DiGiacomo v. Comcast Corporation

• Court: District Court, N.D. California
• Decided: July 24, 2020
• Docket: 3:20-cv-04492
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

10 San Francisco Division

11 RAYMOND VINCENT DIGIACOMO, JR., Case No. 20-cv-04492-LB

12 Plaintiff SCREENING ORDER

13 v. Re: ECF No. 1

14 COMCAST CORPORATION et al.,

15 Defendants 16 17 INTRODUCTION 18 The plaintiff, Raymond V. DiGiacomo, Jr., who is representing himself and proceeding in 19 forma pauperis, sued Comcast and the City and County of San Francisco (“CCSF”) for Comcast’s 20 poor installation of internet-cabling boxes (pursuant to a contract with the CCSF) underneath 21 roads in San Francisco, including boxes underneath (and near) his bedroom windows. The box- 22 cover screws allegedly loosen, and that creates a jarring noise when drivers drive over them. The 23 plaintiff claims that this violates his due-process rights under the Fifth and Fourteenth 24 Amendments to the U.S. Constitution, his Fourteenth Amendment equal-protection rights, and 25 related state torts (such as negligence and nuisance).1 26

1 Compl. – ECF No. 1. Citations refer to material in the Electronic Case File (“ECF”); pinpoint 27 citations are to the ECF-generated page numbers at the top of documents. At the beginning of his 1 The court previously granted the plaintiff’s motion to proceed in forma pauperis.2 The plaintiff 2 consented to magistrate jurisdiction.3 Before directing the United States Marshal to serve the 3 defendants with the plaintiff’s complaint, the court must screen it for minimal legal viability. 28 4 U.S.C. § 1915(e)(2)(B). The plaintiff has not plausibly pleaded a federal claim, and the court will 5 not exercise supplemental jurisdiction over the state claims. If the plaintiff can cure the 6 deficiencies in his complaint, he may file an amended complaint by August 20, 2020. Otherwise 7 the court will reassign the case to a district judge and recommend dismissal of the complaint for 8 lack of jurisdiction. 9 10 STATEMENT 11 The plaintiff lives near Maiden Lane, in the Union Square neighborhood of San Francisco.4 12 Underneath Maiden Lane, and on other nearby streets, there are “CATV” internet-cabling boxes 13 that have box covers (or “lids”).5 Over time, the “lid fastening screws” either loosen or were never 14 properly fastened.6 As a result, when cars drive over the unfastened boxes, it creates an “extremely 15 jarring” noise that sounds like a gunshot.7 The gunshot noise can be heard day and night, and it 16 prevents the plaintiff from sleeping and otherwise enjoying his property.8 17 On March 21, 2020, the plaintiff contacted the County’s 311 customer service call center to 18 address the “gunshot” noises emitted by the cabling boxes and informed them that the noise was 19 20 21

complaint, the plaintiff also references Section 504 of the Americans with Disabilities Act, 29 U.S.C. 22 §§ 194 et seq., but he does not allege a stand-alone claim. Id. at 2 (¶ 1). 23 2 Order – ECF No. 4. 3 Consent – ECF No. 7. 24 4 Compl. – ECF No. 1 at 3 (¶ 11). 25 5 Id. (¶ 12). 26 6 Id. 7 Id. (¶ 13). 27 8 Id. 1 preventing him from sleeping.9 He complained of several different CATV box lids that resulted in 2 noise and provided their locations.10 3 On April 10, 2020, after he did not hear back from the CCSF, the plaintiff called 311 to follow 4 up on his complaint.11 The 311 operator mentioned that on March 25, 2020, the Department of 5 Public Works (“DPW”) Bureau of Street Use and Mapping Department inspected the box covers 6 and took photographs to document the issue.12 On April 14, 2020, the plaintiff spoke by telephone 7 with a DPW worker named “Roni,” who mentioned that Comcast “was aware” of the issue.13 The 8 plaintiff asked for the relevant Comcast manager’s contact information but was told that he could 9 not be given a supervisor’s contact information.14 Roni said she would contact the plaintiff if she 10 heard back from Comcast.15 Comcast and the CCSF never called the plaintiff back, and the 11 gunshot noise persists.16 12 The plaintiff’s complaint has 10 claims, some against both defendants and some against the 13 individual entities: (1) private nuisance (Comcast and the CCSF); (2) public nuisance (Comcast 14 and the CCSF); (3) negligent hiring, supervision, or retention of employees (Comcast); (4) 15 negligence (Comcast and the CCSF); (5) a violation of his due-process rights under the Fifth and 16 Fourteenth Amendments and 42 U.S.C. § 1983 (CCSF); (6) a violation of his equal-protection 17 rights under the Fourteenth Amendment and § 1983 (CCSF); (7) creation of a dangerous risk 18 (under the “State-Created Danger Doctrine”), in violation of his due-process rights under the Fifth 19 and Fourteenth Amendments and § 1983 (CCSF); (8) an unconstitutional municipal custom or 20 policy, in violation of Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (CCSF); (9) a 21 deprivation of his rights to safety and the pursuit of happiness, in violation of Cal. Const. art. I, § 1

22 9 Id. at 4 (¶ 15). 23 10 Id. 11 Id. (¶ 16). 24 12 Id. 25 13 Id. (¶ 17). 26 14 Id. 15 Id. 27 16 Id. (¶ 18). 1 (“CCSF”); and (10) a breach of a statutory duty to provide medical care, in violation of Cal. Gov’t 2 Code § 815.6 and Cal. Welf. & Inst. § 1700 (CCSF).17 He seeks injunctive relief from the CCSF 3 and monetary damages and injunctive relief from Comcast.18 The court previously granted the 4 plaintiff leave to proceed in forma pauperis and waived payment of the filing fee.19 5 6 ANALYSIS 7 A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is 8 subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is 9 frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary 10 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. 11 Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) 12 (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint 13 make and rule on its own motion to dismiss before directing the United States Marshal to serve the 14 complaint pursuant to Federal Rule of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127. The Ninth 15 Circuit has noted that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule 16 of Civil Procedure 12(b)(6).” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). As the 17 Supreme Court has explained, “[the in forma pauperis statute] is designed largely to discourage 18 the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying 19 litigants generally do not initiate because of the costs of bringing suit.” Neitzke v. Williams, 490 20 U.S. 319, 327–28 (1989). 21 Under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a complaint 22 if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint 23 include a “short and plain statement” showing the plaintiff is entitled to relief. “To survive a 24 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a 25 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 26 17 Id. at 5–17 (¶¶ 19–83). 27 18 Id. at 17. 1 quotation marks omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 2 complaint need not contain “detailed factual allegations,” but the plaintiff must “provide the 3 grounds of his entitle[ment] to relief,” which “requires more than labels and conclusions”; a mere 4 “formulaic recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 5 555. 6 Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 7 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro se plaintiff need only 8 provide defendants with fair notice of his claims and the grounds upon which they rest. Hearns, 9 413 F.3d at 1043. He need not plead specific legal theories so long as sufficient factual averments 10 show that he may be entitled to some relief. Id. at 1041. 11 When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that 12 a district court should grant leave to amend even if no request to amend the pleading was made, 13 unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 14 Lopez, 203 F.3d at 1130 (internal quotations omitted). 15 Here, the parties are not diverse, and thus the court’s jurisdiction rests on federal-question 16 jurisdiction. The plaintiff does not plead a federal claim, and the exercise of supplemental 17 jurisdiction over the state claims thus is not appropriate. 18 19 1. The Complaint Fails to State a Federal Claim 20 The federal claims are a due-process claim, an equal-protection claim, and a Monell claim. The 21 plaintiff does not plausibly plead any federal claim, and thus there is no federal-question 22 jurisdiction. 23 First, the plaintiff does not plead a procedural-due-process claim. “To prevail on a claim for a 24 procedural due process violation, the party must prove three elements: 1) a protectable liberty or 25 property interest, 2) government deprivation of that interest, and 3) a denial of adequate procedural 26 protections.” Holman v. City of Warrenton, 242 F. Supp. 2d 791, 803 (D. Or. 2002) (citing Foss v. 27 Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)). The plaintiff at best pleads the 1 CCSF deprived him of a protectible property interest or denied him adequate procedural 2 protections. 3 Second, the complaint does not plead a substantive-due-process violation. Substantive due 4 process “prevents the government from engaging in conduct that ‘shocks the conscience’ . . . or 5 interferes with rights ‘implicit in the concept of ordered liberty.’” United States v. Salerno, 481 6 U.S. 739, 746 (1987) (quoting Rochin v. California, 342 U.S. 165, 172 (1952) and Palko v. 7 Connecticut, 302 U.S. 319, 325–26 (1937)). “[T]he substantive component of the Due Process 8 Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or 9 conscience shocking, in a constitutional sense.’” Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 10 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992)). And “only the most 11 egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’” Id. at 846 12 (quoting Collins, 503 U.S. at 128). At best, the complaint alleges negligence, not conduct that is 13 arbitrary or shocking in the constitutional sense. 14 Third, the plaintiff does not plead an equal-protection violation. “To state a § 1983 claim for 15 violation of the Equal Protection Clause,” a plaintiff “must show that the defendants acted with an 16 intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” 17 Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 18 F.3d 1193, 1194 (9th Cir. 1998) (quotation omitted); accord Thornton v. City of St. Helens, 425 19 F.3d 1158, 1166 (9th Cir. 2005). Put slightly differently, a plaintiff alleging that he was denied 20 equal protection based on his race or other suspect classification “must plead intentional unlawful 21 discrimination or allege facts that are at least susceptible of an inference of discriminatory intent.” 22 Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998); accord, e.g., 23 Caddell v. Helena Elder Hous., Inc., 494 F. App'x 809, 810 (9th Cir. 2012) (“The district court 24 properly dismissed . . . equal protection claims . . . because [plaintiff] failed to allege facts 25 demonstrating a discriminatory intent.”). “[B]are assertions” and “conclusory allegations” of 26 discrimination will not suffice. See Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 27 (discussing Iqbal, 556 U.S. at 680–81). Nor will the merely “formulaic recitation of the elements” 1 555). Here, the plaintiffs’ allegations are conclusory, and he does not allege discriminatory intent 2 || based on his membership in a protected class. 3 Fourth, the Monell claim fails because (among other reasons) there are no predicate 4 constitutional violations. Plumeau v. Sch. Dist. No. 40, 130 F.3d 432, 438 (9th Cir. 1997). 5 6 || 2. State Claims 7 This is a federal-question and supplemental-jurisdiction suit. The plaintiff has not stated a 8 minimally viable federal claim. The court thus lacks federal-question jurisdiction. Without 9 || jurisdiction, the court does not reach the state-law claims. 10 11 CONCLUSION 12 The court has identified the complaint’s deficiencies. If the plaintiff can cure the deficiencies 5 13 in his complaint regarding the federal claims, he may file an amended complaint by August 20, 14 2020. The court thinks it is unlikely that he can cure the deficiencies because at core, this case is a 15 nuisance case that sounds in tort, and the venue is appropriately in state court. If the plaintiff 16 agrees, he may dismiss the case voluntarily by filing a one-page notice of voluntary dismissal, 5 17 which will operate as a dismissal without prejudice for the state claims, which he can pursue in 18 state court. 19 If the plaintiff does not file an amended complaint by August 20, 2020, the court will reassign 20 || the case with a recommendation to dismiss the case for lack of federal jurisdiction. 21 IT ISSO ORDERED. 22 Dated: July 24, 2020 Lif EC 23 LAUREL BEELER 24 United States Magistrate Judge 25 26 27 28 ORDER — No. 20-cv-04492-T RB