Opinion
21-cv-01720-JSC
05-17-2021
CINDY COOK, Plaintiff, v. JOSE DOE, et al., Defendants.
ORDER REASSIGNING AND REPORT AND RECOMMENDATION TO DISMISS RE: DKT. NO. 7
JACQUELINE SCOTT CORLEY United States Magistrate Judge
Cindy Cook, representing herself, brings this action against Jose Doe and Ellen Doe, the property managers of the apartment complex in which she used to reside. (Dkt. No. 7.) The Court previously granted Ms. Cook's application to proceed in forma pauperis and reviewed her complaint under 28 U.S.C. § 1915. (Dkt. Nos. 4, 6.) Upon 1915 review, the Court determined that Ms. Cook's complaint failed to state a claim and issued a Screening Order outlining the issues with her complaint. (Dkt. No. 6.) Ms. Cook thereafter filed the now pending First Amended Complaint which likewise fails to state a claim. (Dkt. No. 7.) Because the unserved Defendants have not consented, this Court lacks jurisdiction over this action. See Williams v. King, 875 F.3d 500, 501, 504 (9th Cir. 2017) (magistrate judge lacked jurisdiction to dismiss case on initial screening because unserved defendants had not consented to proceed before magistrate judge). Accordingly, the Clerk of the Court is ordered to REASSIGN this action to a district court judge and the Court RECOMMENDS that the district court judge dismiss Ms. Cook's federal claims for failure to state a claim and decline supplemental jurisdiction over her state law claim.
FIRST AMENDED COMPLAINT ALLEGATIONS
The allegations of Ms. Cook's First Amended Complaint are nearly identical to those of her First Amended Complaint. Compare Dkt. No. 1 with Dkt. No. 7. Ms. Cook alleges that approximately a year and a half ago she was evicted from her apartment at the Kings Valley Senior Apartments. (First Amended Complaint, Dkt. No. 7 at 1.) However, she “never received a notice to quit, never received a subpoena to appear in an unlawfull [sic] detainer hearing.” (Id. at 2.) Ms. Cook had an arrangement with Mr. Lawrence Williams, the owner of the residence, to exchange labor for housing, but Mr. Williams went to the hospital and when Ms. Cook returned from visiting her elderly mother, “she discovered that her door was locked and her key did not fit as the lock had been changed.” (Id.) Although she contacted Ellen Doe, the apartment manager, Ms. Doe refused to let her back in the apartment. (Id.) All of Ms. Cook's belongings were in the apartment. (Id.) “Plaintiff has no clothing shoes kitchen ware as they are being unlawfully held maliciously, Plaintiff requested her mail and was also denied.” (Id.) Ms. Cook alleges that she has been “forced to sleep in her car which was extremely difficult as Plaintiff is disabled and receiving ssi [sic] as her only source of income.” (Id. at 7.) Ms. Cook's complaint discusses mail fraud and elder abuse and includes what appears to be excerpts of webpages discussing both. (Id. at 2-7.)
LEGAL STANDARD
The Court has a continuing duty to dismiss any case in which a party is proceeding in forma pauperis upon a determination that the case is: (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). The standard of review under 28 U.S.C. § 1915(e)(2) mirrors that of Rule 12(b)(6). Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). Thus, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability requirement” but mandates “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). To avoid dismissal, a complaint must contain more than “naked assertion[s], ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-57. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When a plaintiff files a complaint without being represented by a lawyer, the court must “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal quotation marks and citation omitted).
DISCUSSION
As the Court noted in its Screening Order, the nature of Ms. Cook's legal claims is unclear. Ms. Cook has not clarified her claims in her First Amended Complaint and instead has simply reiterated the same statements and excerpts from webpages. As in her original complaint, in the caption for her First Amended Complaint she references the Americans with Disabilities Act; 42 U.S.C. § 1983; 8 U.S.C. §§ 1701, 1708; the Elder Justice Act, and unlawful eviction. (Dkt. No. 7 at 1.) However, Ms. Cook has failed to plead a claim under any of these laws.
1) Americans with Disabilities Act
To state a claim under the Americans with Disabilities Act (ADA), a plaintiff must allege that: (1) she is an individual with a disability, (2) she is otherwise qualified to participate in or receive the benefit of the entity's services, (3) she was discriminated against solely by reason of her disability, and (4) the defendant is a public entity. Zukle v. Regents of Univ. of Calif., 166 F.3d 1041, 1045 (9th Cir. 1999). Ms. Cook fails to state a valid ADA claim because her residential apartment building is not a place of public accommodation covered by the ADA's disability discrimination laws.
“The ADA only applies to public accommodations, which include hotels and motels, but not residential apartment complexes.” Glasby v. Mercy Hous., Inc., No. 17-CV-02153-DMR, 2017 WL 4808634, at *5 (N.D. Cal. Oct. 25, 2017) (citing 42 U.S.C. § 12182(a) (“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”); 42 U.S.C. § 12181(7)(A) (definition of “public accommodation” includes “an inn, hotel, motel, or other place of lodging”)). “Public accommodation does not include residential apartment complexes.” Glasby, 2017 WL 4808634, at *5 (citing Indep. Hous. Servs. of San Francisco v. Fillmore Ctr. Assocs., 840 F.Supp. 1328, 1344 (N.D. Cal. 1993) (“[T]he legislative history of the ADA clarifies that “other place of lodging” does not include residential facilities.”); Arceneaux v. Marin Hous. Auth., No. 15-CV-00088-MEJ, 2015 WL 3396673, at *7 (N.D. Cal. May 26, 2015) (concluding that public housing apartment complex did not fall within the bounds of the ADA)).
Ms. Cook has failed to allege an ADA claim, nor can she. Because her apartment complex is not a place of public accommodation, she may not bring a suit against Defendants for alleged ADA violations related to her housing.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “In other words, the deprivation ‘must be caused by the exercise of some right or privilege created by the [government] or a rule of conduct imposed by the [government].'” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). “[T]he party charged with the deprivation must be a person who may fairly be said to be a [governmental] actor.” Sutton, 192 F.3d at 835. “[Section] 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrong.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
Ms. Cook has failed to state a claim under Section 1983 because she has not alleged (1) a constitutional violation, (2) under color of law, (3) by a government actor.
3) Mail and Theft Statues 8 U.S.C. §§ 1701, 1708
Plaintiff alleges that Defendants violated 18 U.S.C. § 1701 and § 1708, which are criminal statutes related to theft of the United States mail. However, “courts have uniformly held that the federal mail theft statutes do not provide a private civil cause of action.” West v. Palo Alto Hous. Corp., No. 17-CV-00238-LHK, 2019 WL 2549218, at *24 (N.D. Cal. June 20, 2019) (collecting cases).
4) Elder Justice Act of 2009
As the criminal statutes discuss above, the Elder Justice Act of 2009, 42 U.S.C. § 1397j, does not confer a private right of action. See Wister v. White, No. 19-CV-05882-WHO, 2019 WL 6841370, at *3 (N.D. Cal. Dec. 16, 2019).
5) Unlawful Eviction
The nature of Ms. Cook's “unlawful eviction” claim is unclear, but regardless it would be brought under California law. See, e.g., Clark v. Mazgani, 170 Cal.App.4th 1281, 1289 (2009) (recognizing a state law claim for wrongful eviction). Because the Court recommends that all of Plaintiffs federal claims be dismissed, the Court also recommends that the newly assigned district court judge decline supplemental jurisdiction over this state law claim any other state law claims that Plaintiff attempts to plead. See 28 U.S.C. § 1367(c) (providing that a court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction”).
CONCLUSION
For the reasons stated above, the Court RECOMMENDS that the newly assigned district judge DISMISS Ms. Cook's federal claims and decline supplemental jurisdiction over her state law claims. See 28 U.S.C. § 1367(a).
Any party may file objections to this report and recommendation with the district court judge within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Civ. L.R. 72-3. Failure to file objections within the specified time may waive the right to appeal the district court's ultimate order.
IT IS SO ORDERED.