Halloum v. 60's Diner and Restaurant LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

MOHAMMAD A. HALLOUM. Civ. No. 6:25-cv-01704-AA

Plaintiff, OPINION & ORDER

v.

60’S DINER AND RESTAURANT LLC;

DAVID EMAMI; DIANA EMAMI;

BARRINGTON MANAGEMENT,

Defendants.

_______________________________________

AIKEN, District Judge.

Self-represented Plaintiff Mohammad A. Halloum seeks leave to proceed in

forma pauperis (“IFP”) in this action. ECF Nos. 2, 6. For the reasons set forth below,

Plaintiff’s IFP application is GRANTED. However, for the reasons set forth below,

the Amended Complaint, ECF No. 5, is DISMISSED with leave to amend. Plaintiff’s

Motion to Expedite Proceedings, ECF No. 7, is DENIED with leave to refile. Plaintiff

shall have thirty days from the date of this Order in which to file a second amended

complaint.

LEGAL STANDARD

Generally, all parties instituting any civil action in 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 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, a court must determine whether the litigant is unable to

pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess

whether the action is frivolous, malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief from a defendant who is immune to such relief.

28 U.S.C. § 1915(e)(2)(B).

With regard to the second of these determinations, district courts have the

power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the

complaint on the defendants 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 Federal Rule of Civil Procedure 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, the 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 pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of

any doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.

1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the

complaint and the opportunity to amend, unless the complaint’s deficiencies cannot

be cured by amendment. Id.

DISCUSSION

When assessing an IFP petition, the Court first must determine whether the

plaintiff has made a sufficient showing of indigency. Here, the Court is satisfied with

Plaintiff’s showing of indigency, ECF No. 6, and the petition will be GRANTED.

The Court has considered the allegations made in the original Complaint, ECF

No. 1, and those contained in the Amended Complaint, ECF No. 5. Plaintiff alleges

that he was hired by Defendants David Emami and 60’s Diner and Restaurant LLC

to work as a server and that, despite good performance, he was fired three days later.

Plaintiff alleges that he was not provided with the promised hours, that he was

subjected to sexual harassment by management, mistreated by management and

coworkers, made to serve uncooked food, and retaliated against for complaining of

the working conditions and his treatment. Plaintiff seeks to bring claims pursuant to

42 U.S.C. § 12203 and 42 U.S.C. § 3631.

First, 42 U.S.C. § 3631 is a criminal statute and does not provide a private

right of action. See Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001)

(observing that 42 U.S.C. § 3631 is a criminal provision); Selck v. City of Sacramento,

No. 2:19-cv-0341-JAM-EFB PS, 2020 WL 729413, at *3 (E.D. Cal. Feb. 13, 2020)

(“Likewise, 42 U.S.C. § 3631 of the Fair Housing Act is a criminal provision that does

not create a private right of action.”); Neal v. Aspen Park Holdings, LLS¸ No. 2:17-cv-

1098-JAM-EFB PS, 2018 WL 2287949, at *2 (E.D. Cal. May 18, 2018 (“Plaintiff also

cannot assert a claim for violation of 42 U.S.C. § 3631 of the Fair Housing Act. That

statute is a criminal provision that does not create a private right of action.”).

Criminal statutes are enforced by prosecuting attorneys, such as the United States

Attorney, and generally do not provide private rights of action for citizens like

Plaintiff to bring a civil claim. The Court will dismiss Plaintiff’s § 3631 claim and,

because the defects in this claim cannot be remedied by the allegation of additional

facts, dismissal of this claim is with prejudice.

42 U.S.C. § 12203 provides a cause of action for retaliation under the

Americans with Disabilities Act (“ADA”), stating: “No person shall discriminate

against any individual because such individual has opposed any act or practice made

unlawful by this chapter or because such individual made a charge, testified, assisted.

or participated in any manner in an investigation, proceeding, or hearing under this

chapter.” 42 U.S.C. § 12203(a). “To establish a prima facie case of retaliation under

the ADA, an employee must show that: (1) he or she engaged in a protected activity;

(2) suffered an adverse employment action; and (3) there was a causal link between

the two.” Pardi v. Kaiser Foundation Hospitals, 389 F.3d 840, 849 (9th Cir. 2004).

Here, there is no clear allegation that Plaintiff has engaged in a protected

activity under the ADA specifically. See, e.g., Pardi, 389 F.3d at 850 (“Pursuing one’s

rights under the ADA constitutes a protected activity.”); Arnold v. Pfizer, 970 F.

Supp.2d 1106, 1141 (D. Or. 2013) (“A request for reasonable accommodation of a

disability qualifies as protected activity under the ADA.”). Other than citing to §

12203 as a basis for his claim, the Complaint and Amended Complaint contain no

further reference to the ADA or to disability discrimination, although they do discuss

other forms of discrimination and retaliation. The Court concludes that, as presently

pleaded, the Amended Complaint fails to state a claim for ADA retaliation and so the

claim will be dismissed. Because Plaintiff might remedy the defects in his claim by

bringing it under some other statute or by alleging additional facts to more clearly

make out an ADA retaliation claim under § 12203, dismissal of this claim shall be

with leave to amend. Plaintiff shall have thirty days in which to file a second

amended complaint. In drafting the second amended complaint, Plaintiff should bear

in mind that the pleading must be complete and may not refer back to either the

original Complaint or the Amended Complaint.

Although they are not included as separate claims, the Complaint and

Amended Complaint refer to wrongful termination, sexual harassment,

whistleblowing, negligence, and other state law claims that might be included in an

amended complaint. However, because both Plaintiff and the named Defendants are

residents of Oregon and, as discussed above, Plaintiff has not stated a claim under a

federal statute, this Court cannot exercise jurisdiction over such state law claims.

See 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1332 (diversity

jurisdiction); 28 U.S.C. § 1367 (supplemental jurisdiction). Plaintiff would be well

advised to consider pursuing his state law claims in the Oregon circuit courts, which

possess general jurisdiction over state law claims between Oregon residents.

CONCLUSION

For the reasons set forth above, Plaintiff’s Amended Application for Leave to

Proceed IFP, ECF Nos. 2, 6, is GRANTED, but the Amended Complaint, ECF No. 5,

is DISMISSED without service on Defendants. Dismissal is with leave to amend

unless specifically noted above. Plaintiff shall have thirty (30) days from the date of

this Order in which to file an amended complaint. Plaintiff is advised that he may

not replead any claim that has been dismissed with prejudice or without leave to

amend. Plaintiff is further advised that failure to file an amended complaint within

the allotted time will result in a judgment of dismissal without further notice.

Because Plaintiff’s Amended Complaint has been dismissed, the Court DENIES

Plaintiff’s Motion to Expedite Proceedings, ECF No. 7, with leave to refile.

It is so ORDERED and DATED this 8th day of October 2025.

/s/Ann Aiken

ANN AIKEN

United States District Judge