Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge
The defendants' motion to dismiss the amended complaint [16-1] is granted in part and denied in part as follows: the motion to dismiss Counts I, II and IV from the amended complaint is granted; the motion to dismiss the allegations in Count III about failing to end nine years of discrimination and discriminatory conduct directed at others is granted; and the motion to dismiss the § 1983 conspiracy claim in Count III is denied. Because the court allowed Mehta to amend his complaint after dismissing claims from the original complaint that are virtually identical to the claims dismissed by this order, the claims that failed to survive the motion to dismiss are dismissed with prejudice. The parties shall file a joint status report detailing proposed deadlines for discovery and dispositive motions, and shall deliver courtesy copies to both this court as well as the assigned magistrate judge, no later than August 11, 2010. They shall report for a status hearing before this court on September 14, 2010, at 11:00 a.m.
O [ For further details see text below.] Docketing to mail notices.
On April 29, 2010, this court dismissed plaintiff Kirti Mehta's complaint after screening it pursuant to 28 U.S.C. § 1915(e)(2)(B). The court concluded that even viewing the pro se complaint liberally, it failed to allege minimal facts sufficient to state plausible claims of discrimination under the Fair Housing Act. The court gave Metha time to file an amended complaint, which he has done. In response to the amended complaint, the defendants have filed a motion to dismiss, arguing that each of Mehta's claims are again subject to dismissal because they are essentially identical to the claims previously dismissed. For the reasons that follow, the motion to dismiss is granted in part and denied in part.
Count I -- "Negligence & in violation of fiduciary duty"
In Count I, Mehta alleges that the defendants violated their fiduciary duties to him by failing to address an accumulation of water outside his unit, fix a broken sump pump in his unit, and properly maintain the building and landscaping. He alleges that the defendants were motivated by his race. The court dismissed the count because it consisted of nothing but "[n]aked assertions devoid of further factual enhancement." Order of April 29, 2010 (docket #9) at 2 (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2007) (internal quotation marks and citation omitted)).
The sole change made to this count in the amended complaint is as follows:
Further investigation/discovery will produce evidence of color of law pursuant to federal rule 26 through 37.
Amended Complaint (docket #15) at ¶¶ 1 & 4. Mehta's additional language does not factually enhance his naked assertions. To the contrary, it acknowledges the current dearth of factual allegations.
Because Mehta's amendment fails to cure the deficiency previously noted, Count I is again dismissed.
Count II -- "Retaliation"
In Count II, Mehta alleges that the defendants repaired his back fence and wrongfully charged him for it, and that the defendants retaliated against minority homeowners who complained about their failure to properly maintain the property. The court dismissed this count from the original complaint because the allegations were so general and vague that they did not state a claim for which relief could be granted. The allegations of the amended complaint are identical to the original complaint (except that some of the text is now bigger, underscored, or in bold). Because Mehta has failed to ...