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concluding that it would be inappropriate to allow the plaintiff to maneuver around the vexatious litigant order by requesting supplemental jurisdiction over her state law claims
Summary of this case from Wagner v. Copart, Inc.Opinion
No C-01-00845 VRW
May 17, 2002
ORDER
Defendants Mark and Regina Balistreri move to dismiss plaintiff Patricia McColm's first amended complaint (FAC) against them. See Doc. # 32. Defendant Sal Balistreri joins in this motion. See Doc. # 36. Defendant City and County of San Francisco (CCSF), Department of Building Inspection and Board of Permit Appeals (collectively, city defendants) also move for dismissal. See Doc. # 30. McColm opposes these motions. See Doc.'s ## 37, 38.
For the following reasons, the court GRANTS the Balistreris' motion to dismiss (Doc. # 32) with prejudice and GRANTS the city defendants' motion to dismiss (Doc. # 30) with prejudice.
I
The following factual summary derives from McColm's FAC. In December 1999, the building inspection division of the CCSF granted a building permit to Mark Balistreri. FAC (Doc. # 29) at ¶ 10. In January 2000, McColm requested that Mark Balistreri and his wife, Regina, limit the hours in which construction work proceeded because of her disabilities. Id. at ¶ 11. McColm suffers from a variety of physical and mental disabilities, including chronic pain, arthritis, degenerative disk disease, Hashimoto's disease (a thyroid disorder), post traumatic stress disorder and major depression. Id. at ¶ 2. McColm suggested if the Balistreris refused to provide any accommodation, McColm would file an appeal with the city to add such conditions to the building permit. Id. at ¶ 11. In response, the Balistreris refused to limit the construction hours and "immediately began to retaliate by causing more, not less[,] noise." Id. at ¶ 12. The construction noise was sufficiently bothersome that "McColm was reduced to sleeping in her closet in an attempt to avoid the explosive wake-up from the dropping of planks and other noise outside her bedroom wall." Id. at ¶ 19.
On or about January 13, 2000, McColm filed a notice of protest appeal with the Board of Permit Appeals (Board) asking for restrictions to Mark Balistreri's building permit to accommodate McColm's disabilities. Id. at ¶ 13. The Board told her that it was not required "to apply the [ADA] to its processes for any purpose and would not therefore either consider or act to provide any benefits, services or advantages of the permit appeals process to plaintiff based on an appellant's requests for conditions based on disability." Id. McColm alleges that the Board has a policy to deny accommodation based on disability. Id. In addition to declining to apply the ADA, the Board required McColm to waive her right to privacy of her medical information before the Board would consider any such information. Id.
After McColm filed the appeal, the Balistreris engaged in a conspiracy with Sal Balistreri, Mark Balistreri's father, and other members of the Balistreri family to retaliate against McColm; McColm specifically alleges that Mark Balistreri "asked an unidentified DOE defendant to `bring out your spike and use it on her.'" FAC (Doc. # 29) at ¶ 14-15. On February 20, 2002, McColm obtained a termporary restraining order against the Balistreris to prohibit their continued harassment. Id. at ¶ 16. Between February 24, 2000, and February 26, 2000, McColm's residence was vandalized by unidentified defendants in conspiracy with the Balistreris. Id. at ¶ 17.
The city defendants denied McColm's appeal; she subsequently sought reconsideration of that ruling, which was also denied. FAC (Doc. # 29) at ¶¶ 18, 20. On February 26, 2001, McColm filed this action. See Doc. # 1. On December 7, 2001, the court dismissed McColm's complaint with leave to amend by December 31, 2001. See 12/7/01 Order (Doc. # 28). McColm filed her FAC on January 2, 2002. See Doc. # 29. The city defendants and the Balistreris promptly moved to dismiss. See Doc.'s ## 30, 32.
II
Both the city defendants and the Balistreris move to dismiss under FRCP 41(b) because McColm did not timely file her amended complaint. In its November 2, 2001, scheduling order, the court provided the following warning to McColm:
NO FURTHER CONTINUANCES WILL BE GRANTED TO PLAINTIFF IN THIS CASE.
11/2/01 Order (Doc. # 20) at 1. In its order dismissing McColm's original complaint, the court stated that McColm must file her amended complaint by December 31, 2001. See 12/7/01 Order (Doc. # 28) at 9. McColm did not do so. While the court would agree that such a lapse, after a specific warning that there would be no further continuances, is sufficient to warrant dismissal, in this case there are extenuating circumstances. On December 7, 2001, when the court ordered this deadline, December 31, 2001, was a regular business day of the court. Later, the court scheduled a floating holiday for December 31, 2001, closing the court and the clerk's office on that day. McColm was therefore unable to file her FAC on December 31. The next working day for the court was January 2, 2002; McColm filed her FAC on that day. While McColm could have been more diligent in investigating the court's schedule in order to file the FAC before the deadline, the court finds this lapse, in part due to the court's last minute decision to close the clerk's office, should not require dismissal. The court therefore considers the merits of defendants' motions to dismiss.
III
In a FRCP 12(b)(6) motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff. Dismissal is only appropriate when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court need not, however, accept as true mere legal conclusions "cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
Read in the light most favorable to the plaintiff, McColm's complaint alleges violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq, violation of 42 U.S.C. § 1983 and various state-law torts.
A
The ADA prohibits discrimination against persons with disabilities in four specific contexts: employment, see 42 U.S.C. § 12111 et seq, a public entity's the provision of services, programs or activities, see 42 U.S.C. § 12131 et seq, the provision of transportation to the general public, see 42 U.S.C. § 12141 et seq, and public access to services operated by private entities, see 42 U.S.C. § 12181 et seq.
In her original complaint, McColm made no allegation implicating the ADA with respect to the Balistreris. McColm now alleges that the Balistreris are employers under the ADA. McColm provides no allegations within the complaint regarding the number of employees that work for the Balistreris in order to determine whether the Balistreris meet the ADA's definition of employer. See 42 § 12111(5) (defining, in relevant part, an employer to be "a person * * * who has 15 or more employees"). McColm provides a declaration with her opposition which attempts to demonstrate that the Balistreris employ at least the "statutory number" of employees. See Pl. Opp (Doc. # 37) at 4. The Balistreris object to this evidence. See Balistreris Obj (Doc. # 42) at ¶¶ 1-2. As the motions before the court are motions to dismiss, the court does not consider McColm's declaration and therefore declines to rule on the Balistreris' objection.
The Balistreris also provide declarations and request summary judgment as an alternative disposition of their motion. See Balistreri B.R. (Doc. # 32) at 3 n2; Mark Balistreri Decl. (Doc. # 33); Regina Balistreri Decl. (Doc. # 34). As the court grants their motion to dismiss, it does not rule on this alternative ground or consider the Balistreris' declarations.
McColm provides no allegations that she is an employee of the Balistreris. On the contrary, McColm alleges that she is unemployable. FAC (Doc. # 29) at ¶ 2. Employers are required to follow the ADA with respect to their employees, not the general public. See 42 U.S.C. § 12112 (a). McColm's ADA claim against the Balistreris, therefore, fails.
While leave to amend is freely given if justice so requires, see FRCP 15(a), the court should not provide leave to amend if amendment would be futile. See Loehr v. Venture County Community College Dist, 743 F.2d 1310, 1319 (9th Cir. 1984). Here, McColm specifically alleges that she is unemployable; therefore, allowing McColm to amend her complaint to include further allegations in support of her ADA claim against the Balistreris is futile. The court DISMISSES McColm's ADA claim against the Balistreris with prejudice.
2
The city defendants also move to dismiss McColm's ADA cause of action as against them. While McColm's FAC does not specify which sections of the ADA defendants have violated, the city defendants appropriately assume that McColm asserts a claim against them under Title II of the ADA, prohibiting discrimination in the provision of services, programs or activities by a public entity. See 42 U.S.C. § 12131 et seq. To state a claim under Title II of ADA, McColm must allege:
(1) [she] is a "qualified individual with a disability";
(2) [she] was either excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and
(3) such exclusion, denial of benefits, or discrimination was by reason of [her] disability.Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d 976, 978 (9th Cir. 1997). In order to satisfy (1), McColm must allege facts sufficient to show that she has "a physical or mental impairment that substantially limits one or more major life activities;" a record of such impairment; or is regarded as having such impairment. 42 U.S.C. § 12102. In her FAC, McColm alleges a series of illnesses and disabilities that limit her ability to walk, type and sit, among other activities. FAC (Doc. # 29) at ¶ 2. At the motion to dismiss stage, these allegations are sufficient to demonstrate that she is a qualified individual with a disability.
McColm alleges that she was denied the benefits of the programs of CCSF, specifically to the Board's review of the substance of building permits. McColm contends that the Board violated the ADA by refusing to consider her requests that special conditions be placed on Mark Balistreri's building permit to accommodate her disabilities. See FAC (Doc. # 29) at ¶ 13. McColm further alleges that the Board has a policy of refusing to provide such accommodation. Id. McColm's FAC alleges that the city defendants provide the benefit of regulating the restrictions placed in building permits to the public in a discriminatory manner because they do not accommodate disabilities when determining the substance of these permits. McColm does not allege that she was denied access to the appeals process; instead, she takes issue with the outcome of the process. The ADA, however, regulates access to governmental processes, not their outcomes. See Armstrong v. Davis, 275 F.3d 849, 861-62 (9th Cir. 2001).
Thus, as McColm does not allege that the Board denied her access to the permit appeals process, McColm's ADA claim fails. Because McColm specifically alleges that she had access to and used the permit appeals process, see FAC (Doc. # 29) at ¶ 13, the court finds that allowing McColm to amend her ADA claim would be futile. The court therefore DISMISSES McColm's ADA claim with prejudice. See Loehr, 743 F.2d at 1319.
B
McColm's second federal cause of action alleges violation of 42 U.S.C. § 1983. Section 1983 creates a cause of action against a person who, acting under color of state law, violates a plaintiff's constitutional rights.
1
McColm alleges a § 1983 claim against the Balistreris. McColm once again alleges in purely conclusory language that the Balistreris acted under color of law. See FAC (Doc. # 29) at ¶ 1. McColm provides no specifics regarding how the Balistreris acted under color of state law. McColm alleges that the Balistreris are "co-conspirators" with the city defendants. See id. at ¶¶ 6-8. McColm further alleges that "[t]he Balistreri's [sic] actions were in concert with omission of the City to take any action against the offending conduct." Id. at ¶ 19. These allegations, however, are not supported by a factual basis linking the Balistreris' conduct with that of the city defendants. McColm's closest link between the Balistreris and the city defendants, that her appeal before the Board was denied in part because Sal Balistreri defamed her character, is insufficient to show an or agreement conspiracy between the Balistreris and the city defendants. McColm does not point to any factual allegations of an agreement or conspiracy. Her conclusory allegations are insufficient to plead a conspiracy claim against the Balistreris or plead that the Balistreris acted under color of law. See Clegg, 18 F.3d at 754-55. The court has provided McColm with the opportunity to amend her complaint once before; McColm still provides only conclusory allegations that the Balistreris acted under color of law. The court finds that further amendment would be futile and dismisses McColm's § 1983 action against the Balistreris with prejudice.
2
The city defendants also move to dismiss the § 1983 claim against them. The city defendants argue that McColm has not alleged a violation of her constitutional rights. McColm's complaint states that defendants denied her equal protection of the laws. See FAC (Doc. # 29) at ¶ 1.
In order to plead a violation of the equal protection clause, McColm must allege both discriminatory conduct or effect and discriminatory intent. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Conclusory allegations by themselves do not establish an equal protection violation without proof of invidious discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252, 265 (1977). McColm fails to plead facts sufficient to infer discriminatory intent. In addition, McColm fails to pleade facts that, if true, would demonstrate that McColm was treated differently from other appellants before the Board. To the extent McColm's § 1983 claim relies on violation of equal protection, it fails.
In her opposition, McColm argues:
Modifications are available for able bodied individuals for reasons other than disability to obtain the benefits of limited time and hours; yet, disability is not one of the recognized reasons for granting the benefits of a successful appeal for same. Thus, plaintiff was denied equal protection.
Pl. Opp (Doc. # 37) at 4. There are no factual allegations in McColm's FAC to support her statement regarding what modifications are available. Such allegations, if pled, might support McColm's allegation of a discriminatory effect, but would still not provide support for McColm's allegation of discriminatory intent. The court has given McColm the opportunity to allege facts sufficient to create an inference of discriminatory intent; McColm has once again failed to do so. The court therefore DISMISSES McColm's § 1983 claim against the city defendants with prejudice.
III
City defendants also move to strike McColm's request for punitive damages against them. McColm concedes that punitive damages against the city defendants are inappropriate. See Pl. Opp (Doc. # 38) at 4. The court therefore STRIKES the prayer for punitive damages from McColm's FAC with prejudice.
IV
Finally, the court turns to any state law claims that may be stated in the complaint. McColm's FAC states that she "invokes the pendent [sic] jurisdiction of this Court to hear and decide claims arising under state law." FAC (Doc. # 29) at ¶ 1. McColm alleges causes of action under "California Civil Codes 51, 52 et seq; California State Constitution, Defamation and False Light, Intentional/Negligent Infliction of Emotional Distress, Interference with Prospective Advantage, Destruction of Property, Nuisance, Trespass [and] Assault." FAC (Doc. # 29) at ¶ 27.
As the federal law claims against all defendants have been dismissed, the court declines pendant jurisdiction over any state claims. McColm has been designated a vexatious litigant in California state court. See Request for Judicial Notice (Doc. # 32), Ext D. In order to file an action in state court, McColm must obtain leave of court and furnish a bond before proceeding. See id. at 2. The court finds it inappropriate to allow McColm to maneuver around this state court procedure by requesting supplemental jurisdiction over her state law claims. The court therefore declines supplemental jurisdiction and DISMISSES any state law claims without prejudice.
V
In conclusion, the court GRANTS defendants Mark, Regina and Sal Balistreri's motions to dismiss (Doc.'s ## 32, 36) and GRANTS the city defendants' motion to dismiss (Doc. # 30). All federal claims are DISMISSED with prejudice; all state law claims are DISMISSED without prejudice. Finally, the court GRANTS the city defendants' motion to strike the prayer for punitive damages with prejudice.
The clerk is directed to enter judgment for defendants and against plaintiff, to close the file and to terminate all pending motions.
IT IS SO ORDERED.
JUDGMENT [FRCP 58]
This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendants and against plaintiff Patricia McColm.