United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS FOR FAILURE TO
PROSECUTE AND GRANTING MOTION TO DISMISS FOR FAILURE TO STATE
A CLAIM RE: DKT. NO. 64, 70
HAYWOOD S. GILLIAM, JR. United States District Judge.
before this Court are Defendant Apple Incorporated's
motion to dismiss the complaint for failure to prosecute,
Dkt. No. 70, and motion to dismiss for failure to state a
claim. See Dkt. No. 64. For the reasons detailed
below, the Court DENIES the motion to dismiss for failure to
prosecute and GRANTS the motion to dismiss for failure to
state a claim.
Terrell Gray alleges several claims of racial discrimination
under 42 U.S.C. §§ 1981, 1982, 1985(3), as well as
negligent hiring, training and supervision, and intentional
infliction of emotional distress against Defendant.
alleges that in December 2012, Plaintiff bought an Apple
computer at BestBuy. Dkt. No. 4 (“FAC”) ¶
18. When it arrived with a cracked screen, Plaintiff
contacted Apple's customer service who advised him to
return it to a local Apple store. Id. 20-21. On
December 30, 2012, Plaintiff went to an Apple store in
Berkeley, California to do so. Id. ¶ 22.
Apple employee was “unresponsive” to Plaintiff
and refused to honor the return. Id. ¶¶
24-27. Plaintiff attributes this refusal to the
employee's unfounded belief that the computer was stolen.
Id. ¶¶ 27-28. Police officers approached,
asking the employee if he wanted Plaintiff to leave.
Id. ¶¶ 30-32. The employee said
yes. Id. ¶ 32. The police officers then
escorted Plaintiff from the store, handcuffed him, and took
him to a local hospital. Id. ¶¶ 33-35.
Plaintiff further alleges on information and belief that a
white customer purchased or returned Apple products around
the same time, without incident. Id. ¶¶
days later, Plaintiff returned to the same store to return
his computer. Id. ¶¶ 40. The police were
called again and arrested Plaintiff. Id. ¶ 41.
Plaintiff was incarcerated and then transferred to a local
hospital. Id. ¶ 42-44. Eventually an
unidentified female successfully returned and exchanged
Plaintiff's computer on his behalf. Id. ¶
46. Plaintiff asserts that these incidents reflect
Apple's company-wide practice “of racially
profiling and targeting its customers of color.”
Id. ¶ 37. Plaintiff alleges that because of
these incidents he suffered psychological trauma that
required several months of in-patient treatment. Id.
Procedural Posture & Request to Withdraw as
initially filed this action on December 23, 2013, in the
District of New Jersey, where Plaintiff is a resident.
Although Plaintiff named two individuals, Kelley Dorgan and
Greg Hopson, as well as the City of Berkeley and the Berkeley
Police Department in this action, Plaintiff only served
August 2016, the case was transferred to the Northern
District of California because the underlying events occurred
in Berkeley, California. Since that time, Plaintiff has
endeavored, with the assistance of his New Jersey counsel, to
find and retain new, local counsel. Plaintiff then decided to
proceed pro se. He signed a motion to “substitute
counsel” in December 2016, withdrawing his New Jersey
attorneys, Javonna C. Baker and Tracey S. Cosby, as his
counsel and agreeing to represent himself pro se.
See Dkt. No. 86. The Court held a hearing on March
17, 2017, confirming that Plaintiff is now pro se and that
has endeavored to represent himself since December 2016,
filing a pro se opposition to Defendant's motion to
dismiss for failure to prosecute on December 14, 2016.
See Dkt. No. 75.
filed both a motion to dismiss the complaint for failure to
prosecute, Dkt. No. 70, and a motion to dismiss for failure
to state a claim, Dkt. No. 64. The Court addresses each in