United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
proceeding in propria persona, brought this action in the
Shasta County Superior Court. Defendant removed this action
on July 16, 2015. Defendants' first motion to dismiss was
granted, and plaintiff was given limited leave to file an
amended complaint. Plaintiff filed his amended complaint on
February 11, 2016. Pending before the court is
defendants' motion to dismiss the amended complaint (Doc.
16). As no opposition to the motion to dismiss was filed, the
hearing on the motion was taken off calendar pursuant to
Eastern District of California Local Rule 230(c).
original complaint set forth allegations that the defendants
violated the Federal Fair Housing Act (FHA), 42 U.S.C. §
3601 et seq., the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12132 et seq., the
Rehabilitation Act (RA), the California Fair Employment and
Housing Act (FEHA), Cal. Gov't Code § 12955 et
seq., and the Unruh Act, Cal. Civ. Code § 51,
et seq. The original complaint was dismissed for
failure to state a claim, but plaintiff was given leave to
file an amended complaint limited to his claims for
disability discrimination under FHA, FEHA, and/ or the Unruh
Act. In his amended complaint, plaintiff attempts to state a
claim for violation of the FHA and/or FEHA.
MOTION TO DISMISS
brings this motion to dismiss the complaint on the grounds
that plaintiff fails to allege sufficient facts to state a
claim, plaintiff attempts to add claims and/or defendants he
was not authorized to add, and plaintiff fails to allege
sufficient disability as defined by law. No opposition to the
motion has been filed.
Motion to Dismiss Standards
considering a motion to dismiss, the court must accept all
allegations of material fact in the complaint as true.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court must also construe the alleged facts in the light
most favorable to the plaintiff. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); see also Hosp.
Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th
Cir. 1994) (per curiam). All ambiguities or doubts must also
be resolved in the plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However, legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro
se pleadings are held to a less stringent standard than those
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972). "Although a pro se litigant ... may be
entitled to great leeway when the court construes his
pleadings, those pleadings nonetheless must meet some minimum
threshold in providing a defendant with notice of what it is
that it allegedly did wrong." Brazil v. United
States Dept of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
8(a)(2) requires only "a short and plain statement of
the claim showing that the pleader is entitled to
relief" in order to "give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests." Bell Atl. Corp v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, in order to survive dismissal for
failure to state a claim under Rule 12(b)(6), a complaint
must contain more than "a formulaic recitation of the
elements of a cause of action;" it must contain factual
allegations sufficient "to raise a right to relief above
the speculative level." Id. at 555-56. The
complaint must contain "enough facts to state a claim to
relief that is plausible on its face." Id. at
570. "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 129 S.Ct. at 1949.
"The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully." Id. (quoting Twombly, 550
U.S. at 556). "Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility for entitlement to relief."
Id. (quoting Twombly, 550 U.S. at 557).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
and (3) documents and materials of which the court may take
judicial notice, see Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994). Finally, leave to amend must be granted
"[u]nless it is absolutely clear that no amendment can
cure the defects." Lucas v. Dep't of Corr.,
66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also
Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en
allegations for violations of the FEHA is unclear. His
amended complaint fails to provide sufficient factual
allegations as to how he was discriminated against. As was
set forth in the prior findings and recommendations, the
FEHA, FHA, and Unruh Act all prohibit discrimination against
a person who meets certain criteria in relation, inter
alia, to the sale or rental of a residential dwelling.
The court specifically outlined for plaintiff what was
necessary to plead in order to state a claim for violation of
those three Acts. In addition to setting forth the specifics
from each Act, the court informed plaintiff that in order to
state a claim, at a minimum he had to allege facts sufficient
to show he is a qualified individual and that there
is a connection between any disability he may have and
specific discriminatory behavior toward him. Plaintiff's
amended complaint fails to cure these defects.
undersigned set forth in the prior findings and
The FHA prohibits discrimination "against any person in
the terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services in connection
therewith, because or race, color, religion, sex, familial
status, or national origin." 42 U.S.C. § 3604(b).
The FHA further prohibits discrimination on the basis of a
handicap of the renter or other person residing in the
dwelling. See 42 U.S.C. § 3604(f). A claim for
discrimination under the FHA can be established either with a
disparate impact or disparate treatment theory. See
Budnick v. Town of Carefree, 518 F.3d 1109 (9th
Cir.2008); Gamble v. City of Escondido, 104 F.3d
300, 304-05 (9th Cir.1997). To establish a prima facie case
of disparate impact under the FHA, "a plaintiff must
show at least that the defendant's action had a
discriminatory effect." Budnick, 518 F.3d at
1118 (quoting Pfaff v. U.S. Dep't of Hous. & Urban
Dev., 88 F.3d 739, 745 (9th Cir.1996)). There must be
allegations that "(1) the occurrence of certain
outwardly neutral . . . practices, and (2) a significantly
adverse or disproportionate impact on persons of a particular
[type] produced by the [defendant's] facially neutral
acts or practices." Comm. Concerning Cmty.
Improvement v. City of Modesto, 583 F.3d 690, 711 (9th
Cir.2009) (quoting Pfaff, 88 F.3d at 745); see
also Cabrera v. Alvarez, 977 F.Supp.2d 969, 976
(N.D.Cal.2013); Gamble, 104 F.3d at 306.
Alternatively, a plaintiff can make a prima facie case of