benefit of any doubt, I do not see how plaintiff can allege a plausible claim against MJCC.
This motion is currently scheduled for hearing on January 7, 2015. Pursuant to Civil Local Rule 7-1(b), this matter is appropriate for resolution without oral argument and I VACATE the hearing. Having considered the papers submitted, and for the reasons discussed below, the MJCC's motion to dismiss is GRANTED, and the claims against MJCC are DISMISSED WITH PREJUDICE. Plaintiff's lawsuit continues against the Marin County Sheriff's Department.
The facts underlying plaintiff's complaint against the MJCC, culminating in plaintiff's arrest at the MJCC on May 23, 2012, are described in detail in my September 16, 2014 Order dismissing the claims against MJCC with leave to amend. In that Order I identified the deficiencies that plaintiff needed to address with respect to her claims against the MJCC: plaintiff failed to allege facts showing that (i) she was denied access to the services at the MJCC because of her disability; (ii) she was being treated differently by the facility because of her disability; and (iii) her requested accommodations were both necessary and reasonable. Docket No. 46 at 10. With respect to her constitutional claims, I found that plaintiff failed to plead any facts, much less plausible facts, to demonstrate that the specific MJCC employees conspired with sheriff deputies to violate her constitutional rights. Id. at 11.
In response, plaintiff filed a " Second Amended Claim." Docket No. 64. In her Second Amended Claim, plaintiff asserts that the MJCC called the Marin Sheriff's Department " to clear the problem, Tazma Anaya, to make her leave, " that it directed " hostility" and harassment towards her, that no " ADA corrections were ever made known" to her, and that scholarships to the MJCC were no longer offered. Id. at 1, 2. Plaintiff argues that MJCC's " silence" -- MJCC's failure to extend plaintiff sympathy or attempt reconciliation, failure to seek plaintiff's continued membership at the facility, and failure to explain its treatment of plaintiff -- is " agreement" to the charges in the suit. Id.
Plaintiff argues that the MJCC's silence " is charged as agreement to conspiracy with the police, " because there was nothing done afterward to " offset" the injustice plaintiff felt she suffered. Id. at 1-2. An evidence of an act of conspiracy, plaintiff alleges that an MJCC employee (Barbara) shared a medical note from plaintiff's file with Dominique from the Sheriff's Department and Barbara orchestrated her arrest. Id. at 2, 3. She asserts that unspecified MJCC employees saw plaintiff get hurt by the sheriff deputies as evidence of a " conspiracy" to have plaintiff arrested in retaliation for plaintiff's requests for " minor" ADA modifications and because plaintiff's " determination and forthrightness was insurmountable." Id. at 2-3.
Plaintiff also attempts to state a First Amendment claim against the MJCC, arguing that her detention and arrest were in response to her attempts to " protest" unfair treatment by the MJCC. She argues that the MJCC is the functional equivalent of a public gathering place, like a shopping mall. Id. at 4-5. As such, plaintiff contends, she could not have been arrested for trespassing for exercising her free speech rights, though she " was no protester per se." Id. at 5.
With respect to her claims under the ADA, plaintiff asserts that the MJCC denied her request for " minor" modifications, and retaliated against her for making those requests by calling the police on May 23, 2012. Id. at 2-3. She asserts that Barbara from the MJCC deliberately and intentionally denied plaintiff a chair on May 23rd, which caused her to fall and not be able to get up. Id. at 3. Plaintiff asserts that on that day, she was denied entrance to the MJCC facilities, including use of a bathroom. Id. She also claims that MJCC staff was " unnecessarily rude and intolerant of slowness at closing time, " and that by rushing people out the MJCC staff created a risk that a handicap person may slip and fall in the shower. Id. at 9. She asserts she moves " slowly" and that a watch " may not be as useful as a wide view wall clock while changing" and more time should be allowed at closing, which she was denied. Id. at 10. Plaintiff contends that monitoring the ADA accessible changing rooms would ensure " a better possibility of the handicap person to be treated fairly as compared to others" and " possibly assist" in preventing disabled people being prevented from retrieving their belongings stored in the ADA accessible changing rooms. Id. Plaintiff asserts the problems accessing the ADA accessible rooms occurred " frequently" or " usually" and became problematic to her peace of mind. Id. She also notes that she " experienced" the shower handle bar not staying in place and that one elderly woman apologized for taking so long in the room because she could not reach the handle. Id.
As a remedy against the MJCC, plaintiff wants: to prevent the MJCC from being able to " dismiss people" as will by using the police; to require the MJCC to be more image conscious; written and verbal apologies; ADA signage clarified; rooms monitored; pool closing hours pushed back 15 minutes or more " tolerance ...