Opinion
Case No. 3:20-CV-05262-BHS
08-19-2020
MICHELLE GILBERT, Plaintiff, v. JAMIE MARTINSON, Defendants.
ORDER TO SHOW CAUSE, AND DENYING MOTION FOR APPOINTED COUNSEL
This matter is before the Court on plaintiff's filing of applications for in forma pauperis status in this matter (Dkts. 6, 8, 10), a proposed complaint (Dkt. 1), and a motion for court appointed counsel. Plaintiff is proceeding in this matter pro se. Considering deficiencies in the complaint discussed below, however, the undersigned will not grant IFP or direct service of the complaint at this time. Plaintiff's motion for counsel is denied without prejudice. On or before October 19, 2020, plaintiff must either show cause why this cause of action should not be dismissed or file an amended complaint.
DISCUSSION
The Court must dismiss the complaint of a person who requests to proceed in forma pauperis "at any time if the [C]ourt determines" that the action: (a) "is frivolous or malicious"; (b) "fails to state a claim on which relief may be granted"' or (c) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).
Before the Court may dismiss the complaint as frivolous or for failure to state a claim, though, it "must provide the pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal." McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also Sparling v. Hoffman Constr., Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). On the other hand, leave to amend need not be granted "where the amendment would be futile or where the amended complaint would be subject to dismissal." Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991).
A plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Sweeping conclusory allegations against an official are insufficient to state a claim for relief. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
Additionally, Rule 8(a)(2) of the Federal Rules of Civil Procedure "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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must include more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-557.
Failure to State a Claim
Here, plaintiff alleges that defendant Jamie Martinson, a manager at Reach Community Development, Inc., discriminated against her with respect to her disability. Dkt. 1, at 3. She claims she was disabled as of December 2018, due to physical injury. Id. at 5. She appears to be contesting the validity of a judgment of eviction against her, because she was not served with proper notice of the eviction hearing. Id. Plaintiff alleges that she was staying in a motel and not in residence when defendant served plaintiff with the eviction notice by mail, and that she was unfairly kept ignorant of the eviction hearing until after the fact. Id.; Dkt. 1-1 at 2. She further alleges in her motion for court appointed counsel that defendant retaliated against her for opening a prior lawsuit, but she does not include further facts on that point. Dkt. 1-1, at 2. Plaintiff seeks damages under the Americans With Disabilities Act and "federal statutes," though her complaint suggests claims under the Fair Housing Act. Dkt. 1, at 3, 5.
The Americans with Disabilities Act (ADA) prohibits discrimination based on disability in employment, public services (e.g., city and local government programs, state-provided funding), public accommodations (e.g., businesses generally open to the public, recreation facilities), and telecommunications. 42 U.S.C. §§ 12101-12213. Plaintiff's alleged facts do not implicate any spheres protected by the ADA.
The Fair Housing Act prohibits discrimination in the sale or rental of any dwelling because of disability. 42 U.S.C. § 3604(f)(1). To state a claim for disparate treatment under the Fair Housing Act (FHA), a complaint must allege: (1) the plaintiff's rights are protected under the FHA; and (2) defendants have engaged in discriminatory conduct by which plaintiffs have suffered a distinct and palpable injury. See Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) (applying Title VII discrimination analysis to the FHA). To state a claim for retaliation under the FHA, the complaint must allege: (1) the plaintiff engaged in a "protected activity"; and (2) the activity was causally related to defendant's interference with plaintiff, resulting in damages to plaintiff. See 42 U.S.C. § 3617; San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998).
Plaintiff's proposed complaint does not supply allegations beyond the bare accusations of discrimination and retaliation. Plaintiff has not alleged facts that supply a causal relationship between defendant's conduct and plaintiff's disability, so without further facts on that issue, the complaint fails to state either ADA or FHA claims.
Subject Matter Jurisdiction
Currently, plaintiff's complaint fails to establish that this court has jurisdiction over her claims. As discussed above, plaintiff has failed to state a claim raising a federal question. Her allegations challenging the sufficiency of her eviction notice may provide a basis to contest the judgment of eviction, but this would be solely based on state statutory requirements of notice. See RCW 59.12.030(4).
The complaint also appears to assert diversity jurisdiction between plaintiff, a citizen of Washington, and defendant, who works for a corporation based in Oregon. Under 28 U.S.C. § 1332(a), the federal court's diversity jurisdiction extends to "all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of different States." Yet the named defendant is a citizen of Washington. Furthermore, plaintiff has alleged exactly $75,000 in damages, just short of the requirement. Therefore, plaintiff has failed to state a claim over which this court has subject matter jurisdiction.
Motion for Court Appointed Counsel
Plaintiff's motion for counsel is denied without prejudice. Plaintiff has articulated her claims pro se in a fashion understandable to this Court. Her allegations, while few, indicate that this is not a complex case in facts or law. If, at a later time in the proceedings, exceptional circumstances would require appointment of counsel then the plaintiff may bring another motion. Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998).
CONCLUSION
Due to the deficiencies described above, the Court will not serve the complaint. Plaintiff may show cause why her complaint should not be dismissed or may file an amended complaint to cure, if possible, the deficiencies noted herein, on or before October 19, 2020. If an amended complaint is filed, it must be legibly rewritten or retyped in its entirety and contain the same case number. Any cause of action alleged in the original complaint that is not alleged in the amended complaint is waived. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), overruled in part on other grounds, Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).
The Clerk is directed to send Plaintiff the appropriate forms for filing a 42 U.S.C. § 1983 civil rights complaint and for service, a copy of this Order and the Pro Se Information Sheet.
Dated this 19th day of August, 2020.
/s/_________
Theresa L. Fricke
United States Magistrate Judge