Opinion
3:20-cv-00701-YY
09-23-2021
BRANDON MOYE, SR., Plaintiff, v. TRI-MET, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
Pro se plaintiff Brandon Moye, Sr. brings this action for monetary relief against defendant TriMet, alleging claims of discrimination under federal law arising out of a TriMet bus driver's failure to stop for him while he stood waiting at a bus stop. Am. Compl. 1, ECF 13. Plaintiff alleges violations of the equal protection clause of the Fourteenth Amendment and seeks $2,000,000 in damages for “putting my life in danger.” Id.
Defendant has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) because “plaintiff fails to make factual allegations constituting a claim.” Mot. 2, ECF 19. For the reasons discussed below, defendant's motion should be GRANTED.
This motion is suitable for decision without oral argument pursuant to LR 7-1(d)(1).
I. Pro Se and Rule 12(b)(6) Standards
When a plaintiff is proceeding Pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (recognizing that federal courts hold a Pro se litigant's pleadings “to less stringent standards than formal pleadings drafted by lawyers”) (citation omitted). Before dismissing a Pro se civil rights complaint for failure to state a claim, the court must supply the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623-24 (9th Cir. 1988); Eldridge, 832 F.2d at 1136. A Pro se litigant will be given leave to amend the complaint unless it is clear that the deficiencies cannot be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Karim-Panahi, 839 F.2d at 623.
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).
A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept all well-pleaded material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
II. Discussion
Plaintiff does not specify a statutory basis for his constitutional claims against defendant, but 42 U.S.C. § 1983 is the proper basis for Fourteenth Amendment claims. Defendant argues that plaintiff's Section 1983 claim should be dismissed because plaintiff “has made no allegations that this incident caused him any injury or harm[, ]” and, if an injury could be inferred, plaintiff “fails to allege that TriMet, through any failure of policy or training, is responsible for Plaintiff's injury.” Mot. 3, ECF 19.
A plaintiff does not have a cause of action directly under the United States Constitution. Rather, a plaintiff must bring a constitutional claim against a public entity under 42 U.S.C. § 1983, which “creates a private right of action for any party that has been deprived of any ‘rights, privileges, or immunities secured by the Constitution and laws' by any person [acting] ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.'” Clark v. Nevada, No. 2:21-CV-00686-GM-EJY, 2021 WL 2346005, at *2 (D. Nev. June 8, 2021) (citing 42 U.S.C. § 1983).
The equal protection clause of the Fourteenth Amendment guarantees that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The essence of that guarantee is that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). “‘To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class[, ]'” Sampson v. Cty. of Los Angeles by & through Los Angeles Cty. Dep't of Child. & Fam. Servs., 974 F.3d 1012, 1022 (9th Cir. 2020) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that the plaintiff “has been intentionally treated differently from others similarly situated and that there is no rational relationship for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Under Section 1983, there is no respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676. However, “[l]ocal governing bodies . . . can be sued directly under §1983” where the alleged constitutional violation “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658, 690 (1978)). To establish Monell liability, “plaintiffs must allege that: (1) they were deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiffs' constitutional rights; and (4) the policy, custom, or practice was the ‘moving force' behind the constitutional violation.” Cantu v. City of Portland, No. 3:19-cv-01606-SB, 2020 WL 2952972, at *3 (D. Or. June 3, 2020) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). If no constitutional violation occurred, then a municipal liability claim necessarily fails. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding that a Monell claim cannot survive without an underlying constitutional violation).
Here, the court has given plaintiff the opportunity to amend his complaint three times. See Resp. Order Show Cause, ECF 6; Am. Compl., ECF 9; Am. Compl., ECF 13. Yet, his latest amended complaint contains no allegation of injury or harm. Plaintiff alleges a single discriminatory act-that a TriMet bus driver did not stop to pick him up-and states that the “Driver intentionally passed myself up at Bus Stop nearly killing me as I waved frantically trying to get Driver to stop.” Am. Compl., ECF 13. Without more, it is not possible to infer an injury from plaintiff's descriptions of the event, and, without such an allegation or inference, plaintiff cannot state a claim for relief under Section 1983. See Olguin v. Gastelo, No. 220CV06048PAMAA, 2020 WL 6203572, at *6 (C.D. Cal. Oct. 22, 2020) (finding the plaintiff failed to state a Fourteenth Amendment claim where he “fail[ed] to allege how the statement caused [him] to suffer any harm at all, let alone a constitutionally-protected liberty interest”); Moseley v. Dep't of Soc. & Health Servs., No. 317CV05427BHSJRC, 2020 WL 2497756, at *6 (W.D. Wash. Apr. 7, 2020), report and recommendation adopted sub nom. Moseley v. DSHS, 2020 WL 2494702 (W.D. Wash. May 14, 2020) (noting the plaintiff's failure to “allege facts demonstrating what, if any, injury resulted” from the defendant's actions and dismissing the Section 1983 claim).
In his response to the motion to dismiss, plaintiff asserts that he is disabled and suffered pain because he “had to stand out there for another 30 mins with no where to sit” while waiting for the next bus. Resp. 4, ECF 21. But even if plaintiff were granted leave to amend his complaint to allege such harm resulting from the bus driver's actions, he has not shown or alleged that the bus driver acted with discriminatory purpose or pursuant to a discriminatory policy maintained by defendant. In prior pleadings, plaintiff identifies himself as a “disabled Black man, ” see Resp. Order Show Cause, ECF 6, but he makes no allegation in his most recent amended complaint regarding improper animus based on race or ability. See Am. Compl., ECF 13. Plaintiff seems to suggest he was treated differently than others similarly situated when he alleges that the TriMet bus driver had “no trouble . . . picking up a Mexican Lady & her daughter” one stop before his, but that statement alone does not show “that the [bus driver] acted with discriminatory purpose.” Iqbal, 556 U.S. at 676.
Further, as defendant argues, even if plaintiff had alleged facts sufficient to support a constitutional violation, “Plaintiff only makes allegations regarding the actions of one individual employee, rather than allegations against TriMet itself.” Mot. 4, ECF 19. Indeed, nowhere in plaintiff's amended complaint does he claim that the bus driver was acting pursuant to any discriminatory policy or practice. Without any assertion or suggestion that the bus driver violated his rights pursuant to unlawful policy that was maintained or sanctioned by defendant, plaintiff cannot state a Section 1983 claim against defendant. See Dickerson v. City of Portland, No. 3:19-CV-01126-SB, 2020 WL 7391267, at *1 (D. Or. Dec. 16, 2020) (noting that a “plaintiff must show that a municipal custom or policy caused the violation of his rights” and finding insufficient evidence that “an unlawful policy or practice exists”).
In sum, even accepting plaintiff's allegations as true and viewing them in the light most favorable to him, plaintiff simply fails to allege sufficient facts to show that defendant violated his Fourteenth Amendment rights when the bus driver failed to pick him up. Despite guidance from the court regarding the elements of a Fourteenth Amendment claim and having three opportunities to ‘cure' defects in prior pleadings, plaintiff remains unable to assert “a cognizable legal theory” to support his claim. Yee, 780 F.3d at 935. It is therefore appropriate to dismiss plaintiff's Section 1983 claim for failure to state a claim. See B Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (holding that dismissal is proper “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory”); see also Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (“Although a Pro se litigant . . . may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.”).
In reaching this conclusion, the court also observes that, in addition to giving plaintiff three opportunities to amend the complaint in this case, plaintiff has filed at least 18 other cases in this court, demonstrating he has experience with the pleading requirements necessary to state a claim for relief.
RECOMMENDATIONS
Defendant's motion to dismiss (ECF 19) should be GRANTED, and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, October 21, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.