United States District Court, N.D. California, San Francisco Division
ORDER DISMISSING PLAINTIFF'S CLAIMS AGAINST
DEFENDANT JEFFREY SCARCELLO RE: ECF NO. 116, 117
BEELER, UNITED STATES MAGISTRATE JUDGE.
Joseph Thomas brings this suit against defendants Randall
Shaw, Mwangi Mukami, Jeffrey Scarcello, and Tenderloin
Housing Clinic Inc. Mr. Thomas brings only one claim against
Mr. Scarcello: a putative claim for violation of “the
Civil Rights Act of 1968[, ] 18 USC §5245(b)(2), the
Violent Crime Control and Law Enforcement Act[, ] 28 USC
§994 note sec. 280003.” Mr. Thomas alleges that Mr.
Scarcello used “fighting words” and various
epithets against him and got into an altercation with
(Mr. Scarcello, for his part, claims that Mr. Thomas was the
one who assaulted him and that Mr. Thomas broke his
is no such statute as 18 U.S.C. § 5245, and 28 U.S.C.
§ 994 and Section 280003 do not create a private right
of action. Because of this, on October 31, 2019, the court
issued an order for Mr. Thomas to show cause why his claims
against Mr. Scarcello should not be dismissed. On November 5,
2019, Mr. Thomas filed a response to the court's order to
show cause. Having reviewed the response, the court
finds that Mr. Thomas has not shown cause. The court
dismisses Mr. Thomas's claims against Mr. Scarcello. The
court grants Mr. Thomas leave to file an amended complaint to
replead against Mr. Scarcello.
Thomas moved into the National Hotel Budget Inn
(“Hotel”) in San Francisco, California, in
November 2012. The Hotel “was overrun with bedbugs,
roaches, mice, and rats. Every toilet and shower leaked or
was inoperable, the heat did not work properly, and windows
December 2016, the Tenderloin Housing Clinic
(“THC”) took over the management of the Hotel and
converted it into “supportive
housing.” Mr. Thomas alleges that the THC clients
brought “needles, sexual liaisons, bedbugs, roaches,
noise, dogs, and visitors” to the Hotel and turned it
into a “safe-injection site.” Mr. Thomas
asked THC “about housing in a building that wasn't
‘supportive housing;' but THC never
responded.” Mr. Thomas alleges that THC “has a
history of churning tenants in order to get higher
rents” and that his “quiet enjoyment of the
premises” lasted one month before the THC clients moved
December 11, 2017, Mr. Thomas was awoken by “fighting
words” at his door. Mr. Thomas alleges that
Jeffrey Scarcello, another resident of the Hotel, was
uttering racial and homophobic slurs at him through his
door. According to Mr. Thomas, Mr. Scarcello
“incited the other tenants in the building by telling
them the reason the heat wasn't working properly is
because ‘management was retaliating against the
building' on account of [Mr. Thomas's] advisory to
the tenants of their rights to safe and habitable living
conditions.” Mr. Thomas alleges that:
When I left my room to see what was going on, most of the mob
disappeared back into their rooms. Only Scarcello continued
the tirade, completely flushed and irrational. Scarcello
repeatedly stood close enough so that spittle was sprayed
into my face. This went on for what seemed forever.
Half-asleep, and with my adrenaline surging, all I remember
is chasing him away from my room.
may dismiss a plaintiff's claims on its own initiative
where the plaintiff does not state a valid, legally
cognizable claim. Reed v. Lieurance, 863 F.3d 1196,
1207 (9th Cir. 2017). Before doing so, “the court must
give notice of its intention to dismiss and afford
plaintiff an opportunity to at least submit a written
memorandum in opposition to such motion.” Id.
(internal quotation marks omitted) (quoting cases). The court
gave Mr. Thomas notice of its intention to dismiss his claims
against Mr. Scarcello and gave him an opportunity to submit a
written memorandum in opposition.
Thomas brings a claim against Mr. Scarcello for violations of
“18 U.S.C. § 5245” and 28 U.S.C. § 994
and Section 280003. Mr. Thomas's claims against Mr.
Scarcello are not cognizable and must be dismissed.
there is no such statute as 18 U.S.C. § 5245.
28 U.S.C. § 994 simply empowers the U.S. Sentencing
Commission to establish sentencing guidelines, and Section
280003 is a direction to the Sentencing Commission regarding
sentencing enhancements for hate crimes. Neither 28 U.S.C.
§ 994 nor Section 280003 creates a private right of
action for a plaintiff like Mr. Thomas to bring a civil
claim. Stevens v. Skolnik, No. 3:09-cv-00227-RCJ
(RAM), 2010 WL 3081254, at *3 (D. Nev. May 19, 2010) (report