United States District Court, N.D. California, San Jose Division
ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE ORDER RE
IFP APPLICATIONS REPORT AND RECOMMENDATION RE DISMISSAL RE:
DKT. NOS. 2, 3, 4
R. LLOYD, United States Magistrate Judge
Picart and Magali T. Estrada, proceeding pro se, seek to file
this lawsuit for alleged violation of the Americans with
Disabilities Act (ADA), as well as other claims. Although
Picart's relationship to Estrada is unclear, the
allegations of the complaint indicate that they are both
Sunnyvale residents. Defendants Udin Salim and Nancy Cheng
are identified as California residents who own certain real
property in Sunnyvale. The complaint also names two Doe
defendants, who are identified as the tenants or renters of
the property owned by Salim and Cheng.
says that he suffers from Tourette's Syndrome and has a
service dog. He claims that defendants harassed him one day
while he was washing his car by calling the police to
complain that Picart “was displaying bizarre behavior
and yelling obscene language, ” even after Picart says
he told them about his condition. (Dkt. 1 at p. 5). The
complaint further alleges that defendants tried to have
Picart's service dog stop barking and “serv[ed] a
notice to cure the barking” while the dog was in the
backyard of Estrada's private property. (Id. at
p. 4). The complaint also seems to allege that defendants
stood by a fence to videotape the dog, provoking it to bark.
Picart and Estrada assert four claims for relief: (1)
violation of the ADA, (2) negligence, (3) nuisance, and (4)
“breach of conduct” based on an alleged
“breach of the covenant of quiet
enjoyment.” They both also seek leave to proceed in
forma pauperis (IFP).
reasons to be discussed, this court terminates both IFP
applications and recommends that (1) the ADA claim be
dismissed with prejudice; and (2) the district court decline
jurisdiction over the remaining claims, and dismiss those
claims without prejudice to filing them in state court.
may authorize the commencement of a civil action in forma
pauperis (“IFP”) if the court is satisfied that
the applicant cannot pay the requisite filing fees. 28 U.S.C
§ 1915(a)(1). In evaluating such an application, the
court should “gran[t] or den[y] IFP status based on the
applicant's financial resources alone and then
independently determin[e] whether to dismiss the complaint on
the grounds that it is frivolous.” Franklin v.
Murphy, 745 F.2d 1221, 1226-27 n.5 (9th Cir. 1984). A
court may dismiss a case filed without the payment of the
filing fee whenever it determines that the action “(i)
is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B)(i)-(iii).
and Estrada's respective IFP applications are incomplete.
Both state that they receive some form of Social Security
income, but neither one identifies the amounts that they
receive. Ordinarily, this court would direct Picart and
Estrada to re-submit their IFP applications to provide
complete information. In this instance, however, this court
will instead terminate both applications because the
undersigned concludes that the ADA claim, the sole basis for
federal jurisdiction, should be dismissed with prejudice.
the complaint does not identify which section of the ADA
forms the basis for this suit, none appear relevant to this
matter. The ADA is comprised of five titles and prohibits
disability discrimination in employment (Title I, 42 U.S.C.
§ § 12111-12117); in public services by state and
local governments (Title II, 42 U.S.C. §§
12131-12165); in the provision of commercial facilities and
places of public accommodation by private entities (Title
III, 42 U.S.C. §§ 12181-12189); and with respect to
telecommunications and common carriers (Title IV, 47 U.S.C.
§ 225). Title V contains miscellaneous enforcement
provisions and exemptions, 42 U.S.C. §§
is nothing to suggest that this case arises under Titles
I-IV. As for Title V, although this court has not found Ninth
Circuit or Supreme Court authority addressing the issue,
courts in this district have held that, based on the remedial
structure of the statute, ADA claims cannot be brought
against individual defendants who do not fall within the
scope of Titles I, II, or III of the ADA. See Rein v.
Ainer, No. 14-cv-01698 JD, 2014 WL 5828797 at *3-4 (N.D.
Cal., Nov. 10, 2014) (concluding that the plaintiff could not
state an ADA claim against individual defendants who were not
plaintiff's employer, a state or local government agency,
or owners of a place of public service or accommodation)
(citing Stern v. California State Archives, 982
F.Supp. 690 (E.D. Cal. 1997); see also generally Ross v.
Independent Living Resource of Contra Costa Cnty., No.
C08-00854 TEH, 2010 WL 1266497 at *3 (N.D. Cal., Apr. 1,
2010) (agreeing with the majority of courts that have
concluded that “while section 503 [of Title V] on its
face applies to any ‘person, ' its remedies are
drawn from provisions that apply only to
‘employer[s]' and other ‘covered
court finds that this is a legal deficiency that cannot be
remedied by amendment and therefore recommends that the ADA
claim be dismissed with prejudice. Because the ADA claim is
the sole basis for federal jurisdiction,  and given the
very early stage of this litigation, the district court
should decline to exercise jurisdiction over the remaining
claims. See 28 U.S.C. § 1367(c)(3) (providing
that “[t]he district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a)
if . . . the district court has dismissed all claims over
which it has original jurisdiction.”). Those remaining
claims should be dismissed without prejudice to filing them
in state court.
the parties have yet to consent to the undersigned's
jurisdiction, this court ORDERS the Clerk of the Court to
reassign this case to a District Judge. The undersigned
further RECOMMENDS that the newly assigned judge (1) dismiss
the ADA claim with prejudice; and (2) decline to exercise
jurisdiction over the remaining claims and dismiss those
claims without prejudice to filing them in state court.
party may serve and file objections to this Report and
Recommendation within fourteen days after being served. 28
U.S.C. § 636(b); Fed.R.Civ.P. 72.