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Gant v. Real Property Management Inc.

United States District Court, E.D. California

June 22, 2016

TONY AUSTIN GANT, Plaintiff,
v.
REAL PROPERTY MANAGEMENT, INC., Defendant.

          FINDINGS AND RECOMMENDATION

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         I. BACKGROUND

         Plaintiff's 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.

         II. MOTION TO DISMISS

         Defendants 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.

         A. Motion to Dismiss Standards

         In 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).

         Rule 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).

         In 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 banc).

         B. Discussion

         Plaintiff's 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.

         As the undersigned set forth in the prior findings and recommendations:

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 ...

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