-CKD (PS) Goins v. Sacramento County, et al, No. 2:2011cv00475 - Document 11 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/19/11, RECOMMENDING that the action be dismissed with prejudice; and the case be closed. Amended Complaint 10 referred to Judge Lawrence K. Karlton. Within 14 days after being served with these findings and recommendations, plaintiff may file written objections with the court. (Kastilahn, A)

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-CKD (PS) Goins v. Sacramento County, et al Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LOUIS E. GOINS, JR., 11 Plaintiff, 12 No. CIV S-11-0475 LKK CKD PS vs. 13 SACRAMENTO COUNTY et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is proceeding in this action pro se and in forma pauperis. This 17 proceeding was referred to this court by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. 18 § 636(b)(1). Plaintiff has filed a second amended complaint on September 14, 2011. (See Dkt. 19 No. 10.) 20 Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any 21 time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, 22 fails to state a claim on which relief may be granted, or seeks monetary relief against an immune 23 defendant. 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 26 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an Dockets.Justia.com 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. 3 A complaint must contain more than a “formulaic recitation of the elements of a 4 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 5 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 6 “The pleading must contain something more...than...a statement of facts that merely creates a 7 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 8 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 9 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 10 v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 11 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 12 the court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Id. 14 In the second amended complaint, plaintiff alleges claims under Title VII and the 15 Americans with Disabilities Act. The conduct giving rise to plaintiff’s claims occurred in 1985- 16 1991. Plaintiff alleges that he was unable to file the instant litigation until recently due to his 17 mental illness. Plaintiff was twice previously advised that the allegations regarding the tolling of 18 the statute of limitations are insufficient. See Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 19 1999) (equitable tolling applies when plaintiff is prevented from asserting a claim by wrongful 20 conduct on the part of the defendant, or when extraordinary circumstances beyond the plaintiff’s 21 control made it impossible to file a timely claim). 22 The second amended complaint fails to cure the deficiencies evident in the 23 original and first amended complaints. The court notes that in plaintiff’s application to proceed 24 in forma pauperis, plaintiff stated that he was employed at a golf course for a ten-week period in 25 2010. (See Dkt. No. 2.) This suggests that plaintiff has not continuously been under such a 26 mental impairment that he was precluded from filing the instant action at an earlier time. In the 2 1 second amended complaint, plaintiff also alleges that he filed a complaint with the Sacramento 2 County Grand Jury in 2009 to investigate the alleged misconduct. (Dkt. No. 10, at p. 5.) After 3 receiving no response, he sent a follow-up letter. (Dkt. No. 10, at p. 5.) Plaintiff further alleges 4 that he filed a complaint with the Department of Fair Employment and Housing on March 25, 5 1994. (Dkt. No. 10, at p. 5, Ex. 4.) There is no adequate explanation as to why plaintiff waited 6 until February 22, 2011, approximately 20 years after the challenged conduct to file the instant 7 action. His history of employment and efforts to initiate investigations and claims in other fora 8 indicate that plaintiff was not so impaired as to have been unable to bring the instant suit at an 9 earlier time. Because plaintiff has already been given notice and two opportunities to allege 10 sufficient facts to invoke the doctrine of equitable tolling, but has failed to do so, further leave to 11 amend is not warranted. 12 For the reasons outlined above, IT IS HEREBY RECOMMENDED that: 13 1. The action be dismissed with prejudice, and 14 2. The case be closed. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 17 days after being served with these findings and recommendations, plaintiff may file written 18 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 21 F.2d 1153 (9th Cir. 1991). 22 Dated: October 19, 2011 23 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 5 26 Goins.475.ifp.fr.wpd 3

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