Aaron Raiser v. City of Los Angeles et al

Filing 43

MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Ralph Zarefsky. A Third Amended Complaint may be filed within 30 days of the filing date of this Order. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AARON RAISER,

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Plaintiff,
vs.
CITY OF LOS ANGELES, ET AL.,
Defendants.

CASE NO. CV 13-2925 RGK (RZ)

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MEMORANDUM AND ORDER
DISMISSING SECOND AMENDED
COMPLAINT WITH LEAVE TO
AMEND

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The Court will dismiss the Second Amended Complaint (2AC) because

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Plaintiff continues to name several Defendants whom the Court has dismissed from the

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action. In addition, (1) the 2AC states no “short and plain” entitlement to relief, and

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(2) many if not all of the changes in the 2AC exceed the scope of leave granted by the

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Court in dismissing the First Amended Complaint (1AC).

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I.

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THE 2AC IMPROPERLY TARGETS DISMISSED DEFENDANTS

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The self-described “mobile homeless” and pro se plaintiff sues over a series

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of allegedly abusive contacts with him by police officers of the defendant City of

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Los Angeles. On October 3, 2013, the City moved to dismiss the 1AC. On October 11,

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the only other defendant to have appeared, Bob Stresak, joined in the City’s motion and

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filed a dismissal motion of his own.

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On January 3, 2014, the undersigned filed a First Interim Report urging the

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dismissal of several never-appearing defendants, namely LAPD officers Jester, Lin and the

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all eight DOES.

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On January 7, the Court dismissed the 1AC with limited leave to amend within

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30 days, partly based on the two dismissal motions and partly on its own motion. Plaintiff

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moved for an extension on February 6, and on February 12 the Court granted the motion

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by extending his deadline through February 20.
On February 13, the District Judge accepted the First Interim Report and

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dismissed the DOES, Jester and Lin from the action.

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Now before the Court is the 2AC, filed on February 20. In it, Plaintiff

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continues to name Jester, Lin and the DOES. Perhaps Plaintiff, when completing his

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revisions in the 2AC, may not yet have been aware of the February 13 dismissals.

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Whatever may have caused it, however, this targeting of already-dismissed defendants

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necessitates dismissal of the 2AC with leave to amend.

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Before closing, the Court observes two further, overlapping problems in the

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2AC. If uncorrected, they may prompt yet another dismissal – and if so, it may lead to

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dismissal of the entire action. First, the 2AC worsens Plaintiff’s practice of including

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lengthy and overly detailed narratives, speeches and political manifestoes. Second,

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Plaintiff has added new defendants, new theories of relief, and otherwise has exceeded the

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specific, limited scope of leave-to-amend that the Court granted. (He has also made some

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changes that were permitted, such as by separating his previously compound “everyone did

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everything” claims into separate claims, each asserting violation of one legal right.)

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II.

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THE 2AC IS NOT “SHORT AND PLAIN”

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A.

Applicable Law

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Federal Rule of Civil Procedure 8(a) requires that “[a] pleading which sets

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forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

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showing that the pleader is entitled to relief.” “A claim is the ‘aggregate of operative facts

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which give rise to a right enforceable in the courts.’” Bautista v. Los Angeles County, 216

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F.3d 837, 840 (9th Cir. 2000) (quoting Original Ballet Russe, Ltd. v. Ballet Theatre, Inc.,

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133 F.2d 187, 189 (2d Cir. 1943)). To comply with the Rule, a plaintiff must plead a short

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and plain statement of the elements of his or her claim, “identifying the transaction or

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occurrence giving rise to the claim and the elements of a prima facie case,” which elements,

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of course, will vary depending on the species of claim being asserted. See Bautista, 216

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F.3d at 840. Here, the 2AC is so lengthy and given over to tangents, minute details and

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matters either irrelevant or not yet relevant that it is neither “short” nor “plain.”

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Plaintiff’s tale has grown in the telling. The initial complaint was 19 pages

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long. The 1AC swelled to 33 pages long and attached 141 pages of exhibits. The 2AC tips

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the proverbial scales at 88 pages, not counting dozens of pages of exhibits. But it is not the

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2AC’s length per se that troubles the Court. What is troubling is how much shorter the

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pleading could be without losing any clarity (although it likely would thereby gain some).

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The Court refers Plaintiff to the admonitions of Circuit Judge Arthur Alarcón in dismissing

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another pro se civil-rights action with leave to amend:

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. . . Plaintiff must identify as a defendant only persons who personally

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participated in a substantial way in depriving plaintiff of a federal

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constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a

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person subjects another to the deprivation of a constitutional right if he does

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an act, participates in another’s act or omits to perform an act he is legally

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required to do that causes the alleged deprivation). If plaintiff contends he
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was the victim of a conspiracy, he must identify the participants and allege

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their agreement to deprive him of a specific federal constitutional right.

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...

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Plaintiff’s claims must be set forth in short and plain terms, simply,

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concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514,

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122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“Rule 8(a) is the starting point of a

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simplified pleading system, which was adopted to focus litigation on the

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merits of a claim.”); FED. R. CIV. P. 8.

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Plaintiff must eliminate from plaintiff’s pleading all preambles,

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introductions, argument, speeches, explanations, stories, griping,

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vouching, evidence, attempts to negate possible defenses, summaries, and

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the like. McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (affirming

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dismissal of § 1983 complaint for violation of Rule 8 after warning); see

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Crawford-El v. Britton, 523 U.S. 574, 597, 118 S.Ct. 1584, 140 L.Ed.2d 759

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(1998) (reiterating that “firm application of the Federal Rules of Civil

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Procedure is fully warranted” in prisoner cases).

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A district court must construe pro se pleading “liberally” to determine

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if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his

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complaint and give a plaintiff an opportunity to cure them. See Lopez v.

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Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). However, the “[f]actual

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allegations must be enough to raise a right to relief above the speculative level

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on the assumption that all the allegations in the complaint are true (even if

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doubtful in fact).” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555,

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127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted).

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The court (and any defendant) should be able to read and

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understand Plaintiff’s pleading within minutes. McHenry, 84 F.3d at

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1177.

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unexplained, tenuous or implausible connection to the alleged constitutional

A long, rambling pleading, including many defendants with

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injury or joining a series of unrelated claims against many defendants very

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likely will result in delaying the review required by 28 U.S.C. § 1915 and an

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order dismissing plaintiff’s action pursuant to FED. R. CIV. P. 41 for violation

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of these instructions.

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Clayburn v. Schirmer, No. CIV S 06-2182 ALA P, 2008 WL 564958, slip op. at 3-4 (E.D.

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Cal. Feb. 28, 2008) (Alarcón, Circuit J., sitting by designation) (emphasis in bold added).

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What is a “short and plain” statement of a claim? The Ninth Circuit in

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McHenry, one of the cases cited by Circuit Judge Alarcón above, illustrated this by quoting

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from an official federal form, one for negligence, as follows:

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The complaints in the official Appendix of Forms are dramatically short and

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plain. For example, the standard negligence complaint consists of three short

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paragraphs:

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[Allegation of jurisdiction.]

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2.

On June 1, 1936, in a public highway called Boylston

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Street in Boston, Massachusetts, defendant negligently drove a

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motor vehicle against plaintiff, who was then crossing said

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highway.

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broken, and was otherwise injured, was prevented from

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transacting his business, suffered great pain of body and mind,

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and incurred expenses for medical attention and hospitalization

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in the sum of one thousand dollars.

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As a result plaintiff was thrown down and had his leg

Wherefore plaintiff demands judgment against defendant
in the sum of _____ dollars and costs.

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FED. R. CIV.P. Form 9. This complaint fully sets forth who is being sued, for

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what relief, and on what theory, with enough detail to guide discovery. It can

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be read in seconds and understood in minutes.

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McHenry, 84 F.3d at 1177. “By contrast,” the McHenry court lamented, “the complaint

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in the case at bar is argumentative, prolix, replete with redundancy and largely irrelevant.

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It consists largely of immaterial background information.” Id.

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Just so here. Instead of alleging the operative facts simply and without

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argument, Plaintiff devotes much of the 2AC to “preambles, introductions, argument,

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speeches, explanations, stories, griping, vouching, evidence, attempts to negate possible

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defenses, summaries, and the like.” For example, Plaintiff devotes over seven full pages

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to a verbose and detailed account of his dealings – sometimes word for alleged word – with

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the public defender who represented him when he was prosecuted for residing in his car

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in violation of Los Angeles Municipal Code (LAMC) § 85.02. He devotes three pages,

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comprising a single wall-of-text paragraph (2AC ¶ 188), to minute details surrounding the

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LAPD’s detention of him in Reseda, at times at gunpoint. Plaintiff increasingly appears

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to believe that he must provide comprehensive, detailed evidence in his complaints. Not

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so. Rather, the pleading stage is the time for “short and plain” allegations supporting

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straightforward claims, not for reams of details and exhibits (many of which could simply

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have been cited instead of physically attached) meant to prove those allegations.

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For the foregoing reasons, any Third Amended Complaint (3AC) shall not

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exceed 25 pages, exclusive of exhibits, and shall conform to the other admonitions noted

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in this Order.

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III.

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THE 2AC INCLUDES NUMEROUS AMENDMENTS

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FOR WHICH THE COURT DID NOT GRANT LEAVE

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A.

Amended Pleadings May Not Exceed The Scope Of Leave Granted

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When a district court grants leave to amend for a specified purpose, it does not

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thereafter abuse its discretion by dismissing any portions of the amended complaint that

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were not permitted. See United States ex rel. Atkinson v. Pennsylvania Shipbuilding Co.,

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473 F.3d 506, 524 (3d Cir. 2007) (interpreting FED. R. CIV. P. 15(a)). The rule applies even

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if the court did not expressly bar amendments other than the one(s) it did allow. See FDIC

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v. Kooyomjian, 220 F.3d 10, 15 (1st Cir. 2000) (district court did not abuse discretion in

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striking two entirely new claims included in amended pleading, where court had granted

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leave to amend for bolstering of previously-pleaded claims). This rule applies with equal

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vigor to pro se plaintiffs. See Willett v. City Univ. Of New York, No. 94 CV 3873, 1997

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WL 104769 (E.D.N.Y. 1997), at *1-*2, followed in Pagan v. New York State Div. Of

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Parole, No. 98 Civ. 5840(FM), 2002 WL 398682 (S.D.N.Y. 2002), at *3. In Willett, the

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district court dismissed the pro se plaintiff’s initial civil rights complaint, granting him

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leave to amend to assert only two of his initial, larger array of claims. “Accordingly,” the

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court explained when Plaintiff thereafter added several further claims, “the court will not

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consider [those non-permitted] claims.” 1997 WL 104769 at *2. In Pagan, similarly, a pro

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se plaintiff tried to add entirely new claims after being granted leave to amend only as to

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certain already-asserted claims. The Pagan court dismissed the improperly-added new

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claims with prejudice. 2002 WL 398682 at *3.

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B.

The 2AC Includes Numerous Changes Exceeding The Grant Of Leave

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The 2AC violates this rule in at least three interrelated ways: (1) it adds

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entirely new legal claims (2) against entirely new defendants (3) based on entirely new

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factual allegations. In but one of many examples, Plaintiff now seeks to sue the prosecutor

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and the public defender who were assigned to Plaintiff’s criminal action for violating
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LAMC § 85.02. It is incidental, at this point, that such claims are plainly infirm in that

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these court officers enjoy absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259,

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269, 113 S. Ct. 2606, 125 L. Ed. 2d (1993) (prosecutors); Polk County v. Dodson, 454 U.S.

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312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (public defenders). The salient problem

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with these additions, rather, is that Plaintiff was not given leave to make them. In another

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example, he adds claims of assault and battery based on his brief detention (albeit at

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gunpoint) in Reseda. Not only were those claims not present in the 1AC, but the Court also

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did not grant leave to add them in the 2AC. (Perhaps worse, these two new claims are

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almost entirely superfluous in context. Plaintiff already includes a Fourth Amendment

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claim asserting the excessive use of force during his Reseda detention. Plaintiff appears

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to believe that more claims means a better lawsuit, but sometimes less is more.)

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And so on. The Court has not exhaustively reviewed the 2AC, in part due to

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the unnecessary length noted in the preceding section of this Order. The Court thus does

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not intend its express disapproval of some aspects of the 2AC to betoken its approval of

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other parts not discussed. Suffice it to say that Plaintiff should carefully review the

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pertinent portions of the January 7 Order dismissing the 1AC to discern exactly what

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changes the Court gave him leave to make. Any other changes are not permitted absent

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leave of the Court or Defendants’ written stipulation. If the 3AC again exceeds the scope

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of leave granted, or if it fails to conform to the page limitation and other short-and-plain

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admonitions noted above, then the Court may dismiss the 3AC. If the Court dismisses the

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3AC for such a shortcoming, it may not grant leave to amend – a decision that would

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terminate this action.

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IV.

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CONCLUSION

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Based on the foregoing, the 2AC hereby is DISMISSED, and leave to amend
is granted. More specifically, Plaintiff has three options:

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(1)

Plaintiff may pursue this action further by filing an original and one copy of a

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pleading captioned as his Third Amended Complaint (3AC), bearing the current case

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number, within 30 days of the filing date of this Order. To withstand another

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dismissal, the 3AC must correct the deficiencies identified in this Order and must

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comply with the Federal Rules of Civil Procedure and this Court’s Local Rules. The

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3AC must be complete in itself and must not refer to any prior version of the

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complaint.

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(2)

Plaintiff may file a “Notice of Intent Not to Amend Complaint” within 30 days

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of the filing date of this Order. If Plaintiff timely files such a Notice, then the

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undersigned will recommend to the assigned District Judge that this action be

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dismissed, freeing Plaintiff to appeal the dismissal on the grounds cited above. See

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Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-66 (9th Cir. 2004).

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(3)

Plaintiff may do nothing in response to this Order. If Plaintiff does not file a

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document pursuant to either option 1 or 2 above within the 30-day deadline, then the

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Court shall deem him to have consented to dismissal of this action for failure to

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prosecute and for failure to comply with this Order. See id.

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The Court cautions Plaintiff that if he fails to file a timely amended

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complaint or otherwise fails to comply substantially with the terms of this Order, then

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this action may be dismissed.

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IT IS SO ORDERED.

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DATED: February 26, 2014

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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