United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915. His declaration makes the showing required
by 28 U.S.C. §1915(a)(1) and (2). See ECF No.
2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must dismiss the case at any time if it
determines the allegation of poverty is untrue, or if the
action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
an immune defendant. As discussed below, plaintiff's
complaint fails to establish subject matter jurisdiction and
must be dismissed.
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-563,
570 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all of the
complaint's allegations are true.” Id. at
555 (citations omitted). Dismissal is appropriate based
either on the lack of cognizable legal theories or the lack
of pleading sufficient facts to support cognizable legal
theories. Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990).
this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex
Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
pleading in the light most favorable to the plaintiff, and
resolve all doubts in the plaintiff's favor, Jenkins
v. McKeithen, 395 U.S. 411, 421 (1969). A pro se
plaintiff must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2)
requires a complaint to include “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.”
Twombly, 550 U.S. at 555 (citing Conley,
355 U.S. at 47).
brings this action against Dollar Tree Stores, Inc. and Devin
Wampler, alleging claims under the Americans with
Disabilities Act (“ADA”), the California Unruh
Civil Rights Act (“Unruh Act”), the California
Disabled Persons Act (“CDPA”), and a claim for
negligence. ECF No. 1. According to the complaint, plaintiff
is an individual with a disability that limits his vision and
ability to walk, stand, grasp, push, pull, and reach.
Id. at 1. Defendants are the owners and operators of
Dollar Tree Store No. 4760 (the “store”) located
at 441 Pioneer Ave, Ste. 110 Woodland, California.
Id. at 11. The store is a business establishment and
place of public accommodation. The store's bathroom door
has a round shaped knob, it does not have a ten-inch kick
plate for wheelchair users, and the door requires
approximately ten pounds of pressure to open. Id. at
12. Plaintiff encountered these barriers during visits to the
store in 2017 and 2018. Id. at 13. Plaintiff further
alleges that the removal of the barriers is readily
allegations state potentially cognizable claims under the
ADA, the Unruh Act, and the CDPA. To state a Title III ADA
claim, the plaintiff must allege “that (1) [he] is
disabled within the meaning of the ADA; (2) the defendant is
a private entity that owns, leases, or operates a place of
public accommodation; and (3) the plaintiff was denied public
accommodations by the defendant because of her
disability.” Molski v. M.J. Cable, Inc., 481
F.3d 724, 730 (9th Cir. 2007). Further, “[t]o succeed
on a ADA claim of discrimination on account of one's
disability due to an architectural barrier, the plaintiff
must also prove that: (1) the existing facility at the
defendant's place of business presents an architectural
barrier prohibited under the ADA, and (2) the removal of the
barrier is readily achievable.” Parr v. L & L
Drive-Inn Rest., 96 F.Supp.2d 1065, 1085 (D. Haw. 2000).
Accepting plaintiff's allegations as true, these
allegations potentially establish a violation of Title III of
the ADA. Additionally, any violation of the ADA necessarily
constitutes a violation of the Unruh Act. Cal. Civ. Code
§ 51(f); see also Munson v. Del Taco, Inc., 46
Cal.4th 661, 664, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009).
Likewise, a violation of the ADA also constitutes a violation
of the CDPA. Cal. Civ. Code § 54.1(d); see Pickern
v. Best Western Timber Cove Lodge Marina, 194 F.Supp.2d
1128, 1131 (E.D. Cal. 2002) (observing that the CDPA was
“amended to provide that a violation of the ADA
constitutes a violation [its] provisions.”).
has also stated a potentially cognizable negligence claim
based on a theory of negligence per se. Under California law,
negligence may be presumed where (1) the defendant violated a
statute, (2) the violation caused the plaintiff's injury,
(3) the injury resulted from an occurrence the nature of
which the statute was designed to prevent; and (4) the
plaintiff suffering the injury was among the class of persons
for whose protection the statute was adopted. Galvez v.
Frields, 107 Cal.App.4th 1410, 1420 (2001). Plaintiff
alleges that defendant's “had a general duty and a
duty arising under the” ADA, Unruh Act, and CDPA
“to provide safe, convenient, and accessible
facilitates.” ECF No. 1 at 17. He further alleges that
defendants breached that duty, which caused injury.
Id. Liberally construed, these allegations state a
potentially cognizable negligence claim.
it is hereby ORDERED that:
Plaintiff's request for leave to proceed in forma
pauperis (ECF No. 2) is granted.
Clerk of Court shall send plaintiff one USM-285 form, one
summons, a copy of the complaint, this court's scheduling
order, and the forms providing notice of the magistrate
judge's availability to exercise jurisdiction for all
Plaintiff is advised that the U.S. Marshal will require:
a. One completed summons;
b. One completed USM-285 form for each ...