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Creamer v. County of Kauai

United States District Court, D. Hawaii

November 30, 2017

DANNY LEE CREAMER, Plaintiff,
v.
COUNTY OF KAUAI; SCOTT BREDE, in his official capacity and ROY ASHER, in his official capacity, Defendants.

          ORDER GRANTING COUNTY OF KAUAI, SCOTT BREDE, IN HIS OFFICIAL CAPACITY, AND ROY ASHER, IN HIS OFFICIAL CAPACITY'S MOTION TO DISMISS COMPLAINT (ECF No. 13) WITH LEAVE TO AMEND

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE

         Plaintiff Danny Lee Creamer, a former police officer with the Kauai Police Department, filed a complaint against the County of Kauai, Lieutenant Scott Brede, and Assistant Chief Roy Asher of the Kauai Police Department.

         Plaintiff's pleading is a form complaint. It contains bare bones allegations and limited information. Construed liberally, Plaintiff's Complaint alleges that Defendants discriminated against him on the basis of his race, color, age, and disability.

         Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Complaint is insufficient in its present form to state a claim upon which relief may be granted.

         Defendants' Motion to Dismiss (ECF No. 13) is GRANTED WITH LEAVE TO AMEND.

         PROCEDURAL HISTORY

         On December 6, 2016, Plaintiff Danny Lee Creamer filed a COMPLAINT FOR EMPLOYMENT DISCRIMINATION. (ECF No. 1).

         On June 1, 2017, Defendants filed a pleading entitled DEFENDANTS COUNTY OF KAUA'I, SCOTT BREDE, IN HIS OFFICIAL CAPACITY, AND ROY ASHER, IN HIS OFFICIAL CAPACITY'S MOTION TO DISMISS COMPLAINT FILED ON DECEMBER 6, 2016. (ECF No. 13).

         On September 11, 2017, Plaintiff filed an OPPOSITION. (ECF No. 23).

         On September 26, 2017, Defendants filed a REPLY. (ECF No. 24).

         The court elected to decide the Motion without a hearing pursuant to Local Rule 7.2(d). (ECF No. 14).

         BACKGROUND

         Plaintiff Danny Lee Creamer was a police officer with the Kauai Police Department from 1990-2014. (Complaint at ¶¶ IC, IIIE, ECF No. 1). Plaintiff is an African American male born in 1956. (Id. at ¶ IIID). Plaintiff alleges that he is disabled due to occupational and mental disorders which led to intense headaches, stomach problems and loss of sleep and appetite. (Id.) Plaintiff states that he “developed physical symptoms in body areas which were not normal functioning.” (Id. at ¶ IIIE).

         Plaintiff states that he was diagnosed by his doctor and a doctor chosen by the Police Department. (Exhibit A, attached to Complaint at ¶ 8, ECF No. 1-1).

         Plaintiff claims that discriminatory acts based on his race, color, age, and disability occurred on April 17, 2014, May 20, 2014, and December 6, 2016. (Complaint at ¶ IIIC, ECF No. 1).

         Plaintiff struggled with a new reporting system. (Id. at ¶ IIIE). Plaintiff reported his difficulties with the new system. (Id.) Plaintiff alleges unspecified disciplinary actions taken against him. (Id.)

         Plaintiff states that when he became ill and was unable to return to work, he was denied medical treatment. (Exhibit A, attached to Complaint at ¶ 5, ECF No. 1-1). Plaintiff alleges that Lieutenant Brede's unspecified acts led to him feeling ashamed, embarrassed, and humiliated. (Id. at ¶ 6). Plaintiff states that due to his age, he was not given “due process of chain of command forewarning [sic] that reports or work was inefficient” by his immediate supervisor. (Id. at ¶¶ 7, 9).

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) permits dismissal of a complaint that fails “to state a claim upon which relief can be granted.” Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996). Courts may also “consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Documents whose contents are alleged in a complaint and whose authenticity is not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). If a court converts a motion to dismiss into a motion for summary judgment, the court must give the parties notice and a reasonable opportunity to supplement the record. Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir. 1995).

         On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. See Sprewell, 266 F.3d at 988; Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000); In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Moreover, the court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988.

         In summary, to survive a Rule 12(b)(6) motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations and quotations omitted). Dismissal is appropriate under Rule 12(b)(6) if the facts alleged do not state a claim that is “plausible on its face.” Id. at 570. “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.' ” Id. (quoting Fed.R.Civ.P. 8(a)(2)).

         ANALYSIS

         Plaintiff is appearing pro se. The Court liberally construes Plaintiff's filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013). A court may, however, deny leave to amend where further amendment would be futile.

         Plaintiff's Complaint alleges four causes of action:

         First, Plaintiff claims that he was discriminated against on the basis of his race and color in violation of Title VII of the Civil Rights Act of 1964.

         Second, Plaintiff claims that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act.

         Third, Plaintiff claims that he was discriminated against on the basis of disability in violation of the Americans With Disabilities Act.

         Fourth, Plaintiff claims that he was retaliated against for complaining of discrimination based on his race, color, age, and disability. (Complaint at pp. 4-6, ECF No. 1). Plaintiff also seeks punitive damages. (Id. at p. 7).

         I. Plaintiff's Claims Against Individuals

         Plaintiff's claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act asserted against Defendants Scott Brede and Roy Asher in their official ...


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