Kandell v. Sur 702

1

RONALD ERIC KANDELL, Plaintiff, v. SUR 702, et al., Defendants.

No. 2:23-cv-00248-APG-EJY

United States District Court, D. Nevada

April 20, 2023

ORDER AND REPORT AND RECOMMENDATION ECF NOS. 1 1-1

ELAYNA J. YOUCHAH, MAGISTRATE JUDGE

Pending before the Court is Plaintiff's in forma pauperis application and Complaint. ECF Nos. 1 and 1-1. Plaintiff's application to proceed in forma pauperis is complete and granted below.

I. SCREENING THE COMPLAINT

Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 28 U.S.C. § 1915(e)(2). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). However, pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

A federal court must dismiss a plaintiff's claim if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). The standard for dismissing a complaint for failure to state a claim is established by Federal Rule of Civil Procedure 12(b)(6). The court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions to cure its deficiencies unless it is clear from the face of the complaint that the deficiencies cannot be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Review under Rule 12(b)(6) is essentially a ruling on a question of law. Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). In making this determination, the court treats all material factual allegations as true and construes these facts in the light most favorable to the non-moving party. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must plead more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.

Finally, all or part of a complaint may be dismissed sua sponte if the plaintiff's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

II. DISCUSSION

A. Background Facts.

Plaintiff asserts various claims under several federal and state statutes against Defendants SUR 702, Westcorp Management Group One Inc., Robert Weidauer, and LV Torrey Pines LLC. ECF No. 1-1. Plaintiff alleges that on or about August 28, 2020, the SUR 702^[1] property manager (“Property Manager”) threw away Plaintiff's resume and refused to consider Plaintiff for employment stating he was “too gay.” Id. at 7. This is the only allegation Plaintiff makes in support of his employment discrimination claim.

Plaintiff also includes several allegations about the apartment in which he resides and the way he is treated by the Property Manager. Plaintiff says the apartment has a leaky bathtub, a broken sink, is covered in stains, and contains broken tiles. Id. at 7-11. Plaintiff further alleges the Property Manager, acting on behalf of Defendants, towed his car from his assigned parking space without providing prior notice and demanded medical records to support Plaintiff s need for a service animal. Id. at 7-8. When Plaintiff refused to provide medical records, he was charged a $300 support fee.

Id. at 8. Plaintiff says he suffered trauma and emotional distress as a result of these unlawful actions by Defendants. Id.

Plaintiff further alleges Property Management attempted to intimidate him by leaving nooses outside his apartment on three consecutive days, slashing his tires, and cornering him outside of the leasing office. Id. at 9. Though Plaintiff does not explicitly state the Property Manager tampered with his smoke detector, Plaintiff claims an electrical fire occurred in his apartment on June 17, 2021, the smoke alarm did not go off, and the fire department was not dispatched. Id. Plaintiff claims that due to these actions, including issuing thirty-seven eviction notices to Plaintiff, he suffered psychogenic epilepsy and lives in a constant state of fear and anxiety. Id. at 5. Plaintiff says this has been going on since August 2020. Id. at 7. Plaintiff further claims he has been unable to use the property amenities and felt “stranded” in his apartment from August 24, 2020, until the present due to the alleged harassment. Id. at 9.

Plaintiff alleges Defendants violated his rights under Title VII of the Civil Rights Act of 1964 (Employment Discrimination), Title VIII of the Civil Rights Act of 1964 (the Fair Housing Act), the “FEAR” Act, 18 U.S.C. § 1621, 18 U.S.C. § 650, and 18 U.S.C. § 249. Id. at 3. Plaintiff seeks $812,639.69 in damages. Id. at 5.

B. The Court Recommends Plaintiff's Claims under the “FEAR” Act, 18 U.S.C. § 249, 18 U.S.C. § 1621, and 18 U.S.C. § 650 Be Dismissed With Prejudice.

Plaintiff brings a claim under the “FEAR Act,” which the Court construes as a claim under the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (the “No FEAR Act”). The No FEAR Act “requires that federal agencies repay any discrimination or whistleblower damage awards out of agency funds rather than the General Fund of the Treasury.” Esparza v. Perdue, 2019 WL 13254176, at *3 (N.D. Cal. June 17, 2019). Plaintiff is a private citizen, not employed by or alleging any wrongdoing by a federal agency. For this reason, the Court recommends Plaintiff's No FEAR Act claim be dismissed with prejudice.

Plaintiff's claims under 18 U.S.C. § 249, 18 U.S.C. § 1621, and 18 U.S.C. § 650 fail because these claims lack any basis in law or fact. Plaintiff cannot bring a civil action based on the violation of a criminal statute (18 U.S.C. §§ 1621 and 650) and the Hate Crime Prevention Act (18 U.S.C. § 249) lacks a private right of action.^[2] Because Plaintiff cannot state a cause of action based on violations of these statutes, the Court recommends these claims be dismissed with prejudice.

C. The Court Recommends Plaintiff's Employment Discrimination Claim Be Dismissed Without Prejudice.

Before bringing a Title VII Employment Discrimination claim, a plaintiff must exhaust available administrative remedies by filing an EEOC complaint. 42 U.S.C. § 2000e-5(f)(1); see also Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (“[T]o bring a Title VII claim in district court, a plaintiff must first exhaust [his] administrative remedies.”). Plaintiff does not allege he filed a charge of discrimination with the EEOC or that he has ever been in contact with the EEOC. Plaintiff does not allege he was issued a right-to-sue letter. In sum, Plaintiff fails to allege facts sufficient to demonstrate his employment discrimination claim is properly before the Court. The Court recommends Plaintiff's employment discrimination claim be dismissed without prejudice, but with leave to amend so that Plaintiff may demonstrate exhaustion of his administrative remedies.

D. The Court Recommends Plaintiff's NRS 118A.290 Claims Be Dismissed Without Prejudice.

The Court liberally construes Plaintiff's allegations regarding the condition of his apartment as asserting a claim under NRS 118A.290. This statute states that a “landlord shall at all times ... maintain the dwelling unit in a habitable condition. A dwelling unit is not habitable if it violates provisions of housing or health codes concerning the health, safety, sanitation or fitness for habitation of the dwelling unit or if it substantially lacks” waterproofing, plumbing, water, heating, electricity, air conditioning, and other similar standards. Id.; see also Bour Enterprises, LLC v. 4520 Arville, 516 P.3d 1112 (Table), 2022 WL 4298636, at *1 (Nev. 2022). To assert a claim under NRS 118A.290, a complainant must “deliver a written notice to the landlord specifying each failure by the landlord to maintain the dwelling unit in a habitable condition and requesting that the landlord remedy the failures.” NRS 118A.355. Completing this requirement, along with a failure of the landlord to fulfill its obligations to address the tenant's habitability concerns, unlocks statutory remedies, such as the recovery of actual damages. Id.

Unfortunately, the haphazard nature of Plaintiff's asserted facts leaves the Court unclear what steps Plaintiff took to remedy the problems with his apartment and what response, if any, he received from Defendants. Because of this lack of clarity, the Court finds Plaintiff does not plead sufficient facts to establish a claim under NRS 118A.290. For this reason, the Court recommends Plaintiff's claim under NRS 118A.290 be dismissed without prejudice and with leave to amend.

E. Plaintiff's Fair Housing Act Claims Fail.

Plaintiff contends Defendants discriminated against him because of his “sexuality” and his disability in violation of the Fair Housing Act (“FHA”). Plaintiff does not plead sufficient facts to state these claims.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to...