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Tobia v. Dollar Tree Stores, Inc.

United States District Court, E.D. California

July 17, 2019

LEONARD TOBIA, Plaintiff,
v.
DOLLAR TREE STORES, INC., A California Corporation dba Dollar Tree Store # 4760; KEVIN WAMPLER; and DOES 1-10, Defendants.

          ORDER

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.[1] 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).

         Determining 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.

         Although 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).

         Under 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).

         Plaintiff 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 achievable. Id.

         Plaintiff's 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.”).

         Plaintiff 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.

         Accordingly, it is hereby ORDERED that:

         1. Plaintiff's request for leave to proceed in forma pauperis (ECF No. 2) is granted.

         2. The 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 purposes.

         3. Plaintiff is advised that the U.S. Marshal will require:

a. One completed summons;
b. One completed USM-285 form for each ...

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