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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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AARON RAISER, 12 13 14 15 16 Plaintiff, vs. CITY OF LOS ANGELES, ET AL., Defendants. CASE NO. CV 13-2925 RGK (RZ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND 17 The Court will dismiss the Second Amended Complaint (2AC) because 18 Plaintiff continues to name several Defendants whom the Court has dismissed from the 19 action. In addition, (1) the 2AC states no “short and plain” entitlement to relief, and 20 (2) many if not all of the changes in the 2AC exceed the scope of leave granted by the 21 Court in dismissing the First Amended Complaint (1AC). 22 23 I. 24 THE 2AC IMPROPERLY TARGETS DISMISSED DEFENDANTS 25 The self-described “mobile homeless” and pro se plaintiff sues over a series 26 of allegedly abusive contacts with him by police officers of the defendant City of 27 Los Angeles. On October 3, 2013, the City moved to dismiss the 1AC. On October 11, 28 1 the only other defendant to have appeared, Bob Stresak, joined in the City’s motion and 2 filed a dismissal motion of his own. 3 On January 3, 2014, the undersigned filed a First Interim Report urging the 4 dismissal of several never-appearing defendants, namely LAPD officers Jester, Lin and the 5 all eight DOES. 6 On January 7, the Court dismissed the 1AC with limited leave to amend within 7 30 days, partly based on the two dismissal motions and partly on its own motion. Plaintiff 8 moved for an extension on February 6, and on February 12 the Court granted the motion 9 by extending his deadline through February 20. On February 13, the District Judge accepted the First Interim Report and 10 11 dismissed the DOES, Jester and Lin from the action. 12 Now before the Court is the 2AC, filed on February 20. In it, Plaintiff 13 continues to name Jester, Lin and the DOES. Perhaps Plaintiff, when completing his 14 revisions in the 2AC, may not yet have been aware of the February 13 dismissals. 15 Whatever may have caused it, however, this targeting of already-dismissed defendants 16 necessitates dismissal of the 2AC with leave to amend. 17 Before closing, the Court observes two further, overlapping problems in the 18 2AC. If uncorrected, they may prompt yet another dismissal – and if so, it may lead to 19 dismissal of the entire action. First, the 2AC worsens Plaintiff’s practice of including 20 lengthy and overly detailed narratives, speeches and political manifestoes. Second, 21 Plaintiff has added new defendants, new theories of relief, and otherwise has exceeded the 22 specific, limited scope of leave-to-amend that the Court granted. (He has also made some 23 changes that were permitted, such as by separating his previously compound “everyone did 24 everything” claims into separate claims, each asserting violation of one legal right.) 25 /// 26 /// 27 /// 28 /// -2- 1 II. 2 THE 2AC IS NOT “SHORT AND PLAIN” 3 A. Applicable Law 4 Federal Rule of Civil Procedure 8(a) requires that “[a] pleading which sets 5 forth a claim for relief . . . shall contain . . . a short and plain statement of the claim 6 showing that the pleader is entitled to relief.” “A claim is the ‘aggregate of operative facts 7 which give rise to a right enforceable in the courts.’” Bautista v. Los Angeles County, 216 8 F.3d 837, 840 (9th Cir. 2000) (quoting Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 9 133 F.2d 187, 189 (2d Cir. 1943)). To comply with the Rule, a plaintiff must plead a short 10 and plain statement of the elements of his or her claim, “identifying the transaction or 11 occurrence giving rise to the claim and the elements of a prima facie case,” which elements, 12 of course, will vary depending on the species of claim being asserted. See Bautista, 216 13 F.3d at 840. Here, the 2AC is so lengthy and given over to tangents, minute details and 14 matters either irrelevant or not yet relevant that it is neither “short” nor “plain.” 15 Plaintiff’s tale has grown in the telling. The initial complaint was 19 pages 16 long. The 1AC swelled to 33 pages long and attached 141 pages of exhibits. The 2AC tips 17 the proverbial scales at 88 pages, not counting dozens of pages of exhibits. But it is not the 18 2AC’s length per se that troubles the Court. What is troubling is how much shorter the 19 pleading could be without losing any clarity (although it likely would thereby gain some). 20 The Court refers Plaintiff to the admonitions of Circuit Judge Arthur Alarcón in dismissing 21 another pro se civil-rights action with leave to amend: 22 23 . . . Plaintiff must identify as a defendant only persons who personally 24 participated in a substantial way in depriving plaintiff of a federal 25 constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a 26 person subjects another to the deprivation of a constitutional right if he does 27 an act, participates in another’s act or omits to perform an act he is legally 28 required to do that causes the alleged deprivation). If plaintiff contends he -3- 1 was the victim of a conspiracy, he must identify the participants and allege 2 their agreement to deprive him of a specific federal constitutional right. 3 ... 4 Plaintiff’s claims must be set forth in short and plain terms, simply, 5 concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 6 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“Rule 8(a) is the starting point of a 7 simplified pleading system, which was adopted to focus litigation on the 8 merits of a claim.”); FED. R. CIV. P. 8. 9 Plaintiff must eliminate from plaintiff’s pleading all preambles, 10 introductions, argument, speeches, explanations, stories, griping, 11 vouching, evidence, attempts to negate possible defenses, summaries, and 12 the like. McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (affirming 13 dismissal of § 1983 complaint for violation of Rule 8 after warning); see 14 Crawford-El v. Britton, 523 U.S. 574, 597, 118 S.Ct. 1584, 140 L.Ed.2d 759 15 (1998) (reiterating that “firm application of the Federal Rules of Civil 16 Procedure is fully warranted” in prisoner cases). 17 A district court must construe pro se pleading “liberally” to determine 18 if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his 19 complaint and give a plaintiff an opportunity to cure them. See Lopez v. 20 Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). However, the “[f]actual 21 allegations must be enough to raise a right to relief above the speculative level 22 on the assumption that all the allegations in the complaint are true (even if 23 doubtful in fact).” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 24 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). 25 The court (and any defendant) should be able to read and 26 understand Plaintiff’s pleading within minutes. McHenry, 84 F.3d at 27 1177. 28 unexplained, tenuous or implausible connection to the alleged constitutional A long, rambling pleading, including many defendants with -4- 1 injury or joining a series of unrelated claims against many defendants very 2 likely will result in delaying the review required by 28 U.S.C. § 1915 and an 3 order dismissing plaintiff’s action pursuant to FED. R. CIV. P. 41 for violation 4 of these instructions. 5 6 Clayburn v. Schirmer, No. CIV S 06-2182 ALA P, 2008 WL 564958, slip op. at 3-4 (E.D. 7 Cal. Feb. 28, 2008) (Alarcón, Circuit J., sitting by designation) (emphasis in bold added). 8 What is a “short and plain” statement of a claim? The Ninth Circuit in 9 McHenry, one of the cases cited by Circuit Judge Alarcón above, illustrated this by quoting 10 from an official federal form, one for negligence, as follows: 11 12 The complaints in the official Appendix of Forms are dramatically short and 13 plain. For example, the standard negligence complaint consists of three short 14 paragraphs: 15 16 1. [Allegation of jurisdiction.] 17 2. On June 1, 1936, in a public highway called Boylston 18 Street in Boston, Massachusetts, defendant negligently drove a 19 motor vehicle against plaintiff, who was then crossing said 20 highway. 21 3. 22 broken, and was otherwise injured, was prevented from 23 transacting his business, suffered great pain of body and mind, 24 and incurred expenses for medical attention and hospitalization 25 in the sum of one thousand dollars. 26 27 As a result plaintiff was thrown down and had his leg Wherefore plaintiff demands judgment against defendant in the sum of _____ dollars and costs. 28 -5- 1 FED. R. CIV.P. Form 9. This complaint fully sets forth who is being sued, for 2 what relief, and on what theory, with enough detail to guide discovery. It can 3 be read in seconds and understood in minutes. 4 5 McHenry, 84 F.3d at 1177. “By contrast,” the McHenry court lamented, “the complaint 6 in the case at bar is argumentative, prolix, replete with redundancy and largely irrelevant. 7 It consists largely of immaterial background information.” Id. 8 Just so here. Instead of alleging the operative facts simply and without 9 argument, Plaintiff devotes much of the 2AC to “preambles, introductions, argument, 10 speeches, explanations, stories, griping, vouching, evidence, attempts to negate possible 11 defenses, summaries, and the like.” For example, Plaintiff devotes over seven full pages 12 to a verbose and detailed account of his dealings – sometimes word for alleged word – with 13 the public defender who represented him when he was prosecuted for residing in his car 14 in violation of Los Angeles Municipal Code (LAMC) § 85.02. He devotes three pages, 15 comprising a single wall-of-text paragraph (2AC ¶ 188), to minute details surrounding the 16 LAPD’s detention of him in Reseda, at times at gunpoint. Plaintiff increasingly appears 17 to believe that he must provide comprehensive, detailed evidence in his complaints. Not 18 so. Rather, the pleading stage is the time for “short and plain” allegations supporting 19 straightforward claims, not for reams of details and exhibits (many of which could simply 20 have been cited instead of physically attached) meant to prove those allegations. 21 For the foregoing reasons, any Third Amended Complaint (3AC) shall not 22 exceed 25 pages, exclusive of exhibits, and shall conform to the other admonitions noted 23 in this Order. 24 /// 25 /// 26 /// 27 /// 28 /// -6- 1 III. 2 THE 2AC INCLUDES NUMEROUS AMENDMENTS 3 FOR WHICH THE COURT DID NOT GRANT LEAVE 4 A. Amended Pleadings May Not Exceed The Scope Of Leave Granted 5 When a district court grants leave to amend for a specified purpose, it does not 6 thereafter abuse its discretion by dismissing any portions of the amended complaint that 7 were not permitted. See United States ex rel. Atkinson v. Pennsylvania Shipbuilding Co., 8 473 F.3d 506, 524 (3d Cir. 2007) (interpreting FED. R. CIV. P. 15(a)). The rule applies even 9 if the court did not expressly bar amendments other than the one(s) it did allow. See FDIC 10 v. Kooyomjian, 220 F.3d 10, 15 (1st Cir. 2000) (district court did not abuse discretion in 11 striking two entirely new claims included in amended pleading, where court had granted 12 leave to amend for bolstering of previously-pleaded claims). This rule applies with equal 13 vigor to pro se plaintiffs. See Willett v. City Univ. Of New York, No. 94 CV 3873, 1997 14 WL 104769 (E.D.N.Y. 1997), at *1-*2, followed in Pagan v. New York State Div. Of 15 Parole, No. 98 Civ. 5840(FM), 2002 WL 398682 (S.D.N.Y. 2002), at *3. In Willett, the 16 district court dismissed the pro se plaintiff’s initial civil rights complaint, granting him 17 leave to amend to assert only two of his initial, larger array of claims. “Accordingly,” the 18 court explained when Plaintiff thereafter added several further claims, “the court will not 19 consider [those non-permitted] claims.” 1997 WL 104769 at *2. In Pagan, similarly, a pro 20 se plaintiff tried to add entirely new claims after being granted leave to amend only as to 21 certain already-asserted claims. The Pagan court dismissed the improperly-added new 22 claims with prejudice. 2002 WL 398682 at *3. 23 24 B. The 2AC Includes Numerous Changes Exceeding The Grant Of Leave 25 The 2AC violates this rule in at least three interrelated ways: (1) it adds 26 entirely new legal claims (2) against entirely new defendants (3) based on entirely new 27 factual allegations. In but one of many examples, Plaintiff now seeks to sue the prosecutor 28 and the public defender who were assigned to Plaintiff’s criminal action for violating -7- 1 LAMC § 85.02. It is incidental, at this point, that such claims are plainly infirm in that 2 these court officers enjoy absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 3 269, 113 S. Ct. 2606, 125 L. Ed. 2d (1993) (prosecutors); Polk County v. Dodson, 454 U.S. 4 312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981) (public defenders). The salient problem 5 with these additions, rather, is that Plaintiff was not given leave to make them. In another 6 example, he adds claims of assault and battery based on his brief detention (albeit at 7 gunpoint) in Reseda. Not only were those claims not present in the 1AC, but the Court also 8 did not grant leave to add them in the 2AC. (Perhaps worse, these two new claims are 9 almost entirely superfluous in context. Plaintiff already includes a Fourth Amendment 10 claim asserting the excessive use of force during his Reseda detention. Plaintiff appears 11 to believe that more claims means a better lawsuit, but sometimes less is more.) 12 And so on. The Court has not exhaustively reviewed the 2AC, in part due to 13 the unnecessary length noted in the preceding section of this Order. The Court thus does 14 not intend its express disapproval of some aspects of the 2AC to betoken its approval of 15 other parts not discussed. Suffice it to say that Plaintiff should carefully review the 16 pertinent portions of the January 7 Order dismissing the 1AC to discern exactly what 17 changes the Court gave him leave to make. Any other changes are not permitted absent 18 leave of the Court or Defendants’ written stipulation. If the 3AC again exceeds the scope 19 of leave granted, or if it fails to conform to the page limitation and other short-and-plain 20 admonitions noted above, then the Court may dismiss the 3AC. If the Court dismisses the 21 3AC for such a shortcoming, it may not grant leave to amend – a decision that would 22 terminate this action. 23 24 IV. 25 CONCLUSION 26 27 Based on the foregoing, the 2AC hereby is DISMISSED, and leave to amend is granted. More specifically, Plaintiff has three options: 28 -8- 1 (1) Plaintiff may pursue this action further by filing an original and one copy of a 2 pleading captioned as his Third Amended Complaint (3AC), bearing the current case 3 number, within 30 days of the filing date of this Order. To withstand another 4 dismissal, the 3AC must correct the deficiencies identified in this Order and must 5 comply with the Federal Rules of Civil Procedure and this Court’s Local Rules. The 6 3AC must be complete in itself and must not refer to any prior version of the 7 complaint. 8 (2) Plaintiff may file a “Notice of Intent Not to Amend Complaint” within 30 days 9 of the filing date of this Order. If Plaintiff timely files such a Notice, then the 10 undersigned will recommend to the assigned District Judge that this action be 11 dismissed, freeing Plaintiff to appeal the dismissal on the grounds cited above. See 12 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-66 (9th Cir. 2004). 13 (3) Plaintiff may do nothing in response to this Order. If Plaintiff does not file a 14 document pursuant to either option 1 or 2 above within the 30-day deadline, then the 15 Court shall deem him to have consented to dismissal of this action for failure to 16 prosecute and for failure to comply with this Order. See id. 17 The Court cautions Plaintiff that if he fails to file a timely amended 18 complaint or otherwise fails to comply substantially with the terms of this Order, then 19 this action may be dismissed. 20 IT IS SO ORDERED. 21 DATED: February 26, 2014 22 23 24 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 25 26 27 28 -9-

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