(PS) Davidzon v. SF Markets, LLC

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 VLADISLAV DAVIDZON., No. 2:20-CV-2221-JAM-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SF MARKETS, LLC, et al., 15 Defendants. [16] 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 Court is Defendants’ unopposed motion to dismiss, ECF No. 6. [19] 20 I. PLAINTIFF’S ALLEGATIONS 21 This action proceeds on Plaintiff’s original complaint, filed in the Shasta County 22 Superior Court and removed to this Court based on federal question jurisdiction. See ECF No. 1. 23 Plaintiff’s complaint, which is presented on a state court small claims form, contains the 24 following declaration of alleged facts: 25 On September 1, 2020, Corey Cockrum and SF Markets, LLC, refused to honor their obligations under the Americans with Disabilities Act to allow 26 me to shop without a mask. Redding Police were called at my request. 27 When the officer arrives, he walked into the store without a mask and announced that he will not enforce the mask orders. SF Markets, LLC, 28 explicitly allowed the officer into the store without the mask. Corey 1 Cockrum and assistant threatened me with a citizen’s arrest for trespassing if I refused to leave the store, so I complied. [2] Grocery stores sell groceries and also the shopping experience itself. 3 Forced curbside pickup denies medically-exempt customers the experience, and is thus insufficient per Americans with Disabilities Act 4 and California Civil Code Section 51b. 5 Corey Cockrum stated that he was simply following CDC guidelines. This is blatantly false, as CDC website now explicitly states “don’t 6 attempt to force anyone who appears to be angry or violent to follow COVID-19 prevention policies.” [7] I am requesting the court issue an injunction requiring Cockrum and SF 8 Markets, LLC, to allow me to both enjoy the shopping experience and purchase groceries, without a mask, just as any other customer in their 9 store may do with a mask, and to provide appropriate financial compensation for the damages incurred. [10] ECF No. 1-1, pg. 8. [12] 13 II. STANDARDS FOR MOTION TO DISMISS 14 In considering a motion to dismiss, the Court must accept all allegations of 15 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 16 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 17 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 18 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 19 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, [20] 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 21 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 22 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 23 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 24 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 25 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 26 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, [27] 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 28 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 1 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 2 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 3 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 4 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 5 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 Iqbal, 129 S. Ct. at 1949 . “The plausibility standard is not akin to a ‘probability requirement,’ but 7 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 8 Twombly, 550 U.S. at 556 ). “Where a complaint pleads facts that are ‘merely consistent with’ a 9 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 10 to relief.” Id. (quoting Twombly, 550 U.S. at 557 ). 11 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 12 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 13 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 14 documents whose contents are alleged in or attached to the complaint and whose authenticity no 15 party questions, see Branch, 14 F.3d at 454 ; (2) documents whose authenticity is not in question, 16 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 17 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 18 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 19 1994). 20 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 21 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 22 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). [23] 24 III. DISCUSSION 25 In their unopposed motion to dismiss, Defendants argue: (1) Plaintiff fails to state 26 a prima facie claim under the Americans with Disabilities Act or California state law because he 27 has not alleged he has a qualifying disability; and (2) Defendant Cockrum must be dismissed as 28 an improper defendant. For the reasons discussed below, the Court agrees. 1 A. Qualifying Disability 2 Plaintiff brings this action under the Americans with Disabilities Act (ADA) and 3 California’s Unruh Civil Rights Act. See ECF No. 1-1, pg. 8. 4 The ADA bars discrimination against any individual on the basis of disability. 5 See 42 U.S.C. § 12182 (a); see also Miller v. California Speedway Corp., 536 F.3d 1020 , 1024 6 (9th Cir. 2008). It is axiomatic that an ADA claimant must allege the existence of a disability 7 within the meaning of the act. See Arizona ex rel. Goddard v. Harkins Amusement Enterprises, 8 Inc., 603 F.3d 666, 670 (9th Cir. 2010). Moreover, the ADA claimant must allege, and later 9 prove, that the disability results in a “substantial limitation of a major life activity.” 42 U.S.C. 10 § 12102(1)(A). 11 Under the Unruh Civil Rights Act, a violation of the ADA also constitutes a 12 violation of state law. See Cal. Civil Code § 51 (f). Additionally, the Unruh Civil Rights Act 13 generally prohibits discrimination by businesses based on disability. See Cal. Civil Code § 51 (b). 14 Finally, a claimant presenting an Unruh Civil Rights Act claim not based on a violation of the 15 ADA must allege facts establishing that the defendant intentionally discriminated against a 16 disabled person because of the disability. See Lentini v. California Ctr. For the Arts, Escondido, [17] 370 F.3d 837, 846-7 (9th Cir. 2004). 18 The Court agrees with Defendants that Plaintiff’s complaint fails to allege 19 sufficient facts to sustain a claim under either the ADA or Unruh Civil Rights Act because 20 Plaintiff has not alleged the existence of any disability, let alone a disability that results in a 21 substantial limitation of a major life activity. Plaintiff should be provided leave to amend to 22 attempt to cure this defect. 23 B. Improper Defendant 24 Defendants argue: 25 Title III of the ADA provides disabled individuals redress for discrimination by “any person who owns, leases (or leases to), or operates 26 a place of public accommodation.” 42 U.S.C. § 12182 (a). Plaintiff does not allege—nor can he—that Cockrum owns, leases, or operates the Store 27 at issue or any other Sprouts store location. Indeed, individuals who are merely employees of a public accommodation cannot be held liable under 28 the ADA. Coddington v. Adelphi Univ., 45 F. Supp. 2d 211 , 217 1 (E.D.N.Y. 1999); Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1335 (N.D. Cal. 1994). As such, Plaintiff's claim against Cockrum for violation 2 of the ADA must be dismissed. 3 ECF No. 6-1, pg. 16. 4 The Court agrees that Defendant Cockrum should be dismissed because Plaintiff 5 | has not alleged that he owns, leases, or operates a place of public accommodation. The Court 6 | does not, however, find that such dismissal must be with prejudice at this time. While Defendants 7 || suggest that Cockrum is merely an employee who cannot be held liable, there is no evidence g || currently before the Court upon which such a finding can be made. [9] 10 IV. CONCLUSION 11 Based on the foregoing, the undersigned recommends that: 12 1. Defendants’ unopposed motion to dismiss, ECF No. 6, be granted; and 13 2. Plaintiff be directed to file a first amended complaint. 14 These findings and recommendations are submitted to the United States District 15 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within 14 days 16 || after being served with these findings and recommendations, any party may file written objections 17 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 18 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 19 | Yist, 951 F.2d 1153 (9th Cir. 1991). [20] 21 | Dated: February 9, 2021 Sx<o_22 DENNIS M. COTA 3 UNITED STATES MAGISTRATE JUDGE