1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TODD WHITE, on behalf of himself, and Case No.: 17cv1416-JAH (LL) as proposed guardian ad litem for JAMES 12 WHITE, an individual ORDER: 13 Plaintiffs, 1. GRANTING PLAINTIFF TODD 14 v. WHITE’S MOTION FOR LEAVE TO 15 PROCEED IN FORMA PAUPERIS SAN DIEGO SUNRISE [DOC. NO. 4]; AND 16 MANAGEMENT COMPANY, a

California corporation; NICKIE WHITE, 17 2. DISMISSING THE COMPLAINT an individual; SILVIA CHAIREZ, an PURSUANT TO

individual; and DOES 1-100 1915(e)(2)(B)(ii) 19 Defendants. 20

21 This matter comes before the Court on motion for leave to proceed in forma 22 pauperis. On September 1, 2017, the Court received the First Amended Complaint 23 (“FAC”) signed by Todd White, a non-attorney, suing on behalf of himself and as a 24 proposed guardian ad litem for his disabled father, James White, (hereinafter “Plaintiffs”) 25 against Defendants San Diego Sunrise Management, Nickie White, Silvia Chairez, and 26 Does 1-100 (collectively, “Defendants”). See Doc. No. 5. Todd White alleges Defendants 27 violated specific sections of the Fair Housing Act (“FHA”) and the Americans with 28 Disabilities Act (“ADA”) and requests to proceed on behalf of himself and his father. 1 Todd White also filed a motion for leave to proceed in forma pauperis (“IFP”) on 2 behalf of himself, pursuant to

(a). See Doc. No. 2. After careful review 3 of the record and for the reasons set forth below, the Court (1) GRANTS Plaintiff’s motion 4 for leave to proceed IFP, [doc. no. 2]; and (2) DISMISSES the FAC [doc. no. 1], as to 5 Plaintiff Todd White, without prejudice for failure to state a claim for relief and DENIES 6 Todd White’s request to proceed on Plaintiff James White’s behalf. 7 I. Plaintiff Todd White’s IFP Motion 8 All parties instituting any civil action, suit or proceeding in a district court of the 9 United States, except an application for writ of habeas corpus, must pay a filing fee of 10 $350. See

(a). The action may proceed despite a plaintiff’s failure to 11 prepay the entire fee only if he is granted leave to proceed IFP pursuant to

1915(a). See Andrews v. Cervantes,

, 1051 (9th Cir. 2007); Rodriguez v. 13 Cook,

(9th Cir. 1999). Courts grant leave to proceed IFP when 14 plaintiffs submit an affidavit, including a statement of all assets, showing the inability to 15 pay the statutory filing fee. See

(a). 16 Todd White, in support of his IFP motion, has applied to proceed in district court 17 without paying fees or costs. See Doc. No. 2. Plaintiff is a self-employed legal professional, 18 earns an average monthly income of $125.00 per month, and during the 12 months 19 preceding his application, collected $195.00 per month in public assistance.

. He 20 lists no other income.

Plaintiff has a prepaid American Express account but lists no 21 other bank accounts.

. Plaintiff anticipates no major changes to his income over 22 the next twelve months and currently transitions between food pantries and soup kitchens. 23

. Based on the information presented, the Court finds Plaintiff sufficiently 24 demonstrates his inability to pay the filing fee required to pursue the instant action. 25 Therefore, the Court GRANTS the motion for leave to proceed IFP as to Plaintiff Todd 26 White. 27 28 1 II. Sua Sponte Screening Pursuant to

(e)(2)(B) 2 A. Legal Standard 3 Notwithstanding payment of any filing fee or portion thereof, a complaint filed by 4 any person seeking to proceed in forma pauperis pursuant to

(a) is subject 5 to a mandatory and sua sponte review and dismissal by the court to the extent it is 6 “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking 7 monetary relief from a defendant immune from such relief.”

(e)(2)(B); 8 Calhoun v. Stahl,

(9th Cir. 2001) (“[T]he provisions of

1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,

(9th 10 Cir. 2000) (en banc). Section 1915(e)(2) mandates that the Court reviewing a complaint 11 filed pursuant to the in forma pauperis provisions make and rule on its own motion to 12 dismiss before directing that the complaint be served by the U.S. Marshal pursuant to 13 Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 4(c)(2). Lopez,

. 14 Rule 12(b)(6) tests the sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6); 15 Navarro v. Block,

(9th Cir. 2001). Dismissal is warranted under Rule 16 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter 17 Reynolds, Inc.,

(9th Cir. 1984); see Neitzke v. Williams,

, 18 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a 19 dispositive issue of law.”). Alternatively, a complaint may be dismissed where it presents 20 a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 21

. While a plaintiff need not give “detailed factual allegations,” he must 22 plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Bell 23 Atlantic Corp. v. Twombly,

(2007). 24 To meet the requirements of Rule 12(b)(6), “a complaint must contain sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 26 Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). A 27 claim is facially plausible when the factual allegations permit “the court to draw the 28 reasonable inference that the defendant is liable for the misconduct alleged.”

In other 1 words, “the non-conclusory ‘factual content,’ and reasonable inferences from that content, 2 must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret 3 Service,

(9th Cir. 2009). 4 B. Insufficiency of Todd White’s Claim 5 Plaintiff alleges that Defendants San Diego Sunrise Management Company and 6 Chairez failed to make necessary repairs or provide reasonable accommodations, increased 7 the monthly rent by two-hundred dollars, and refused to renew the lease agreement with 8 his father, James White unless Plaintiff, Todd White, vacated the rental unit. Plaintiff 9 further alleges that Defendants’ acts are in violation of the American with Disabilities Act 10 by denying him the opportunity to benefit from full and equal access to the dwelling and 11 refusing to add him to the lease agreement. 12 1.

(f)(1): Denial of a Dwelling 13 Plaintiff primarily relies on 42 U.S.C §3604(f) of the Federal Housing Act (“FHA”). 14 Section 3604 (f)(1) makes it unlawful to discriminate in the rental of a dwelling, or to 15 otherwise deny a dwelling to any renter because of a handicap of: (a) the renter, (b) a person 16 residing in or intending to reside in that dwelling, or (c) any person associated with the 17 renter. To prevail on a claim under

(f)(1) a plaintiff must prove 18 discrimination in the rental, or denial, of a living space attributable to the plaintiff’s 19 handicap, the handicap of a cohabitant or potential cohabitant, or the handicap of a person 20 associated with the plaintiff. Plaintiff Todd White does not allege that he, himself, suffers 21 from any physical or mental handicap. Although he sufficiently alleges that his father, 22 James White is wheelchair bound, Plaintiff fails to allege a causal link between his father’s 23 handicap and Defendants’ refusal to allow Plaintiff “full and equal access to the dwelling.” 24 Instead, Plaintiff alleges he was denied access to the rental dwelling as a form of retaliation 25 for initiating a lawsuit against Defendants, not as a result of any handicap he or his father 26 suffer. Accordingly, Todd White fails to state sufficient facts to state a claim under section 27 3604(f)(1). 28 1 2.

(f)(2): Discrimination in the Terms, Conditions or Privileges 2 Section 3604(f)(2) makes it unlawful to “discriminate against any person in the 3 terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services 4 or facilities in connection with such dwelling, because of a handicap of: (a) that person, (b) 5 a person residing in or intending to reside in that dwelling, or (c) any person associated 6 with that person.1 For the purposes of this subsection, discrimination may include refusal 7 to permit reasonable modifications of the premises, refusal to make reasonable 8 accommodations in the polices or practices when necessary for use and enjoyment of the 9 dwelling, or failure to design and construct dwellings accessible to physically handicapped 10 persons. See 42 U.S.C §3604(f)(3). Under

(f)(3), a plaintiff must prove 11 all of the following elements: (1) that the plaintiff or his associate is handicapped within 12 the meaning of

(h); (2) that the defendant knew or should reasonably be 13 expected to know of the handicap; (3) that accommodation of the handicap may be 14 necessary to afford the handicapped person an equal opportunity to use and enjoy the 15 dwelling; (4) that the accommodation is reasonable; and (5) that defendant refused to make 16 the requested accommodation. See

(f)(3)(B); United States v. California 17 Mobile Home Park Mgmt. Co.,

, 1380 (9th Cir. 1997). 18 Although Todd White alleges that the terms and conditions of James White’s lease 19 agreement were modified, Plaintiff Todd White does not allege that he was a party to the 20 lease agreement, nor that he has been discriminated against due to a physical or mental 21 handicap. Accordingly, Todd White fails to state sufficient facts to state a claim under 22 section 3604(f)(2). 23 24 25 26 27 1 Plaintiff also references

(f)(3) and (f)(4). Section 3604(f)(3) describes the various ways in which discrimination may occur for the purposes of this subsection and (f)(4) refers to the standard by 28 1 C. Todd White’s Standing to Bring Suit on Behalf of James White 2 The Complaint alleges that Defendants failed to make reasonable accommodations 3 including the installation of a wheel-chair ramp at the entry way to the apartment, a 4 handicap accessible bathroom facility and “other necessary repairs” - presumably for James 5 White’s use and enjoyment. Even assuming James White is an “aggrieved person” who 6 either “claims to have been injured by a discriminatory housing practice” or believes that 7 such an injury “is about to occur” pursuant to

(a), 3602(i), Todd White 8 must be appointed to bring suit on James White’s behalf. 9 Todd White filed the instant action on behalf of himself and as “proposed guardian 10 ad litem2 for James White.” He requests permission of the Court to allow him to proceed 11 on behalf of his disabled father and refers to Rule 17 of the Federal Rules of Civil 12 Procedure. Rule 17 states that “an action must be prosecuted in the name of the real party 13 in interest,” unless brought by a duly appointed representative. Rule 17(a)(1), Fed.R.Civ.P. 14 The court must appoint a guardian ad litem--or issue another appropriate order--to protect 15 a[n]… incompetent person who is unrepresented in an action.” Rule 17(c)(2), Fed.R.Civ.P. 16 If a need is sufficiently pled, “[t]he [appointed representative] must be truly dedicated to 17 the best interests of the [person] on whose behalf he seeks to litigate,” and not motivated 18 by any personal gain. Smith v. Adamas, No. C 09-3764 PJH (PR),

, at *1 19 (N.D. Cal. Feb. 3, 2010). 20 The Complaint alleges James White is wheelchair bound and benefits from the in- 21 home health care services of his wife and named co-defendant, Nikie White. The facts, as 22 pled, are insufficient to determine whether James White is incompetent or incapacitated 23 and whether Todd White would be an appropriate legal representative. The Court therefore 24 25

26 2 A guardian ad litem is appointed to represent minors or infants, but may also represent the legal interest 27 of an adult who is incompetent or incapacitated. In California, however, a conservator is appointed to exercise the legal rights of another adult who cannot care for him or herself, is developmentally disabled 28 1 DENIES Plaintiff Todd White’s request to proceed, as guardian ad litem on behalf of 2 James White, or otherwise represent James White’s legal interests in this action. 3 D. Leave to Amend 4 A pro se litigant must be given leave to amend his pleading to state a claim unless it 5 is absolutely clear the deficiencies cannot be cured by amendment. See Lopez,

1130 (noting that leave to amend should be granted when a complaint is dismissed under 7

(e) “if it appears at all possible that the plaintiff can correct the defect”). 8 The facts, as pled in the FAC, call into question Todd White’s status as a “renter” as 9 required under

(f)(1) and (2) of the Federal Housing Act. Further, the 10 Complaint is ambiguous as to whether Plaintiff is alleging a physical or mental disability 11 himself or only on behalf of James White. 12 Nonetheless, the Court grants leave to amend to allow Plaintiff Todd White to allege 13 facts sufficient: (1) to state a claim for relief under the FHA and/or ADA on behalf of 14 himself, (2) for the Court to determine whether James White is incompetent or 15 incapacitated, and if so, the suitability of Todd White to proceed as guardian ad litem. 16 Nothing contained within this order shall be construed to affect the legal rights and 17 remedies of James White. Therefore, while the Court finds Plaintiff’s Complaint fails to 18 state a claim for relief, it will provide one final opportunity to cure the pleading deficiencies 19 as discussed in this order. See Akhtar v. Mesa,

(9th Cir. 2012) (citing 20 Ferdik v. Bonzelet,

(9th Cir. 1992)). 21 III. Conclusion and Order 22 Based on the foregoing, the Court HEREBY: 23 1. GRANTS Todd White’s Motion to Proceed IFP, pursuant to

1915(a) [Doc No. 4]; 25 2. DISMISSES Todd White’s claims under the Federal Housing Act and the 26 Americans With Disability Act without prejudice; and 27 3. GRANTS Plaintiff thirty (30) days leave to amend his Second Amended 28 Complaint (“SAC”) in a manner that cures all the deficiencies of pleading 1 described in this order. Plaintiff is cautioned, however, that should he 2 choose to file a SAC, it must be complete by itself, comply with the Federal 3 Rules of Civil Procedure, including Rule 8(a), and that any claim not realleged 4 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 5 v. Richard Feiner & Co., Inc.,

(9th Cir. 1989) (‘[A]n 6 amended pleading supersedes the original.”; Lacey v. Maricopa Cnty., 963

(9th Cir. 2012) (noting that claims dismissed with leave to 8 amend which are not re-alleged in an amended pleading may be “considered 9 waived if not repled.” 10 1] IT IS SO ORDERED. 12 13 || DATED: November 25, 2019 14

16 NITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28