1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 TIMOTHY L. WHITING, Case No. 5:24-cv-01032-JWH-RAO

11 Plaintiff,

ORDER ACCEPTING REPORT

12 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

13 CALIFORNIA CIVIL RIGHTS JUDGE DEPARTMENT, et al., 14 Defendants. 15

16

17 18 19 20 21 22 23 24 25 26 27 28 1 Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiff’s Second 2 Amended Complaint, ECF No. 20, the Magistrate Judge’s Report and 3 Recommendation issued April 23, 2025 (“Report”), ECF No. 22, Plaintiff’s 4 Objections to the Report, ECF No. 24, and all of the other records and files herein. 5 The Court has further engaged in a de novo review of those portions of the Report 6 to which Plaintiff has objected and does not find Plaintiff’s objections persuasive. 7 In this action, Plaintiff alleges that Defendants did not properly investigate 8 his complaint that his neighboring tenants attempted to drive out Plaintiff, who is 9 African American, from their building complex, whose tenants are mostly Latino. 10 (ECF No. 20 at 5.) The Report recommends the dismissal of Plaintiff’s Second 11 Amended Complaint for failure to state a claim on which relief may be granted and 12 without further leave to amend. (ECF No. 22.) Plaintiff’s objections to the Report 13 do not merit any change to the Report’s findings or recommendations. 14 Plaintiff objects that the Report required him to prove discriminatory intent 15 by “direct evidence.” (ECF No. 24 at 2.) On the contrary, the Report did not 16 require evidence but only reviewed the adequacy of Plaintiff’s allegations. Plaintiff 17 failed to state an equal protection claim because his only non-conclusory allegations 18 were that the investigating officer knew Plaintiff is African American and was the 19 only African American tenant in his apartment building and that the individuals 20 Plaintiff complained of in his complaint were Hispanic or Latino tenants. (ECF 21 No. 20 at 5.) The Court agrees with the Report that these allegations are 22 insufficient to state a plausible claim of racial discrimination. See also Ray v. 23 American Airlines, Inc., 755 F. Supp. 3d 1277, 1281 (C.D. Cal. 2024) (“The mere 24 intersection of plaintiff’s race and his alleged mistreatment by a defendant, in other 25 words, is not enough to ‘nudge[ ]’ plaintiff’s claim of racial discrimination ‘across 26 the line from conceivable to plausible.’”) (quoting Bell Atlantic Corp. v. Twombly, 27 550 U.S. 544, 570 (2007)). 28 1 Plaintiff objects that he stated a claim under a “hypothetical comparator” 2 theory. (ECF No. 24 at 3.) On the contrary, the Second Amended Complaint failed 3 to provide non-speculative or non-conclusory allegations that any similarly situated, 4 non-African American complainants were treated better than Plaintiff. (ECF 5 No. 20 at 6-7.) 6 Plaintiff objects that he stated a claim based on an unwritten policy. (ECF 7 No. 24 at 3.) On the contrary, the Second Amended Complaint failed to allege any 8 non-conclusory facts to support a plausible inference of the existence of an 9 unwritten policy. (ECF No. 20 at 2, 7.) 10 Plaintiff objects that he showed specific and actual instances of different 11 treatment in the form of the agency’s normal practices. (ECF No. 24 at 3.) On the 12 contrary, the Second Amended Complaint failed to allege any non-conclusory facts 13 supporting a departure from the agency’s normal practices. (ECF No. 20 at 7.) 14 Plaintiff objects that he alleged the officer made a conscious decision to 15 depart from normal practice in Plaintiff’s case. (ECF No. 24 at 3-4.) On the 16 contrary, the Second Amended Complaint failed to allege any facts supporting any 17 inference about the officer’s conscious intent or motive in reviewing his case. 18 (ECF No. 20 at 6.) 19 Plaintiff objects that he stated an intentional discrimination claim under 42 20 U.S.C. § 1981. (ECF No. 24 at 4.) But Plaintiff did not plausibly allege intentional 21 discrimination on his account of race. Thus, as the Report found, “Plaintiff’s claim 22 for racial discrimination fails for the same reasons as his Section 1983 equal 23 protection claim.” (ECF No. 22 at 9.) 24 Finally, Plaintiff objects that he should be granted leave to file a Third 25 Amended Complaint. (ECF No. 24 at 4.) Because Plaintiff “had previously been 26 granted two chances to amend but still failed to state a claim, ‘the district court's 27 discretion to deny leave to amend is particularly broad.’” Espy v. J2 Global, Inc., 28 99 F.4th 527, 542 (9th Cir. 2024) (quoting Zucco Partners, LLC v. Digimarc Corp., 1 | 552 F.3d 981, 1007 (9th Cir. 2009)). The Court agrees with the Report that further 2 || leave to amend is not warranted. See In re Cloudera, Inc., 121 F.4th 1180, 1190 3 || (9th Cir. 2024) (dismissal of Second Amended Complaint without further leave to 4 || amend was proper where “the district court offered a detailed explanation of the 5 || complaint’s deficiencies and how to correct them,” but Plaintiff “did not correct the 6 || deficiencies” and “offer[ed] no new allegations or arguments”). 7 For those reasons, the Court hereby ORDERS as follows: 8 l. The findings, conclusions, and recommendations of the Magistrate 9 || Judge are ACCEPTED and ADOPTED. 10 2. Plaintiffs claims asserted under 42 U.S.C. §§ 1981 and 1983 are 11 | DISMISSED with prejudice. 12 3. The Court declines to exercise supplemental jurisdiction over 13 || Plaintiff's state law claims. Those claims are DISMISSED without prejudice: 14 || Plaintiff may pursue those claims in state court. 15 4. This action is DISMISSED without leave to amend. 16 IT IS SO ORDERED.

17 YG 18 | DATED: May 19, 2025 □ □□□ 19 wv STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28