The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DEBRA A. KEITH, Case No.: 21CV1782-JAH-JLB
12 Plaintiff,
ORDER GRANTING IN PART AND
13 v. DENYING IN PART DEFENDANT’S
MOTION TO DISMISS THE
14 THE CITY OF SAN DIEGO
COMPLAINT
15 Defendant.
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17 I. INTRODUCTION
18 Pending before the Court is the City of San Diego’s (“Defendant” or the “City”)
19 motion to dismiss the complaint. (ECF No. 8). The motion has been fully briefed. (ECF
20 Nos. 8, 16, 17). Having considered the parties’ submissions, the Court GRANTS in part
21 and DENIES in part Defendant’s motion to dismiss Plaintiff’s complaint.
22 II. PROCEDURAL BACKGROUND
23 Plaintiff Debra A. Keith (“Keith” or “Plaintiff”), proceeding pro se, filed a complaint
24 against the City on October 18, 2021 under U.S.C. Section 1983, seeking “[i]njunctive
25 relief mandating the City of San Diego to return [P]laintiff’s street back to its original
26 design/condition prior to the city’s alteration, in order for her to park and enter/exit her
27 vehicle safely”, as well as “compensatory, monetary, punitive and nominal damages[.]”
28 (ECF No. 1 at 7, 57). On November 15, 2021, the City filed a motion to dismiss the
1 complaint for failure to state a claim. (ECF No. 4). Plaintiff responded in opposition, (ECF
2 No. 7), to which the City replied. (ECF No. 8).
3 III. FACTUAL BACKGROUND1
4 Plaintiff purchased a home “on Voltaire Street in between the cross streets of
5 Catalina and Ebers Street.” (ECF No. 1 at 2). At the time, the street consisted of a
6 “[d]ouble [y]ellow line down the middle of [the] street with two white lines on both sides
7 of the street”, and the “white lines on both sides of this street served as vehicle parking and
8 bicycle traffic for years.” (Id. at 2-3). In 1998, after “Plaintiff became disabled . . . the
9 City of San Diego installed a Handicap parking space in front of her home[.]” (Id. at 3).
10 That space allowed Plaintiff to park in front of her home and “enjo[y] the safety and
11 convenience of entering and exiting her vehicle without risk[.]” (Id.).
12 Almost two decades later, in 2015, the City installed a bicycle lane across the street
13 from Plaintiff’s home “heading up the hill toward the beach.” (Id.). This new lane “runs
14 from the bottom of Catalina Street to the top of the hill, then suddenly ends at the top near
15 Bolinas Street.” (Id.). According to Plaintiff, the bicycle lane “suddenly turns into broken
16 lines and just disappears at the top of the hill” and “on the downhill sides of Voltaire
17 Street[,] there is no [b]icycle [l]ane but instead random depictions painted on the street of
18 a bicycle and arrows directing bicyclists down the middle of the street.” (Id.).
19 Plaintiff alleges that this “design compromises the [P]laintiff’s side of the street[,]
20 exposing her to a substantial risk of life when entering and exiting her vehicle”, since the
21 “arrows direct both bicyclists and vehicles down this hill to share [the] same narrowed
22 lane[.]” (Id.). According to Plaintiff, this has resulted in at least eight different safety
23 incidents on Voltaire Street since the installation of the bicycle lane. (Id. at 5-6). Plaintiff
24 claims that this alteration has forced Plaintiff and others to park partially on the curb out
25 of safety concerns, which Plaintiff did for years until receiving a ticket for illegal parking.
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1 This is a recitation of pleaded facts for purposes of the instant motion to dismiss, and
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1 (Id.). The installation of the bicycle lane and the related “narrowing/widening of plaintiff’s
2 street . . . alter[ed] the original design [of the Plaintiff’s parking area] . . . which had been
3 used as the Plaintiff’s Disability Parking.” (Id. at 4). Plaintiff alerted the City and
4 requested a change to no avail.
5 IV. LEGAL STANDARD
6 A. Standard for a Motion to Dismiss Under FRCP 12(b)(6)
7 The City has moved to dismiss Plaintiff’s complaint under Federal Rule of Civil
8 Procedure 12(b)(6), which tests the legal sufficiency of the claims asserted. Fed. R. Civ.
9 P. 12(b)(6). A complaint does not require detailed allegations to survive dismissal; instead,
10 it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
11 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
12 plaintiff pleads factual content that allows the court to draw the reasonable inference that
13 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
14 (2009) (citing Twombly, 550 U.S. at 556). “The pleading standard Rule 8 announces does
15 not require ‘detailed factual allegations,’ but it demands more than an unadorned, the
16 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citations omitted).
17 On a motion to dismiss, the court “accept[s] as true all of the factual allegations set
18 out in plaintiff’s complaint, draw[s] inference from those allegations in the light most
19 favorable to plaintiff, and construe[s] the complaint liberally.” Doe v. United States, 419
20 F.3d 1058, 1062 (9th Cir. 2005). “The issue is not whether the plaintiff will ultimately
21 prevail, but whether the plaintiff is entitled to offer evidence to support the plaintiff's
22 claim.” U.S. ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1121 (C.D. Cal. 2000) (citing
23 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987)).
24 B. Standard for Claims by a Pro Se Plaintiff
25 The Ninth Circuit has made clear that pro se pleadings should be liberally construed
26 on a motion to dismiss. See, e.g., Capp v. Cnty. of San Diego, 940 F.3d 1046, 1052 (9th
27 Cir. 2019); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint,
28 “however clumsily pleaded, must be held to less stringent standards than formal pleadings
1 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
2 Moreover, a “district court should not dismiss a pro se complaint without leave to amend
3 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by
4 amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (citations omitted).
5 V. DISCUSSION
6 A. Overview of Parties’ Arguments
7 The City has moved to dismiss Plaintiff’s complaint, arguing rather succinctly that
8 it fails to state any specific cause of action, and that it merely “toss[es] around many
9 different allegations, without any specificity as to what statutes, constitutional rights, or
10 civil rights the City has violated.” (ECF No. 4-1 at 5). In the alternative, the City has
11 moved for a more definite statement under Rule 12(e) because Plaintiff’s “pleading is so
12 vague and ambiguous that the City cannot reasonably prepare a responsive pleading.” (Id.
13 at 6).
14 In her opposition, Plaintiff contests the City’s depictions of the street in question and
15 further contends that “[b]ased on the facts/evidence submitted in this case, the Plaintiff has
16 demonstrated that she was harmed (and is still exposed to a risk) by a dangerous condition
17 created by the City[‘s] . . . alteration to her street.” (Id. at 5). Plaintiff also cites to Fortyune
18 v. City of Lomita2 for the proposition that “Title II requires public entities to maintain
19 accessible public sidewalks.” Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir.
20 2014).
21 In response, the City argues that (1) Plaintiff alleges a dangerous condition claim in
22 her opposition only; (2) Plaintiff’s opposition cannot be used to cure deficiencies within
23 the complaint; and (3) Dangerous Condition claims are state law claims over which federal
24 courts lack jurisdiction. (ECF No. 8). The City further argues that Plaintiff’s complaint
25 should be dismissed without leave to amend because dangerous condition claims are state
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27 2 In her opposition, though Plaintiff cites to the District Court opinion, Fortyune v. City of
Lomita, 823 F. Supp. 2d 1036, 1037 (C.D. Cal. 2011), Plaintiff references the Ninth
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1 law claims, federal courts lack jurisdiction over such claims, and subsequent amendments
2 will only result in a dismissal. (ECF No. 8 at 2).
3 B. Plaintiff’s Non-ADA Claims are Insufficiently Pled
4 Plaintiff’s civil cover sheet indicates that she is bringing a civil rights action under
5 U.S.C. Section 1983. (ECF No. 1 at 57). Though Plaintiff’s complaint also alleges vague
6 “constitutional deprivations”, it is unclear which constitutional right(s) Plaintiff seeks to
7 vindicate. (Id. at 6). Although Plaintiff appears to allege further facts supporting a
8 dangerous condition in her opposition to the City’s motion to dismiss, and makes
9 references to deliberate indifference, as the City notes, for purposes of a motion to dismiss,
10 the Court looks only at the complaint, and not to additional facts alleged in an opposition
11 brief. See, e.g., Rosales v. Cnty. of San Diego, 511 F. Supp. 3d 1070, 1097 (S.D. Cal. 2021)
12 (explaining that “[g]enerally, material beyond the pleadings may not be considered in
13 deciding a motion to dismiss”); Covert v. City of San Diego, 2017 WL 1094020, at *5 (S.D.
14 Cal. 2017) (refusing to consider additional allegations pled in the opposition brief but
15 absent from the operative complaint). The Court looks only to the facts alleged in the
16 operative complaint for purposes of the instant motion.
17 After reviewing Plaintiff’s complaint, the Court GRANTS the City’s motion to
18 dismiss Plaintiff’s Section 1983 and constitutional violation claims. Even in light of the
19 legal standard, both with respect to Plaintiff’s pro se status and the Court’s acceptance of
20 Plaintiff’s pleadings as fact for purposes of the motion, Plaintiff’s complaint fails to clearly
21 state a cause of action or make out a prima facie case. Indeed, it is unclear which
22 constitutional right Plaintiff believes has been violated, and Plaintiff’s Section 1983 claim
23 fares no better. However, because it is not “absolutely clear that the deficiencies of the
24 complaint could not be cured by amendment”, the Court dismisses the aforementioned
25 claims without prejudice and grants Plaintiff leave to amend the complaint to plead
26 additional facts. Rosati, 791 F.3d at 1039.
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1 C. Plaintiff Has Stated a Claim Under Title II of the ADA
2 Plaintiff’s civil cover sheet also indicates that she is bringing a civil rights action
3 under the Americans with Disabilities Act (“ADA”). (ECF No. 1 at 57).3 The City’s
4 motion does not specifically address Plaintiff’s ADA claim except to argue that Plaintiff’s
5 claims more generally do not give rise to a cognizable claim.
6 Though Plaintiff’s complaint does not expressly state that she is bringing a claim
7 under Title II of the ADA, when reading the complaint in light of Plaintiff’s pro se status,
8 as best as the Court can discern, Plaintiff appears to be bringing an action under Title II of
9 the ADA. “Title II of the ADA prohibits a public entity from discriminating against a
10 qualified individual with a disability on the basis of disability.” Thompson v. Davis, 295
11 F.3d 890, 895 (9th Cir. 2002) (citations omitted). Speaking broadly, to demonstrate a
12 violation of Title II of the ADA, Plaintiff must demonstrate that “(1) she is a qualified
13 individual with a disability; (2) she was either excluded from participation in or denied the
14 benefits of a public entity's services, programs or activities, or was otherwise discriminated
15 against by the public entity; and (3) such exclusion, denial of benefits, or discrimination
16 was by reason of her disability.” Fortyune, 766 F.3d at 1102. (internal quotations omitted).
17 Title II also provides that “no qualified individual with a disability shall, by reason
18 of such disability, be excluded from participation in or be denied the benefits of the
19 services, programs, or activities of a public entity, or be subjected to discrimination by any
20 such entity.” Bassilios v. City of Torrance, CA, 166 F. Supp. 3d 1061, 1069 (C.D. Cal.
21 2015) (citing 42 U.S.C. § 12132). In other words, Title II “imposes program-accessibility
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23 3 The City argues that a dangerous condition claim arises under state law only, and that
because the Court has no jurisdiction over such claims, the Court should dismiss the claim
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and complaint with prejudice. As the Court reads Plaintiff’s complaint, the dangerous
25 condition allegations are part of Plaintiff’s ADA claim insofar as the dangerous condition
inhibits Plaintiff’s access to her handicap parking spot. To the extent that Plaintiff intended
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to bring a stand-alone state law dangerous condition claim, Plaintiff is instructed that
27 federal courts “are courts of limited jurisdiction and are presumptively without jurisdiction
over civil actions”, and the “burden of establishing the contrary rests upon the party
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1 requirements on state and local governments” and “requires these entities to make
2 reasonable modifications in policies, practices, or procedures when the modifications are
3 necessary to avoid discrimination on the basis of disability, unless the public entity can
4 demonstrate that making the modifications would fundamentally alter the nature of the
5 service, program, or activity.” Id. (citation and internal quotations omitted). Further, the
6 Ninth Circuit has “held that Title II requires public entities to maintain accessible public
7 sidewalks”, as well as “maintain accessible on-street public parking.” Fortyune, 766 F.3d
8 at 1102 (citation omitted). And where no technical requirements apply, the relevant
9 standard for “on-street parking is that the service, program, or activity, when viewed in its
10 entirety, is readily accessible to and usable by individuals with disabilities.” Sarfaty v. City
11 of Los Angeles, 2019 WL 8163477, at *6 (C.D. Cal. 2019) (citing 28 C.F.R. 35.150)
12 (internal quotations and emphasis omitted).
13 Sarfaty v. City of Los Angeles is instructive. There, plaintiffs brought a claim under
14 Title II of the ADA, arguing that the city’s installation of “cycletracks” around bicycle
15 lanes interfered with plaintiffs’ vans, which are equipped with ramps that allow plaintiffs
16 to disembark directly onto the sidewalk. Id. This in turn inhibited plaintiffs’ access to the
17 sidewalk and required them to take a different approach. Id. Plaintiffs in Sarfaty also
18 alleged that, when taken into consideration with other factors, the “cycletracks” “create[d]
19 an allegedly dangerous condition that unduly affects the wheelchair-bound and deters them
20 from accessing establishments[.]” Id. In light of the fact that a court “must accept as true
21 all factual allegations in the complaint and draw all reasonable inferences in favor of the
22 nonmoving party”, the largely fact-specific nature of the inquiry, and plaintiffs’ allegations,
23 the court in Sarfaty held that plaintiffs successfully stated a prima facie case under Title II
24 of the ADA.
25 Here, Plaintiff alleges that she has a disability that requires an accommodated
26 parking spot, which the City recognized by installing a handicap parking spot in 1998.
27 Plaintiff then alleges that the City installed a bicycle lane and “narrowed/widened”
28 Plaintiff’s street in a way that substantially alters her handicap parking spot, rendering it
| ||}unsafe and restricting her access to public street parking. Plaintiff also contends that she
2 made a request to the City for a modification to no avail. As in Sarfaty, in light of the legal
3 standard and Plaintiffs allegations, the Court finds that Plaintiff has made a prima facie
4 ||claim under Title II of the ADA. Though there are lingering factual questions, such
5 || inquiries are best resolved at the summary judgment stage, and not on a motion to dismiss.
6 || Accordingly, the City’s motion to dismiss Plaintiff's ADA claim is DENIED.
7 VI. CONCLUSION
8 It is hereby ORDERED:
9 1. Plaintiffs claims related to Section 1983 and constitutional violations are
10 DISMISSED without prejudice;
11 2. The City’s motion to dismiss Plaintiff's ADA claim is DENIED; and
12 3. Plaintiff is GRANTED leave to file an amended complaint alleging additional
13 facts and curing any deficiencies, as well as additional claims. Any subsequent
14 amended complaint should be complete in itself without reference to prior
15 pleadings.
16 IT IS SO ORDERED.
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Mb ste
19 || DATED: September 7, 2022
20 HON. JOHN A. HOUSTON
1 UNITED STATES DISTRICT JUDGE
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