1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL NDIZEYE, Case No.: 3:24-cv-01768-JES-KSC

12 Plaintiff,

ORDER:

13 v. 1) GRANTING MOTION TO 14 CITY OF SAN DIEGO,

PROCEED IN FORMA PAUPERIS;

15 Defendant. 2) DISMISSING COMPLAINT 16

PURSUANT TO SCREENING UNDER

17 28 U.S.C. § 1915(e)

18 3) DENYING AS MOOT MOTION 19 FOR LEAVE TO ELECTRONICALLY

FILE DOCUMENTS AS PRO SE

20

LITIGANT

21 4) DENYING AS MOOT REQUEST 22

FOR JUDICIAL NOTICE

23 24 [ECF Nos. 6, 8, 9] 25 26 // 27 // 28 // 1 Plaintiff Daniel Ndizeye (“Ndizeye” or “Plaintiff”), proceeding pro se, filed a 2 complaint alleging violations of various civil rights arising from the alleged failure of 3 Defendant City of San Diego (“City”) to adequately maintain safe, accessible, and non- 4 discriminatory public infrastructure. ECF No. 1. Ndizeye also filed a Motion to Proceed In 5 Forma Pauperis (“IFP”), (ECF No. 2), which this Court denied without prejudice. ECF 6 No. 3. Ndizeye subsequently renewed the IFP motion. ECF No. 6. Ndizeye also filed a 7 Motion for Leave to Electronically File Documents as a Pro Se Litigant. ECF No. 8. 8 Finally, Ndizeye submitted a request for judicial notice of several exhibits in support of his 9 Complaint. ECF No. 9. Upon review, the Court GRANTS Plaintiff’s IFP request, 10 DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint under 28 U.S.C. § 1915(e), 11 and DENIES AS MOOT both the Motion for Leave to Electronically File Documents and 12 the Request for Judicial Notice. 13 I. BACKGROUND 14 Ndizeye resides at 711 51st Street, located in the City of San Diego, California. ECF 15 No. 1 at 1. He alleges the City has neglected to properly maintain the roads and sidewalks 16 in his neighborhood, rendering them unsafe and inaccessible. Id. Alleged problems include 17 potholes and fissures, insufficient width and space for parking, lack of proper signage, 18 sidewalk disrepair, waste accumulation, and other related issues. Id. at 7-10. Ndizeye 19 alleges these problems have caused him emotional distress, physical injuries, property 20 damage, and financial harm. Id. at 10-11. Ndizeye further alleges the City’s neglect 21 disproportionately affects minority and low-income residents that predominate the 22 neighborhood. Id. 23 Ndizeye alleges several causes of action against the City, including violations of (1) 24 the Equal Protection Clause of the Fourteenth Amendment, (2) Title II of the Americans 25 with Disabilities Act (“ADA”), (3) Section 504 of the Rehabilitation Act of 1973, (4) Title 26 VI of the Civil Rights Act of 1964, and (5) Federal Highway Administration Guidelines 27 and Standards. Id. at 1. 28 1 II. IFP APPLICATION 2 Parties instituting a civil action must pay a filing fee of $405 unless they are granted 3 leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). A party need not “be absolutely 4 destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 5 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty with some 6 particularity, definiteness, and certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 7 Cir. 2015) (internal quotation marks and citation omitted). To that end, “[a]n affidavit in 8 support of an IFP application is sufficient where it alleges that the affiant cannot pay the 9 court costs and still afford the necessities of life.” Id. “But, the same even-handed care must 10 be employed to assure that federal funds are not squandered to underwrite, at public 11 expense, either frivolous claims or the remonstrances of a suitor who is financially able, in 12 whole or in material part, to pull his own oar.” Temple v. Ellerthorp, 586 F.Supp. 848, 850 13 (D.R.I. 1984). 14 Ndizeye is a full-time student whose primary source of income is financial aid used 15 to cover educational and living expenses. ECF No. 6 at 2. After subtracting tuition fees, he 16 receives approximately $763 per month in financial aid. ECF No. 7 at 1. Ndizeye is 17 unemployed and has $1,053.84 in his checking account. Id. at 2. His monthly expenses 18 include food, clothing, laundry, transportation, and recreation, totaling $1,176.32. Id. at 4- 19 5. Of this amount, $896 per month is used for essential expenses. ECF No. 6 at 3. 20 Upon review of Plaintiff’s IFP application, the Court finds that Plaintiff has 21 sufficiently shown that he is unable to pay the fees associated with commencing this 22 lawsuit. Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP. 23 III. SCREENING UNDER 28 U.S.C. § 1915(a) 24 A complaint filed pursuant to the IFP provisions of 28 U.S.C. § 1915(a) is subject to 25 a mandatory and sua sponte review by the Court. Lopez v. Smith, 203 F.3d 1122, 1127 (9th 26 Cir. 2000). The Court must dismiss the complaint if it is frivolous or malicious, fails to 27 state a claim upon which relief may be granted, or seeks monetary relief from a defendant 28 immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 1 A complaint must contain a “short and plain statement of the claim showing that the 2 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations 6 are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal- 7 Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 8 omitted). 9 To survive screening, Plaintiff's claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is 11 liable for the alleged misconduct. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 12 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is 13 not sufficient, and mere consistency with liability falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 15 Plaintiff alleges several causes of action against the City arising from the City’s 16 alleged failure to properly maintain the roads and sidewalks in his neighborhood. The Court 17 addresses each in turn. 18 A. Equal Protection Clause of the Fourteenth Amendment 19 The Equal Protection Clause of the Fourteenth Amendment prohibits a state from 20 denying a person within its jurisdiction equal protection of the laws, “which is essentially 21 a direction that all persons similarly situated should be treated alike.” Lee v. City of Los 22 Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (internal quotations and citations omitted). “The 23 central inquiry in an Equal Protection Clause claim is whether a government action was 24 motivated by a discriminatory purpose.” Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 25 2022). The alleged discriminatory purpose must be “against the plaintiff based upon 26 membership in a protected class.” Lee, 250 F.3d at 686 (internal quotations and citations 27 omitted). Ndizeye alleges the City violated his Fourteenth Amendment rights “by failing 28 to maintain the roadways and sidewalks” in his neighborhood, “while adequately 1 maintaining similar infrastructure.” ECF No. 1 at 12. Ndizeye concludes this demonstrates 2 the City has “engaged in discriminatory practices that disproportionately affect residents 3 of 711 51st Street,” constituting “intentional, . . . differential treatment of individuals from 4 others similarly situated.” Id. Ndizeye does not allege membership in a protected class, nor 5 does he allege a discriminatory purpose behind the City’s actions or inactions. Thus, the 6 Equal Protection claim fails. 7 B. Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 8 “Title II of the ADA prohibits public entities from discriminating on the basis of 9 disability,” and “Section 504 similarly prohibits disability discrimination by recipients of 10 federal funds.” Payan v. Los Angeles Community College District, 11 F.4th 729, 737 (9th 11 Cir. 2021). To state a claim for violation of Title II or Section 504, a plaintiff must first 12 show that he has a qualifying disability. Id. Ndizeye does not allege any disability, nor does 13 he allege discrimination due to disability. Thus, the Title II and Section 504 claims fail. 14 C. Title VI of the Civil Rights Act of 1964 15 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits discrimination 16 based on race, color, or national origin in programs and activities receiving federal financial 17 assistance. Further, Title VI prevents “only intentional discrimination, not disparate impact 18 discrimination.” Payan, 11 F.4th at 736 (citing Alexander v. Sandoval, 532 U.S. 275, 280- 19 81 (2001)). Ndizeye alleges the City “has engaged in discriminatory practices by failing to 20 maintain the infrastructure in Plaintiff’s predominantly minority neighborhood.” ECF No. 21 1 at 12. Ndizeye does not allege intentional discrimination, nor does he allege such 22 intentional discrimination is based on race, color, or national origin. Thus, the Title VI 23 claim fails. 24 D. Federal Highway Administration Guidelines and Standards 25 The federal Manual on Uniform Traffic Control Devices (“MUTCD”) “is not a 26 regulation issued pursuant to the Rehabilitation Act [of 1973].” Oliver v. Ralphs Grocery 27 Co., 654 F.3d 903, 910 (9th Cir. 2011). Ndizeye alleges the City failed to comply with the 28 1 ||] MUTCD, in violation of Section 504 of the Rehabilitation Act. ECF No. | at 14. This 2 || allegation directly misstates the law. Thus, the claim fails. 3 All of Plaintiffs claims fail to state a claim upon which relief may be granted. 4 || Therefore, the Court DISMISSES the Complaint pursuant to 28 U.S.C. § 1915(a). 5 IV. CONCLUSION 6 For the reasons set forth above, the Court GRANTS Plaintiff's Motion to Proceed 7 but DISMISSES the Complaint pursuant to 28 U.S.C. § 1915(a) for failure to state a 8 ||claim upon which relief may be granted. The Court DENIES AS MOOT □□□□□□□□□□□ 9 Motion for Leave to Electronically File Documents and the Request for Judicial Notice. 10 || Plaintiff shall have until February 14, 2024, to file an amended complaint if he wishes to 11 || proceed with the case. Failure to do so will result in dismissal of this case. 12 IT IS SO ORDERED. 13 ||Dated: January 17, 2025 14 Sun, 15 Honorable James E. Simmons Jr. 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28