Marsh v. Bank of Sierra, Inc.

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TERRANCE MARSH, Case No. 1:22-cv-00508-JLT-BAK (SKO)

12 Plaintiff, FIRST SCREENING ORDER

13 v. ORDER FOR PLAINTIFF TO:

14 BANK OF SIERRA, INC., et al., (1) FILE A FIRST AMENDED COMPLAINT;

OR

15 Defendants.

(2) NOTIFY THE COURT THAT HE

16 WISHES TO STAND ON HIS

COMPLAINT

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(Doc. 1)

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THIRTY-DAY DEADLINE

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21 Plaintiff Terrance Marsh is proceeding pro se and in forma pauperis in this action. Plaintiff

22 filed his complaint on April 29, 2022. (Doc. 1). Upon review, the Court concludes that the

23 complaint states one cognizable claim. Plaintiff has the following options as to how to proceed:

24 (1) Plaintiff may file an amended complaint, which the Court will screen in due course; or

25 alternatively, (2) Plaintiff may file a statement with the Court stating he wants to stand on this

26 complaint.

27 I. SCREENING REQUIREMENT

28 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen

1 each case and shall dismiss the case at any time if the Court determines that the allegation of poverty

2 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which

3 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.

4 28 U.S.C. § 1915(e)(2). See also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required

5 of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v.

6 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma

7 pauperis complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir.

8 1998) (affirming sua sponte dismissal for failure to state a claim). If the Court determines that a

9 complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies

10 of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)

11 (en banc).

12 In determining whether a complaint fails to state a claim, the Court uses the same pleading

13 standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and

14 plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P.

15 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of

16 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

17 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A

18 complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack

19 of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri

20 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff must allege a minimum factual

21 and legal basis for each claim that is sufficient to give each defendant fair notice of what the

22 plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of the

23 Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

24 In reviewing a pro se complaint, the Court is to liberally construe the pleadings and accept

25 as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94

26 (2007). Although a court must accept as true all factual allegations contained in a complaint, a

27 court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] complaint

28 [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the

1 line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S.

2 at 557).

3 II. SUMMARY OF PLAINTIFF’S COMPLAINT

4 Plaintiff alleges that on or about October 29, 2019, he entered Defendant Bank of Sierra’s

5 city branch and tried to deposit a check into his account. (Doc. 1 at 2). Plaintiff alleges he is a

6 disabled veteran and was denied services under the Americans with Disabilities Act. (Id.) Plaintiff

7 reports that when he protested his mistreatment, the bank staff refused to deposit his check. (Id.)

8 Defendant Margaret Droese started asking questions about Plaintiff’s personal medical history.

9 (Id.) When Plaintiff asked Ms. Droese why she was treating him so poorly, she responded, “your

10 people have been passing bad checks.” (Id.)

11 Plaintiff alleges that when he asked Ms. Droese what she meant by your people, she

12 responded with a loud voice and said, “black people.” (Id.) Plaintiff alleges that he then asked to

13 speak to the bank manager, Karen Mitchell, who stated that Ms. Droese was following bank policy.

14 (Id.) According to Plaintiff, Ms. Mitchell then stated that she would not be taking action against

15 Ms. Droese based on Plaintiff’s complaint that he was “denied access to disabled services and

16 denied bank services based on race and because I am Afro American.” (Id.) Ms. Mitchell stated

17 that under no circumstances will she allow Plaintiff to deposit or cash his check even though he

18 was an account holder at the Bank of Sierra at that time. (Id.) According to Plaintiff, Ms. Mitchell

19 went on to state that, “it was not her fault that blacks in the community chose to try to pass bad

20 checks at their bank and that she was following bank policy,” and then refused Plaintiff services.

21 (Id.)

22 III. DISCUSSION

23 For the reasons discussed below, the Court finds that the complaint states one cognizable

24 claim. Plaintiff shall be provided with the legal standards that appear to apply to his claims and

25 will be granted an opportunity to file an amended complaint to correct the identified deficiencies.

26 A. Federal Subject Matter Jurisdiction

27 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to

28 that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal courts are

1 presumptively without jurisdiction over civil actions, and the burden to establish the contrary rests

2 upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377

3 (1994). Generally, there are two bases for subject matter jurisdiction: federal question jurisdiction

4 and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332.

5 Plaintiff contends jurisdiction is proper under 28 U.S.C. § 1331 and 1343. (Doc. 1 at 1).

6 These are jurisdictional statutes which do not state independent causes of action. See Muhammad

7 v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *3 (N.D. Cal. Oct. 10, 2012).

8 Pursuant to 28 U.S.C. § 1331, federal district courts have federal question jurisdiction over “all

9 civil actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises

10 under’ federal law either where federal law creates the cause of action or ‘where the vindication of

11 a right under state law necessarily turn[s] on some construction of federal law.” Republican Party

12 of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting Franchise Tax Bd. v.

13 Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)). The presence or absence of federal

14 question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. v.

15 Williams, 482 U.S. 386, 392 (1987). Under this rule, “federal jurisdiction exists only when a federal

16 question is presented on the face of the plaintiff’s properly pleaded complaint.” Id.

17 Section 1343(a) states that district courts have original jurisdiction over certain civil actions,

18 including actions for damages to redress deprivations of federally secured civil rights. Accordingly,

19 jurisdiction is proper pursuant to Sections 1331 and 1343 because Plaintiff has asserted claims

20 arising under the Constitution and laws of the United States. See, e.g., Quintero v. Merced Unified

21 Sch. Dist., 2021 U.S. Dist. LEXIS 207768, at *8 (E.D. Cal. Oct. 27, 2021).

22 B. Legal Standards

23 In the event Plaintiff amends his complaint, the Court provides the following legal standards

24 that may be relevant to his action:

25 1. Fourteenth Amendment

26 The Equal Protection Clause requires that persons who are similarly situated be treated

27 alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). An equal

28 protection claim may be established by showing that the defendant intentionally discriminated

1 against the plaintiff based on the plaintiff’s membership in a protected class. Serrano v.

2 Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th

3 Cir. 2001). Under this theory of equal protection, the plaintiff must show that the defendant’s

4 actions were a result of the plaintiff’s membership in a suspect class, such as race. Thornton v.

5 City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).

6 Plaintiff alleges that he is a member of a protected class as an “Afro American.” (Doc. 1

7 at 2.) Plaintiff asserts that Ms. Droese at Bank of Sierra refused to deposit his check and made

8 the statement that, “your people have been passing bad checks,” allegedly referring to “black

9 people.” (Id.) Plaintiff alleges that he was “denied access to disabled services and denied bank

10 services based on race and because I am Afro American.” (Id.) Plaintiff alleges that the bank’s

11 manager, Ms. Mitchell, stated that under no circumstances will she allow Plaintiff to deposit or

12 cash his check even though he was an account holder at the Bank of Sierra at that time. (Id.)

13 According to Plaintiff, Ms. Mitchell went on to state that, “it was not her fault that blacks in the

14 community chose to try to pass bad checks at their bank and that she was following bank policy,”

15 and then refused Plaintiff services. (Id.) Accepting as true all factual allegations contained in the

16 complaint, Plaintiff has sufficiently alleged a claim for violation of the Equal Protection Clause.

17 2. Americans with Disabilities Act

18 The ADA was enacted in response to a “compelling need” for a “clear and comprehensive

19 national mandate” to eliminate discrimination against disabled individuals. PGA Tour, Inc. v.

20 Martin, 532 U.S. 661, 675 (2001). “To effectuate its sweeping purpose, the ADA forbids

21 discrimination against disabled individuals in major areas of public life, among them employment

22 (Title I of the Act), public services (Title II), and public accommodations (Title III).” Id. (internal

23 citations omitted). Title III establishes a “[g]eneral rule” that:

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No individual shall be discriminated against on the basis of disability in the full and

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equal enjoyment of the goods, services, facilities, privileges, advantages, or

26 accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.

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1 42 U.S.C.A. § 12182(a). Specifically, Title III prohibits places of public accommodation from

2 denying disabled individuals “to participate in or benefit from the goods, services, facilities,

3 privileges, advantages, or accommodations of an entity.” 42 U.S.C.A. § 12182(b)(1)(A)(i).

4 To establish a discrimination claim under Title III, Plaintiff must show that (1) he is

5 disabled within the meaning of the ADA; (2) Defendant is a private entity that owns, leases, or

6 operates a place of public accommodation; and (3) Plaintiff was denied full and equal treatment by

7 Defendant because of his disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).

8 Here, there is no dispute that Defendant Bank of Sierra is a private entity that operates a place of

9 public accommodation. Plaintiff alleges that he “was denied disabled services at the bank, as

10 [Plaintiff] is a disabled veteran within the meaning of the [ADA].” (Doc. 1 at 4). Plaintiff does not

11 provide additional details demonstrating he is disabled within the meaning of the ADA, or that he

12 was denied full and equal treatment because of his disability. Plaintiff’s complaint therefore falls

13 short of establishing a discrimination claim under the ADA.

14 Plaintiff’s prayer for relief seeks $200,000 in actual damages and $200,000 in punitive

15 damages. (Doc. 1 at 5). To the extent Plaintiff seeks damages for a violation under Title III of the

16 ADA, Plaintiff’s complaint fails to state a claim because damages are not recoverable under Title

17 III of the ADA; only injunctive relief is available for violations of Title III. 42 U.S.C. § 12188(a)(1)

18 (providing that remedies under Title III are the same as those outlined in 42 U.S.C. § 2000a-3(A),

19 which do not permit recovery of monetary damages); Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.

20 2002).

21 With respect to a claim for injunctive relief under Title III of the ADA regarding a private

22 company’s conduct, 42 U.S.C. § 12182(a) provides that no individual shall be discriminated against

23 on the basis of disability in the full and equal enjoyment of services. Because injunctive relief is

24 the only available remedy under Title III, a plaintiff claiming discrimination under Title III “must

25 not only demonstrate the familiar requirements for standing—injury-in-fact, traceability,

26 redressability—but also ‘a sufficient likelihood that he [or she] will be wronged again in a similar

27 way.’ ” Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014)

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1 (quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). In other words,

2 a plaintiff must face a “real and immediate threat of repeated injury.” Id.

3 Here, Plaintiff describes the one occasion that he was refused services at the Bank of Sierra.

4 (Doc. 1 at 2-4.) Plaintiff’s complaint does not include allegations that he will be wronged again in

5 a similar way. Accordingly, Plaintiff fails to allege facts sufficient to confer standing on Plaintiff

6 to seek injunctive relief.

7 C. Leave to Amend

8 The Court has screened Plaintiff’s complaint and finds that it states a potentially cognizable

9 Fourteenth Amendment Equal Protection claim, but fails to state a cognizable claim under the

10 ADA. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give

11 leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with time

12 to file an amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000).

13 Plaintiff is granted leave to file an amended complaint within thirty days. If Plaintiff

14 chooses to amend his complaint, in his amended complaint he must state what each named

15 defendant did that led to the deprivation of his constitutional or other federal rights. Fed. R. Civ.

16 P. 8(a); Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff

17 should note that although he has been given the opportunity to amend, it is not for the purpose of

18 changing the nature of this suit or adding unrelated claims. George v. Smith, 507 F.3d 605, 607

19 (7th Cir. 2007) (no “buckshot” complaints).

20 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v.

21 Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in

22 itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an

23 amended complaint, as in an original complaint, each claim and the involvement of each defendant

24 must be sufficiently alleged. The amended complaint should be clearly and boldly titled “First

25 Amended Complaint,” refer to the appropriate case number, and be an original signed under penalty

26 of perjury.

27 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if he

28 believes that additional true factual allegations would state a cognizable ADA claim. If Plaintiff

1 files an amended complaint, the Court will screen that complaint in due course. Alternatively,

2 Plaintiff may choose to stand on his complaint and proceed only on the Fourteenth Amendment

3 Equal Protection claim.

4 IV. ORDER

5 Based on the foregoing, IT IS ORDERED that:

6 1. Within thirty (30) days from the date of service of this order, Plaintiff shall either:

7 a. File a First Amended Complaint; or

8 b. Notify the Court in writing that he wants to stand on this complaint;

9 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended

10 complaint “First Amended Complaint” and refer to case number 1:22-cv-00508-

11 JLT-BAK (SKO); and

12 3. Failure to comply with this order may result in the dismissal of this action.

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IT IS SO ORDERED.

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15 Dated: May 12, 2022 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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