Opinion
6:20-cv-01755-MK
12-22-2022
JERRY L. WALKER, Plaintiff, v. AMERICAN RED CROSS, et al., Defendants.
FINDINGS AND RECOMMENDATION
KASUBHAI, United States Magistrate Judge:
Pro se Plaintiff Jerry L. Walker filed this action against Defendant American Red Cross in October 2020. For the reasons that follow, Plaintiff's application (ECF No. 2) to proceed in forma pauperis (“IFP”) is GRANTED. However, because Plaintiff has failed to state a claim despite having the deficiencies of his complaints explained multiple times, the Court should DISMISS the Third Amended Complaint (“TAC”) with prejudice.
PROCEDURAL HISTORY
In October 2020, Plaintiff filed his original Complaint (ECF No. 1), an IFP application (ECF No. 2), and a motion for appointment of pro bono counsel (ECF No. 5). Plaintiff also filed motions for a preliminary injunction (ECF No. 9) and emergency injunctive relief (ECF No. 10) that same month. Judge Aiken denied Plaintiff's requests for injunctive relief. See Orders, ECF Nos. 14, 15. In July 2021, this Court granted Plaintiff's IFP application, dismissed Plaintiff's Complaint with leave to amend, and denied Plaintiff's motion for appointment of pro bono counsel. See Order, ECF No. 16. This Court ordered Plaintiff to file an amended complaint by November 1, 2021. See Order, ECF No. 19.
On October 31, 2021, Plaintiff filed a motion to amend (ECF No. 21) as well as a proposed amended complaint and supporting memorandum (ECF No. 22). Plaintiff then filed a “two-part corrected, amended complaint” (ECF No. 25) on November 16, 2021, and a corrected motion to amend (ECF No. 26) on November 24, 2021. On February 1, 2022, this Court dismissed Plaintiff's First Amended Complaint (“FAC”) with leave to amend. See Order, ECF No. 27. This Court ordered Plaintiff to file a second amended complaint within thirty days. Id.
On March 3, 2022, Plaintiff filed a motion to amend (ECF No. 30) with his Second Amended Complaint (“SAC”) attached as an exhibit (ECF No. 30-1). On March 17, 2022, Plaintiff filed another motion to amend with a proposed complaint nearly identical to his first submission and with additional exhibits (ECF Nos. 31, 32). On June 9, 2022, this Court again granted Plaintiff's IFP application and dismissed the SAC with leave to amend. See Order, ECF No. 35 (“June 2022 Order”). In that Order the Court specifically instructed Plaintiff as follows:
Under the Federal Rules of Civil Procedure, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). A complaint violates this rule when it is “so verbose,
confused and redundant that its true substance, if any, is well disguised.” Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) (citations omitted); see also In re Metro. Sec. Litig., 532 F.Supp.2d 1260, 1278 (E.D. Wash. 2007) (“The purpose of a complaint is not, however, to inform the opposing party of every fact underlying the plaintiff's claims. The proper time for such detailed revelation is discovery.”). “A complaint need only set forth sufficient facts to notify the opposing party of the claims against it and the factual basis of those claims.” In re Metro., 532 F.Supp.2d at 1278.
Plaintiff's SAC (ECF No. 30-1) totals 578 pages, with 129 pages of text and 449 pages of exhibits. While the Court recognizes that Plaintiff has attempted to comply with the Court's previous instructions, the Court nevertheless again cautions Plaintiff concerning the volume of material he has submitted. Compare Hearns, 530 F.3d at 1131 (noting that excessive length by itself does not violate Rule 8(a)) with Orea v. Quality Loan Serv. Corp., 859 Fed. App'x 799, 801 (9th Cir. 2021) (holding that a district court did not abuse its discretion in dismissing a plaintiff's second amended complaint that spanned more than ninety pages of text and 540 pages of exhibits for violating Rule 8(a) because it “was so lengthy, rambling, confusing, and disorganized”).
The Court advises Plaintiff that if he files a third amended complaint, Plaintiff should briefly and clearly explain in a single document what has happened, what Defendant has done to injure Plaintiff, and why Defendant should be held liable for that injury. Plaintiff should eliminate redundancies and omit lengthy discussions not relevant to the legal claims he makes unless absolutely necessary for his claims. Plaintiff is also advised to omit his procedural history and chronological events sections unless there are facts absolutely necessary for his claims. See In re Metro., 532 F.Supp.2d at 1278 (“The purpose of a complaint is not, however, to inform the opposing party of every fact underlying the plaintiff's claims. The proper time for such detailed revelation is discovery.”). Any further submissions resembling Plaintiff's SAC (ECF No. 30-1) risk dismissal for failure to follow a court order. Plaintiff is further advised that the failure to file a third amended complaint or to comply with the Court's instructions as explained above will result in dismissal of this action.Id.
On July 8, 2022, Plaintiff filed the TAC that is the subject of this Findings and Recommendation (“F&R”). TAC, ECF No. 38.
FACTUAL BACKGROUND
According to the TAC, Plaintiff is an individual with a disability. TAC 41, ECF No. 38. Plaintiff was forced to evacuate his campsite following wildfires on September 8, 2020. Id. Plaintiff was then directed to the Holiday Inn Express in Eugene, Oregon. Id. Plaintiff alleges that he was harassed, intimidated, and intentionally discriminated against by members of Defendant American Red Cross during his stay. Id. at 41-45.
On September 16, 2020, Plaintiff was notified that he needed to check out of the Holiday Inn Express within twenty-four hours and that alternate shelter at a high school gymnasium was available to him. Id. at 41. Plaintiff was also informed that “only people with the most severe mobility-related disabilities would continue shelter[ing] in a hotel, and that otherwise all other individuals were being asked to vacate.” Id. Plaintiff alleges that various acts of harassment, discrimination, and defamation ensued after he mentioned his status as an individual with a disability to Defendant. Id. at 41-45, 47-131, 133-38.
LEGAL STANDARD
Generally, all parties instituting any civil action in a United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to the federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations: first, whether the litigant is unable to pay the costs of commencing the action, Id.; and second, whether the action “(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Regarding the second determination, district courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints before service of the complaint on a defendant and must dismiss a complaint if it fails to state a claim. Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal pleading standards, a complaint must include a short and plain statement of the claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The Court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id. Pro se pleadings are held to less stringent standards than pleadings by attorneys.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should construe a pro se plaintiff's pleadings liberally and afford the plaintiff the benefits of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). In addition, a Pro se plaintiff is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.
DISCUSSION
The TAC totals 139 pages of text and 461 pages of exhibits and cites to various provisions of the United States Code. See TAC, ECF No. 38. Significantly, the TAC largely mirrors, and in many places is identical to, the SAC. Compare TAC 44 (alleging Plaintiff “has been subject to intimidation and received death threats”), with SAC 34 (alleging the same), and TAC 124 (alleging “DEFENDANT made a concerted effort to use the natural disaster as a way to publicly admonish and portray PLAINTIFF as undesirable on the basis of disability.”) (capitalization in original), with SAC 133 (alleging the same). Given the Court's previous instruction regarding pleading standards in the June 2022 Order, Plaintiff's failure to include “a short and plain statement of the claim showing that the pleader is entitled to relief” is reason alone to dismiss the TAC. Fed.R.Civ.P. 8(a)(2) (emphasis added); Orea, 859 Fed. App'x at 801 (holding that a district court did not abuse its discretion in dismissing a plaintiff's second amended complaint that spanned more than ninety pages of text and 540 pages of exhibits for violating Rule 8(a) because it among other things lengthy and disorganized). However, given Plaintiff's Pro se status, the Court will briefly discuss the deficiencies in the TAC.
The Court construes the TAC to allege the following claims: (1) discrimination claims under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”); (2) violations of the Fourteenth Amendment; and (3) violations of state law for defamation and harassment.
I. Discrimination Claims
Liberally construing Plaintiff's TAC, Plaintiff alleges he was discriminated against in violation of ADA and Section 504. See, e.g., TAC 4-14, 41-45, 134-139, ECF No. 38.
Title II of the ADA provides that: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim of disability discrimination under Title II, a plaintiff must sufficiently allege four elements: (1) they are “an individual with a disability”; (2) they are “otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities”; (3) they were “either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity”; and (4) “such exclusion, denial of benefits, or discrimination was by reason of [their] disability.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam).
Section 504 of the Rehabilitation Act of 1973 provides that: “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency[.]” 29 U.S.C. § 794(a). To establish a prima facie case under Section 504 of the Rehabilitation Act, a plaintiff “must show: (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance.” Weinrich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (internal quotations, citation, and emphasis omitted).
Plaintiff has pled facts sufficient to allege he is an individual with a disability. However, Plaintiff again fails to allege that he was denied access to a benefit to which he was otherwise entitled. As the Court has already noted, Plaintiff has not sufficiently shown through any allegations that he was entitled to lodging supplied by Defendant. Accordingly, the TAC fails to state discrimination claims under either the ADA or Section 504.
II. Equal Protection Claim
Liberally construing Plaintiff's TAC, Plaintiff alleges Defendant violated the Equal Protection Clause of the Fourteenth Amendment. See, e.g., See, e.g., TAC 4-14, 41-45, 134139, ECF No. 38.
Under the Equal Protection Clause, no state shall deny to any person the equal protection of the laws, “which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). “When an equal protection claim is premised on unique treatment rather than a classification, the Supreme Court has described it as a ‘class of one' claim.” North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). For a “class of one” claim, a plaintiff must establish that a defendant “intentionally, and without rational basis, treated the plaintiff differently from others similarly situated.” Id. (internal citations omitted). It is not enough to separate all persons not injured into one class and allege that they received better treatment. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).
Here, Plaintiff fails to allege the actions taken by Defendant were intentional or devoid of any rational basis. Plaintiff's TAC also appears to separate all persons not injured into one class and allege that they received better treatment. As such, the TAC fails to state an Equal Protection claim.
III. State Law Claims
The Court may exercise supplemental jurisdiction over state law claims. See 28 U.S.C. § 1367. Liberally construing Plaintiff's TAC, Plaintiff asserts claims for defamation and harassment under Oregon state law. See, e.g., See, e.g., TAC 4-14, 41-45, 134-139, ECF No. 38. Specifically, Plaintiff alleges that Defendant's actions “resulted in defamation of [Plaintiff], harassment, intimidation, dilution of his rights, restrictions on his movement, unlawful monitoring of his public and private affairs, and the ongoing impediment of his federally-protected rights.” Id. at 25.
A. Defamation
“Under Oregon law, a defamation claim has three elements: (1) the making of a defamatory statement; (2) publication of the defamatory material to a third party; and (3) resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.” Lowell v. Wright, 306 Or.App. 325, 331 (2020) (internal citations omitted). “A defamatory statement is one that would subject the plaintiff to hatred, contempt, or ridicule; would tend to diminish the esteem, respect, goodwill, or confidence in which the plaintiff is held; or would excite adverse, derogatory, or unpleasant feelings or opinions against the plaintiff.” Id.; see also Mouktabis v. M. A., 315 Or.App. 22, 23 (2021) (“To state a claim for defamation, a plaintiff must allege facts sufficient to establish that the defendant published to a third person a defamatory statement about the plaintiff.”).
Here, Plaintiff again offers no facts showing Defendant made any defamatory statement or published any defamatory material to a third party. As such, the TAC fails to state a defamation claim under Oregon law.
B. Harassment
While a state statute exists that criminalizes certain acts of harassment, see ORS § 166.065, no state statute gives rise to judicial relief for the civil claims Plaintiff again asserts in the TAC. In other words, Plaintiff cannot invoke an Oregon Criminal statute as the basis for a federal civil lawsuit. Accordingly, the TAC fails to state a harassment claim.
Finally, even if Plaintiff's had sufficiently plead claims under Oregon law, because Plaintiff has failed to allege facts sufficient to give rise to any federal claim, the Court should decline to exercise supplemental jurisdiction any putative state law claims.
IV. Dismissal
In civil rights cases where the plaintiff appears pro se, courts must construe the pleadings liberally and must afford plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). Ordinarily, a pro se litigant is given leave to amend his or her complaint. Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623-24 (9th Cir. 1988). However, if it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment,” leave to amend need not be given. Id. (internal quotation marks omitted). Furthermore, it is within “[t]he district court's discretion to deny leave to amend is particularly broad where a Plaintiff previously has amended the complaint.” World Wide Rush, LLC v. City of L.A., 606 F.3d 676, 690 (9th Cir. 2010).
Here, Plaintiff has been given multiple opportunities to state a claim and has failed to do so despite having the relevant law and complaints' deficiencies explained to him. Because any amendment would be futile, the Court should exercise its discretion and dismiss the TAC with prejudice. See e.g., Stone v. Van Wormer, No. 3:19-cv-00144-HZ, 2019 WL 7194565, at *4 (D. Or. Dec. 26, 2019) (dismissing with prejudice where the plaintiff had multiple opportunities to cure deficiencies).
CONCLUSION
For the reasons above, Plaintiff's Third Amended Complaint (ECF No. 38) should be DISMISSED. Given the Court's recommendation to dismiss the Third Amended Complaint with prejudice, Plaintiff's motion to reconsider (ECF No. 37) should be DENIED as moot.