Wagner v. Safeway, Inc.

• Court: District Court, N.D. California
• Decided: December 16, 2021
• Docket: 3:21-cv-08903
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL L. WAGNER, Case No. 21-cv-08903-JSC

8 Plaintiff, SCREENING ORDER v. 9

10 SAFEWAY, INC., Defendant. 11

12 13 Michael Wagner, representing himself, brings this action against Safeway, Inc., alleging 14 sexual harassment by Safeway employees. Having granted Mr. Wagner’s application to proceed 15 in forma pauperis, (see Dkt. No. 4), the Court now screens his Complaint pursuant to 28 U.S.C. § 16 1915. 17 COMPLAINT ALLEGATIONS 18 Mr. Wagner’s allegations are difficult to discern, but they appear to relate to issues that he 19 has had at “the Safeway store at Palmetto and Manor.” (Dkt. No. 1 at 3.) Mr. Wagner alleges that 20 “numerous store employees” have engaged in “blatant and systemic sexual harassment.” (Id.) Mr. 21 Wagner points to “a Store-wide custom of stalking the Plaintiff, on and off the store premises, 22 with one employee often demonstrating enraged and threatening acts.” (Id. at 4.) “The Plaintiff is 23 blamed for these workers weakness with Masterbation [sic] (hence the sexual harassment claim).” 24 (Id.) As a result, “[t]he Plaintiff is forced into using other Markets for his grocery shopping.” (Id.) 25 Mr. Wagner pleads a single claim under 42 U.S.C. § 1981 and seeks $25 million in 26 damages. (Id. at 4-5.) 27 LEGAL STANDARD 1 forma pauperis upon a determination that the case is: (1) frivolous or malicious; (2) fails to state a 2 claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is 3 immune from such relief. See 28 U.S.C. § 1915(e)(2). The standard of review under 28 U.S.C. § 4 1915(e)(2) mirrors that of Rule 12(b)(6). Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). 5 Thus, the complaint must allege “enough facts to state a claim to relief that is plausible on its 6 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not 7 a “probability requirement” but mandates “more than a sheer possibility that a defendant has acted 8 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations 9 omitted). To avoid dismissal, a complaint must contain more than “naked assertion[s],” “labels 10 and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 11 U.S. at 555-57. “A claim has facial plausibility when the plaintiff pleads factual content that 12 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 13 alleged.” Iqbal, 556 U.S. at 678. When a plaintiff files a complaint without being represented by a 14 lawyer, the court must “construe the pleadings liberally . . . to afford the petitioner the benefit of 15 any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal quotation marks and 16 citation omitted). 17 JURISDICTION 18 “Federal courts are courts of limited jurisdiction. They possess only that power authorized 19 by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 20 (1994). Further, as courts of limited jurisdiction, “federal courts have an independent obligation to 21 ensure that they do not exceed the scope of their jurisdiction.” Henderson ex rel. Henderson v. 22 Shinseki, 562 U.S. 428, 434 (2011). There are two bases for federal subject matter jurisdiction: (1) 23 federal question jurisdiction under 28 U.S.C. § 1331 and (2) diversity jurisdiction under 28 U.S.C. 24 § 1332. Here, Mr. Wagner invokes federal question jurisdiction based on his claims under 42 25 U.S.C. § 1981. (Dkt. No. 1 at 2, 4.) 26 DISCUSSION 27 As noted above, it is difficult to discern the nature of Mr. Wagner’s claims. He identifies 1 ‘aimed’ at the Plaintiff.” (Dkt. No. 1 at 4.) To the extent that Plaintiff seeks to plead a section 2 1981 claim, he must allege facts demonstrating (1) that he is a member of a racial minority; (2) the 3 defendant’s intent to discriminate on the basis of race; and (3) that the discrimination concerned 4 one or more of the activities enumerated in the statute. See Lenk v. Sacks, Ricketts, and Case LLP, 5 No. 19-cv-03791- BLF, 2020 WL 2793480, at *4 (N.D. Cal. May 29, 2020); see also Comcast 6 Corp. v. National Assn. of Africa American-Owned Media, 140 S.Ct. 1009, 1019 (2020) (“a 7 plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the 8 loss of a legally protected right.”). Mr. Wagner has neither alleged that he is a member of racial 9 minority nor that he has been discriminated against on the basis of race. 10 Title VII of the Civil Rights Act of 1964 prohibits discrimination including sexual 11 harassment that is so “severe or pervasive” as to “alter the conditions of [the victim’s] 12 employment and create an abusive working environment.” Craig v. M & O Agencies, Inc., 496 13 F.3d 1047, 1053-54 (9th Cir. 2007) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 14 (1986)). Mr. Wagner, however, does not allege sexual harassment in the workplace, and instead, 15 appears to allege harassment as a customer by Safeway employees. This is not a cognizable Title 16 VII claim. 17 To the extent that Mr. Wagner seeks to plead a state law claim for harassment or stalking, 18 the Court lacks a basis for supplemental jurisdiction over these state law claims without a 19 properly-pleaded federal cause of action. See 28 U.S.C. §§ 1331 (“The district courts shall have 20 original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the 21 United States), 1367(a) (where the district court has original jurisdiction, it “shall have 22 supplemental jurisdiction over all other claims that are so related to claims in the action within 23 such original jurisdiction....”). Nor has plaintiff established diversity jurisdiction over any such 24 state law claims. See 28 U.S.C. § 1332; Bautista v. Pan American World Airlines, Inc., 828 F.2d 25 546, 552 (9th Cir. 1987) (to establish diversity jurisdiction, a plaintiff must specifically allege the 26 diverse citizenship of all parties, and that the matter in controversy exceeds $75,000.). 27 In sum, the Court cannot discern a plausible claim for relief from Mr. Wagner’s allegations 1 CONCLUSION 2 For the reasons set forth above, Mr. Wagner’s complaint fails section 1915 review. Mr. 3 Wagner may file an amended complaint within 30 days. If Mr. Wagner does not respond to 4 || this Order or if his amended complaint fails to state a claim, the Court may prepare a report and 5 |} recommendation recommending that a district judge dismiss the complaint. 6 The Court encourages Mr. Wagner to seek free assistance from the Northern District’s 7 || Legal Help Center by calling (415) 782-8982. 8 9 IT IS SO ORDERED. 10 Dated: December 16, 2021 td a (12 ne CQUELINE SCOTT CORL 13 United States Magistrate Judge

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