1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 TANEISHA MERRITT-ROJAS, et al., Case No. 23-cv-04383-BLF

8 Plaintiffs,

ORDER SCREENING FIRST

9 v. AMENDED COMPLAINT AND

DISMISSING WITH LEAVE TO

10 LIFE MOVES, AMEND 11 Defendant. [Re: ECF No. 7, 10]

12 13 Before the Court is Plaintiffs Taneisha Merritt-Rojas and Robert Rojas’s First Amended 14 Complaint. ECF No. 10 (“FAC”). On September 6, 2023, the magistrate judge granted Merritt- 15 Rojas’s application to proceed in forma pauperis. ECF No. 5. After reviewing the Amended 16 Complaint, the Court DISMISSES the Amended Complaint with leave to amend. 17 I. BACKGROUND 18 Merritt-Rojas is a resident in the Life Moves Emergency Interim Housing program 19 (“EIH”). FAC ¶ 1. Rojas is Merritt-Rojas’s spouse, who Life Moves evicted from the EIH 20 program. Id. ¶ 18. Plaintiffs generally allege that Life Moves has failed to adequately manage its 21 housing program. Among other things, Plaintiffs allege that Life Moves illegally evicted Rojas 22 and prevented him from contacting or visiting Merritt-Rojas, failed to implement sanitation and 23 security measures, searched Plaintiffs’ housing unit without their consent, and stole Plaintiffs’ 24 property. Id. ¶¶ 3–21. 25 On August 8, 2023, Merritt-Rojas filed her initial complaint, bringing ten causes of 26 action—eight claims alleged constitutional violations pursuant to 42 U.S.C. § 1983, one claim 27 alleged violations of the Americans with Disabilities Act (“ADA”), and one claim alleged 1 2023, the magistrate judge granted Merritt-Rojas’s application for in forma pauperis status and 2 screened her complaint. ECF No. 5. The magistrate judge dismissed Merritt-Rojas’s initial 3 complaint, finding that she failed to adequately allege how Life Moves is a state actor to state a 4 claim under §1983, she failed to allege how Life Moves if a public entity and adequately allege 5 her disability to state a claim under Title II of the ADA, and she failed to adequately allege her 6 disability and the programs or services she was denied to state a claim under California 7 Government Code § 11135. ECF No. 5 at 3–4. The magistrate judge granted Merritt-Rojas leave 8 to amend. Id. at 5. After Merritt-Rojas failed to amend her complaint in time and failed to 9 respond to an order to show cause why the case should not be dismissed for failure to prosecute, 10 issued a report and recommendation that the case be dismissed without prejudice for failure to 11 prosecute. ECF No. 7. 12 On November 20, 2023, Plaintiffs filed their First Amended Complaint. The First 13 Amended Complaint adds Rojas as a plaintiff and adds more specific factual allegations, including 14 descriptions of the EIH facility and specific instances in which Plaintiffs allege Life Moves 15 violated their rights. See FAC ¶¶ 1–21. However, aside from minor formatting changes, the 16 remainder of the First Amended Complaint is identical to the initial complaint. Compare FAC 17 ¶¶ 22–68, with Compl. ¶¶ 16–65. 18 II. LEGAL STANDARD 19 A complaint filed by any person proceeding in forma pauperis pursuant to 28 U.S.C. 20 § 1915(a) is subject to mandatory and sua sponte review and dismissal by the Court if it is 21 frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary 22 relief against a defendant who is immune from relief. 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 23 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc). 24 When determining whether a claim has been stated, the Court accepts as true all well-pled 25 factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP 26 Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a complaint need not contain 27 detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a 1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it 2 “allows the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. The Court’s review is limited to the face of the complaint and matters judicially 4 noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). 5 In deciding whether to grant leave to amend, the Court must consider the factors set forth 6 by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the 7 Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003). A district 8 court ordinarily must grant leave to amend unless one or more of the Foman factors is present: 9 (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by 10 amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence 11 Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries 12 the greatest weight.” Id. However, a strong showing with respect to one of the other factors may 13 warrant denial of leave to amend. Id. 14 III. DISCUSSION 15 As an initial matter, because Plaintiffs filed an amended complaint, the magistrate judge’s 16 report and recommendation is moot. See ECF No. 7. Therefore, the Court will terminate the 17 report and recommendation and screen the First Amended Complaint. 18 A. Section 1983 Claims 19 Plaintiffs’ First Amended Complaint alleges that Life Moves violated their First, Fourth, 20 Eighth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. FAC ¶¶ 27–56. To state 21 a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right 22 secured by the Constitution or laws of the United States was violated, and (2) that the alleged 23 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 24 U.S. 42, 48 (1988). Whether a person acts under the color of state law is analyzed in two-step 25 framework: First, the Court must determine first whether the alleged constitutional violation was 26 “caused by the ‘exercise of some right or privilege created by the State or by a rule of conduct 27 imposed by the State or by a person for whom the State is responsible.’” O’Handley v. Weber, 62 1 (1982)). Second, the Court must determine “whether ‘the party charged with the deprivation [is] a 2 person who may fairly be said to be a state actor.’” Id. (alteration in original) (quoting Lugar, 457 3 U.S. at 937). 4 The First Amended Complaint fails at both steps of the state action framework. The First 5 Amended Complaint’s allegations about Life Moves, which are identical to the allegations in the 6 initial complaint, offer only conclusory allegations to support their claim that Life Moves is a state 7 actor. Compare FAC ¶ 26 (“Defendant, Life Moves, is a public entity, dully [sic] organized and 8 existing under the laws of the State of California.”), with Compl. ¶ 20 (“Defendant, Life Moves, is 9 a public entity dully [sic] organized and existing under the laws of the State of California.”). 10 Aside from this allegation, Plaintiffs offer no facts to establish that the alleged constitutional 11 violations were the result of a state-created right, state-imposed rule, or that the state is responsible 12 for Life Moves. Similarly, Plaintiffs offer no facts to establish that Life Moves could fairly be 13 said to be a state actor. Accordingly, the Court dismisses Plaintiffs’ First Amended Complaint 14 with respect to their § 1983 claims because Plaintiffs fail to state a claim. 15 B. ADA Claim 16 Plaintiffs’ First Amended Complaint alleges that Life Moves violated Title II of the ADA 17 and its implementing regulations. Title II provides that “no qualified individual with a disability 18 shall, by reason of such disability, be excluded from participation in or be denied the benefits of 19 the services, programs, or activities of a public entity, or be subjected to discrimination by any 20 such entity.” 42 U.S.C. § 12132. Title II protects “a qualified individual with a disability.” Id. In 21 the context of the ADA, the term “disability” means: “(A) a physical or mental impairment that 22 substantially limits one or more of the major life activities of the person; (B) having a record of 23 such an impairment; or (C) being regarded as having such an impairment.” Id. § 12102(1). For 24 purposes of § 12102(a), “major life activities include, but are not limited to, caring for oneself, 25 performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, 26 speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. 27 § 12102(2)(A). A “public entity” means “any State or local government” or “any department, 1 Id. § 12131(1)(A), (B). 2 In order to obtain relief under the ADA, a plaintiff must show (1) that she is disabled 3 within the meaning of the act, (2) that she is “otherwise qualified” for the services sought, (3) that 4 she was excluded from the services sought solely by reason of his disability, and (4) that the 5 program in question is a public entity. See, e.g., Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 6 1045 (9th Cir. 1999). 7 The First Amended Complaint fails to state a claim for relief under Title II of the ADA. 8 First, the First Amended Complaint recites the definition of a disability under § 12102(1) and 9 represents that Merritt-Rojas qualifies, but it does not allege any facts that describe Merritt-Rojas’s 10 disability. See FAC ¶¶ 25, 59. Second, the First Amended Complaint makes the conclusory 11 allegation that “Defendant is a public entity as defined under 42 U.S.C. § 12131(1)(A),” FAC 12 ¶ 59, but it does not allege any facts that would show that Life Moves is a state or local 13 government or a department, agency, special district, or instrumentality of a state or local 14 government. Accordingly, the Court dismisses Plaintiffs’ First Amended Complaint with respect 15 to their ADA claim because Plaintiffs fail to state a claim. 16 C. State Law Claim 17 Plaintiffs’ First Amended Complaint alleges that Life Moves violated Cal. Gov’t Code 18 § 11135 by discriminating against Merritt-Rojas on the basis of her disability. FAC ¶¶ 62–66. 19 Section 111135 provides that:

20 No person in the State of California shall, on the basis of . . . [a] disability . . . be unlawfully denied full and equal access to the 21 benefits of, or be unlawfully subject to discrimination under, any program or activity that is conducted, operated, or administered by 22 the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. 23 24 “Section 11135 is . . . coextensive with the ADA because it incorporates the protections and 25 prohibitions of the ADA and its implementing regulations.” Bassilios v. City of Torrance, CA, 26 166 F.Supp.3d 1061, 1084 (C.D. Cal. 2015). 27 The First Amended Complaint fails to state a claim under § 11135 for similar reasons for 1 describe Merritt-Rojas’s disability, to describe how the program or activity from which Merritt- 2 Rojas experienced discrimination, or to describe how that program or activity is connected to the 3 state . Accordingly, the Court dismisses Plaintiffs’ First Amended Complaint with respect to their 4 § 11135 claim because Plaintiffs fail to state a claim. 5 D. Leave to Amend 6 “The Court should freely give leave [to amend pleadings] when justice so requires.” Fed. 7 R. Civ. P. 15(a). The Court has considered the Foman factors and will grant Plaintiffs leave to 8 amend their complaint to cure the deficiencies identified in this Order. Plaintiffs must allege 9 specific facts that would describe Merritt-Rojas’s disability, show how Life Moves is a state actor 10 for purposes of § 1983, and show how Life Moves is a public entity for Title II of the ADA and 11 Cal. Gov’t Code § 11135. 12 The Court reminds Plaintiffs that they may contact the Federal Pro Se Program for 13 assistance. The Federal Pro Se Program is a free program that offers limited legal services and 14 advice to parties who are representing themselves. The Federal Pro Se Program has an office at the 15 location listed below. Help is provided by appointment and on a drop-in basis. Parties may make 16 appointments by calling the program’s staff attorney, Haohao Song, at 408-297-1480. Additional 17 information about the Federal Pro Se Program is available at http://cand.uscourts.gov/helpcentersj. 18 Federal Pro Se Program 19 United States Courthouse 280 South 1st Street 20 2nd Floor, Room 2070 San Jose, CA 95113 21 Monday to Thursday 9:00 am – 4:00 pm 22 // 23 // 24 // 25 // 26 // 27 //

IV. ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. The magistrate judge’s report and recommendation is TERMINATED as moot. 3 2. Plaintiff Taneisha Merritt-Rojas’s First Amended Complaint (ECF No. 10) is 4 DISMISSED with leave to amend. Merritt-Rojas must file an amended complaint curing the 5 deficiencies identified in this Order no later than January 3, 2024. 6 7 Dated: November 27, 2023

9 BETH LABSON FREEMAN 10 United States District Judge 11 12

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