Elissa Rubenstein v. Whittier Police Department et al

Filing 23

ORDER DISMISSING PLAINTIFF'SFOURTH AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Amended Complaint, 22 If plaintiff desires to pursue this action, she is ORDERED to file within 28 days of the service date o f this Order a Fifth Amended Complaint remedying the deficiencies discussed below or, alternatively, a voluntary dismissal of all claims and defendants unrelated to her cognizable Fourth Amendment claim against the aforementioned seven defendants. (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ELISSA RUBENSTEIN,

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Plaintiff,

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v.

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14 WHITTIER POLICE DEPARTMENT, et
al.,

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Defendants.

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Case No. CV 13-9549 JLS (KK)

ORDER DISMISSING PLAINTIFF’S
FOURTH AMENDED COMPLAINT WITH
LEAVE TO AMEND

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I.
INTRODUCTION

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On August 27, 2014, plaintiff, proceeding in forma pauperis,
filed a pro se Fourth Amended Complaint (“FAC”) alleging two
civil rights claims against nine named Whittier Police Department
(“WPD”) officers, in their individual capacities.

Upon screening

23 the FAC pursuant to 28 U.S.C. § 1915(e)(2), the Court finds that
24 plaintiff’s allegations state a claim under the Fourth Amendment
25 in regard to defendants Nyberg, Plank, Bolanos, Karson, Jensen,
26 Cheng, and Esquivel, but do not state a claim in regard to the
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remaining two defendants or her other cause of action.
Accordingly, the FAC is dismissed with leave to amend.

If

3 plaintiff desires to pursue this action, she is ORDERED to file
4 within 28 days of the service date of this Order a Fifth Amended
5 Complaint remedying the deficiencies discussed below or,
6 alternatively, a voluntary dismissal of all claims and defendants
7 unrelated to her cognizable Fourth Amendment claim against the
8 aforementioned seven defendants.
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II.

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PROCEDURAL BACKGROUND

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On January 8, 2014, plaintiff Elissa Rubenstein

12 (“plaintiff”), who is at liberty and has been granted leave to
13 proceed in forma pauperis, filed a pro se Civil Rights Complaint
14 (“Original Complaint”) pursuant to 42 U.S.C. § 1983 (“Section
15 1983”).
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(ECF Docket No. (“dkt.”) 1).

“Does 1-10” (“Doe Defendants”).

Plaintiff sued the WPD and

Plaintiff sued the Doe

Defendants in their individual and official capacities, and
sought monetary relief from all defendants.
On January 14, 2014, this Court dismissed the Original
Complaint and granted plaintiff leave to amend to the extent
plaintiff could state any viable claims against the defendants.

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(Dkt. 8).

On January 28, 2014, plaintiff filed a First Amended

Complaint which alleged multiple civil rights claims against only
defendant WPD — apparently predicated on most of the same
misconduct alleged in the Original Complaint—and sought

monetary

25 relief from defendant WPD. (Dkt. 9). On February 25, 2014, this
26 Court dismissed the First Amended Complaint because it failed to
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1 comply with Rule 8 (“Rule 8”) and Rule 10 (“Rule 10”) of the
2 Federal Rules of Civil Procedure and failed to state a viable
3 Section 1983 claim for municipal liability against defendant WPD.
4 (Dkt. 11).

The Court granted plaintiff leave to amend to the

5 extent she could state any viable claims against the defendant.
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On March 11, 2014, plaintiff filed a Second Amended

7 Complaint which alleged multiple civil rights claims against
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8 eleven named WPD officers and defendant WPD, again apparently

9 predicated on most of the same misconduct alleged in plaintiff’s
10 first two complaints.

(Dkt. 12).

Plaintiff sued the individual

11 defendants in their official capacities only, and sought monetary
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relief from all defendants.

On April 23, 2014, this Court

dismissed the Second Amended Complaint because it again failed to
comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure and also failed to state a viable Section 1983
municipal liability claim.

(Dkt. 15).

The Court granted

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plaintiff leave to amend to the extent she could state any viable

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claims against the defendants.
On April 30, 2014, plaintiff filed the Third Amended
Complaint, which alleged multiple civil rights claims against

20 defendant WPD and the same eleven named WPD officers, again
21 apparently predicated on most of the same misconduct alleged in
22 plaintiff’s first three complaints. (Dkt. 16). Plaintiff again
23 sued the individual defendants in their official capacities only,
24 and sought only monetary relief. On August 15, 2014, this Court
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Specifically, the
sued WPD
26 Nyberg, Plank, Bolanos,Second Amended ComplaintEsquivel, officers
Karson, Jensen, Cheng,
27 Harrison, Becker, Hedgpeth, and Dineen.

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1 dismissed the Third Amended Complaint, finding that plaintiff
2 stated a viable Fourth Amendment claim against nine of the eleven
3 named WPD officers in their individual capacities,2 but failed to
4 state a claim in regard to all of her other causes of action
5 against all other defendants.

(Dkt. 20).

The Court also found

6 that plaintiff could plausibly allege facts in support of her
7 procedural due process-based defamation claim in a later
8 complaint.

Hence, the Court granted plaintiff leave to amend,

9 instructing plaintiff that she could elect to either (1) proceed
10 solely on her cognizable Fourth Amendment claim against the nine
11 WPD defendants in their individual capacities; or (2) file a
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Fourth Amended Complaint including her Fourth Amendment claim and
additional facts in support of her procedural due process-based
defamation claim.
Plaintiff appears to have pursued the latter of these two

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options.

On August 27, 2014, plaintiff filed the instant FAC,

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asserting two civil rights claims under 42 U.S.C. § 1983, against

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the nine WPD officers identified by the Court in its Order
dismissing the Third Amended Complaint, in their individual
capacities.

(Dkt. 22).

Plaintiff seeks only monetary relief.

20 (FAC at 31-36).
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The nine officers
WPD officers Nyberg,
26 Plank, Bolanos, Karson,in question wereEsquivel, Harrison, and
Jensen, Cheng,
27 Becker.

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III.

2

ALLEGATIONS IN THE FAC

3 A.

Factual Allegations

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On the afternoon of February 4, 2009, plaintiff was

5 seriously injured in an automobile accident with another car.
6 (FAC at 3-5, 19).

Suffering from severe bleeding, Plaintiff left

7 the scene of the accident and went back to her home.
8 19).

(Id. at 5,

Suddenly, about twenty minutes after the accident,

9 defendants Nyberg, Plank, Bolanos, Karson, Jensen, Cheng, and
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Esquivel barged into plaintiff’s home, without knocking or asking
for plaintiff’s consent to enter.

(Id. at 19).

did not have a warrant or probable cause.

The defendants

(Id.).

Believing

plaintiff to have been driving under the influence of alcohol,
the defendants seized plaintiff, confined her to her chair, and
interrogated her for a two-hour period without any break.

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at 20).

(Id.

Throughout the interrogation, plaintiff remained

compliant and asserted that while she was not intoxicated, she
regretted leaving the scene of the automobile accident.
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(Id. at

Despite plaintiff’s statements, the defendants continued

19 interrogating her and never administered any standard drunk
20 driving tests to determine whether she was intoxicated. (Id. at
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Further, believing plaintiff to be engaged in illegal drug

23 use, the defendants searched plaintiff’s desk, drawers, bathroom
24 medicine cabinet, and handbag.

(Id. at 20).

Upon finding

25 plaintiff’s prescription medications, the defendants asked
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1 plaintiff accusingly what each prescribed medication was for.
2 (Id. at 20-21).
Throughout these events, two WPD officers, defendants Becker

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4 and Harrison, were in constant radio communication with the other
5 seven defendants at the scene.

(Id. at 21).

Plaintiff

6 speculates that defendants Becker and Harrison “must have
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condoned and acknowledged as okay the actions of those present.”
(Id. at 25).
At some point during the events, plaintiff’s fiancé‘s mother

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came to check on plaintiff and requested the defendants at the
scene to leave.
request.

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(Id. at 22-23).

The defendants disregarded her

(Id. at 23).

Subsequently, after hearing of the incident, plaintiff’s
fiancé ended their engagement.

(Id.). Plaintiff’s fiancé was

angry that the defendants had disturbed his mother and believed
plaintiff to have committed some crime.

(Id.).

As a result,

16 plaintiff entered “a downward spiral” which “caus[ed] her to
17 slowly begin to lose her planned marital bond, her love, her
18 future plans, her financial security, her career plans and
19 ability to work at the profession she was engaged in of a
20 Certified Nurse Assistant, her home and eventually her
21 mental/emotional and physical health.”

(Id. at 24).

Plaintiff

22 also suffered psychosis during the few years following the end of
23 her engagement and suffered physical symptoms, including chest
24 pains, tachycardia, and shortness of breath.
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(Id. at 29).

1 B.

Legal Claims

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The FAC asserts two legal claims against all defendants in

3 their individual capacities:
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(1) Claim One: Fourth Amendment: Plaintiff claims defendants

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Nyberg, Plank, Bolanos, Karson, Jensen, Cheng, Esquivel,

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Harrison, and Becker deprived her of her Fourth Amendment

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right to be free from unreasonable searches and seizures by:

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(a) entering and searching her home without a warrant

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on February 4, 2009; and

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(b) seizing her and interrogating her without a warrant
or probable cause.

(FAC at 19-24).

(2) Claim Two: Fourteenth Amendment (Procedural Due
Process): Plaintiff claims defendants Nyberg, Plank,
Bolanos, Karson, Jensen, Cheng, Esquivel, Harrison, and
Becker violated her rights to procedural due process, under

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the Due Process Clause of the Fourteenth Amendment, by:
(a) entering and searching her home and detaining her
without a warrant on February 4, 2009 instead of

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instituting an objective process to determine the truth

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of their suspicion that plaintiff was intoxicated; and

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(b) ruining and “defaming” plaintiff’s reputation among

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her former fiancé and her fiancé’s mother, by their

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actions on February 4, 2009.

(FAC at 25-30).

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IV.

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STANDARD OF REVIEW

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As plaintiff is proceeding in forma pauperis, the Court must

26 screen the FAC prior to ordering service on any defendant, and is
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1 required to dismiss the case at any time if it concludes the
2 action is frivolous or malicious, fails to state a claim on which
3 relief may be granted, or seeks monetary relief against a
4 defendant who is immune from such relief.

See 28 U.S.C. §

5 1915(e)(2)(B); see also Barren v. Harrington, 152 F.3d 1193, 1194
6 (9th Cir. 1998).
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In determining whether a complaint fails to state a claim
for purposes of screening under 28 U.S.C. § 1915(e)(2)(B)(ii),
the Court applies the same pleading standard from Rule 8 of the
Federal Rules of Civil Procedure as it would when evaluating a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

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Under Rule 8(a), a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

“[T]he pleading standard Rule

8 announces does not require ‘detailed factual allegations,’ but

16 it demands more than an unadorned, the-defendant-unlawfully17 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
18 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic
19 Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.
20 2d 929 (2007)). “[A] complaint must contain sufficient factual
21 matter, accepted as true, to ‘state a claim to relief that is
22 plausible on its face.’”

Id. (quoting Twombly, 550 U.S. at 570).

23 “[A] complaint [that] pleads facts that are ‘merely consistent
24 with’ a defendant’s liability . . . ‘stops short of the line
25 between possibility and plausibility of entitlement to relief.’”
26 Id. (quoting Twombly, 550 U.S. at 557).
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In addition, although a

1 court must accept as true all factual allegations contained in a
2 complaint, a court need not accept a plaintiff’s legal
3 conclusions as true.

Id.

“Threadbare recitals of the elements

4 of a cause of action, supported by mere conclusory statements, do
5 not suffice.”

Id. (quoting Twombly, 550 U.S. at 555).

Especially in civil rights cases, a pro se plaintiff’s

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7 pleadings are liberally construed to afford the plaintiff “the
8 benefit of any doubt.”

Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

9 Cir. 2012) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th
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Cir. 1985) (en banc)) (internal quotation marks omitted).

If,

however, a court finds that a pro se complaint has failed to
state a claim, dismissal may be with or without leave to amend.
Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000).

Pro se

plaintiffs should be permitted leave to amend unless it is
absolutely clear that the complaint’s deficiencies cannot be

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cured.

Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047,

1058 (9th Cir. 2011) (“Normally, when a viable case may be pled,
a district court should freely grant leave to amend.”).

A court

may consider factual allegations outside of the complaint in

19 determining whether to grant leave to amend.
20 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
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V.

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See Broam v. Bogan,

DISCUSSION

23 A.

Section 1983 Individual Capacity Claims

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In order to state a claim for a civil rights violation under

25 42 U.S.C. section 1983, a plaintiff must allege that a particular
26 defendant, acting under color of state law, deprived plaintiff of
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1 a right guaranteed under the U.S. Constitution or a federal
2 statute.

42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48,

3 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

Suits against

4 government officials under Section 1983 in their individual
5 capacities “seek to impose personal liability upon a government
6 official for actions he takes under color of state law.”
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Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed.
2d 114 (1985).

“A person deprives another of a constitutional

right, within the meaning of section 1983, if he does an
affirmative act, participates in another’s affirmative acts, or
omits to perform an act which he is legally required to do that
causes the deprivation of which [the plaintiff complains].”

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
In short, “there must be a showing of personal participation
in the alleged rights deprivation . . . .”

Jones v. Williams,

297 F.3d 930, 934 (9th Cir. 2002) (internal citation omitted).

16 See also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
17 (“Liability under section 1983 arises only upon a showing of
18 personal participation by the defendant.”). While individual
19 governmental agents may still be held liable for group
20 participation in unlawful conduct, there must be some showing of
21 “individual participation in the unlawful conduct” for imposition
22 of liability under Section 1983.

Absent such individual

23 participation, an officer cannot be held liable based solely on
24 membership in a group or team that engages in unconstitutional
25 conduct unless each officer was an “integral participant” in the
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1 constitutional violation alleged.
2 294 (9th Cir. 1996).

Chuman v. Wright, 76 F.3d 292,

See also Jones, 297 F.3d at 934.

3 B.

Claim One: Fourth Amendment

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The Fourth Amendment requires that an officer have probable

5 cause before arresting a suspect, such that “an arrest without
6 probable cause violates the Fourth Amendment and gives rise to a
7 claim for damages under [Section] 1983.”

Lee v. City of Los

8 Angeles, 250 F.3d 668, 685 (9th Cir. 2001) (internal citations
9 and quotation marks omitted).
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Similarly, a warrantless entry

into a person’s home to effect an arrest is presumed to be
unreasonable under the Fourth Amendment absent probable cause.
See Payton v. New York, 445 U.S. 573, 586, 590, 100 S. Ct. 1371,
63 L. Ed. 2d 639 (1980) (warrantless arrest in suspect’s dwelling
presumptively unreasonable); LaLonde v. Cnty. of Riverside, 204
F.3d 947, 954 (9th Cir. 2000) (“It is a basic principle of Fourth

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Amendment law that searches and seizures inside a home without a
warrant are presumptively unreasonable.”) (internal citation and
quotation marks omitted).

Probable cause exists when, “under the

totality of circumstances known to the arresting officers, a

19 prudent person would have concluded that there was a fair
20 probability that [the defendant] had committed a crime.” Grant
21 v. City of Long Beach, 315 F.3d 1081, 1085 (9th Cir. 2002)
22 (internal citation omitted). “A police officer has probable
23 cause to effect an arrest if ‘at the moment the arrest was made .
24 . . the facts and circumstances within [his] knowledge and of
25 which [he] had reasonably trustworthy information were sufficient
26 to warrant a prudent man in believing’ that the suspect had
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1 violated a criminal law.”

Orin v. Barclay, 272 F.3d 1207, 1218

2 (9th Cir. 2001) (quoting Beck v. State of Ohio, 379 U.S. 89, 91,
3 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)).
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Here, as was the case with plaintiff’s Third Amended

5 Complaint, the FAC’s allegations regarding the warrantless entry
6 and search of plaintiff’s home on February 4, 2009 generally
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state a plausible Fourth Amendment claim.

However, unlike

plaintiff’s Third Amended Complaint, the FAC itself alleges only
defendants Nyberg, Plank, Bolanos, Karson, Jensen, Cheng, and
Esquivel directly participated in the warrantless entry.
According to the FAC, the two remaining WPD defendants,
defendants Becker and Harrison, did not participate in the

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warrantless entry and were only in radio communication with the
officers that did.

(FAC at 21).

While plaintiff speculates that

defendants Becker and Harrison “must have condoned and
acknowledged as okay the actions of those present” at her home,

16 mere knowledge or approval is insufficient to establish liability
17 under Section 1983. (Id. at 25). To hold defendants Becker and
18 Harrison liable under Section 1983, plaintiff must allege they
19 either performed “an affirmative act, participate[d] in another’s
20 affirmative acts, or omit[tted] to perform an act which [they
21 were] legally required to do that cause[d]” the constitutional
22 violation alleged.
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Duffy, 588 F.2d at 743.

Consequently, unlike the Third Amended Complaint, the Court

24 must hold that the FAC fails to state a Section 1983 individual
25 capacity claim under the Fourth Amendment against defendants
26 Becker and Harrison and only states a plausible claim against the
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1 seven defendants actually involved in the February 2009 incident.
2 Accordingly, Claim One, as against defendants Becker and
3 Harrison, must be dismissed with leave to amend.
4 C.

Claim Two: Fourteenth Amendment (Procedural Due Process)

5

The procedural due process guarantee in the Due Process

6 Clause of the Fourteenth Amendment requires “some kind of a
7 hearing before the State deprives a person of [a] liberty or
8 property [interest].”

Zinermon v. Burch, 494 U.S. 113, 127, 110

9 S. Ct. 975, 108 L. Ed. 2d 100 (1990) (emphasis in original).
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Plaintiff alleges the defendants violated her procedural due
process rights on February 4, 2009 by failing to establish an
objective process by which to determine the truth of their
suspicions that she was intoxicated.

(FAC at 27).

That is,

plaintiff claims that, instead of administering a breathalyzer
test to determine whether plaintiff was intoxicated, defendants

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unnecessarily detained her and interrogated her.

(Id. at 27-29).

Plaintiff’s procedural due process claim is based on essentially
the same conduct (i.e. plaintiff’s wrongful detention by the
defendants) that is the predicate for Claim One, which arises

19 under the Fourth Amendment. Accordingly, plaintiff’s claim is
20 subject to analysis under Fourth Amendment principles, rather
21 than under the Fourteenth Amendment. See Cnty. of Sacramento v.
22 Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
23 (1998) (noting that if a specific constitutional provision covers
24 a plaintiff’s constitutional claim (e.g., the Fourth Amendment),
25 “the claim must be analyzed under the standard appropriate to
26 that specific provision,” and not under general due process)
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1 (internal citations omitted). See also Graham v. Connor, 490
2 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)
3 (“Because the Fourth Amendment provides an explicit textual
4 source of constitutional protection against this sort of
5 physically intrusive governmental conduct, that Amendment, not
6 the more generalized notion of ‘substantive due process,’ must be
7 the guide for analyzing [excessive force claims relating to
8 arrest or seizure by law enforcement].”).

Hence, in light of the

9 separate Fourth Amendment claim, plaintiff’s procedural due
10 process claim, as it relates to her detention on February 4,
11 2009, is superfluous and must be analyzed under Fourth Amendment
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principles.
Plaintiff also alleges defendants “defamed” her before her
fiancé and her fiancé’s mother because their actions on February
4, 2009 damaged her reputation.

(FAC at 26-28).

To the extent

these allegations attempt to assert a Section 1983 claim for

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defamation, based on the procedural protections of the Due

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Process Clause, plaintiff fails to state a claim.

To amount to a

procedural due process violation giving rise to a viable Section
1983 defamation claim, a plaintiff must allege injury to

20 reputation “plus” loss of a recognizable property or liberty
21 interest. See Herb-Hallman Chevrolet, Inc. v. Nash-Holmes, 169
22 F.3d 636, 645 (9th Cir. 1999) (“There are two ways to state a
23 cognizable § 1983 claim for defamation-plus: (1) allege that the
24 injury to reputation was inflicted in connection with a federally
25 protected right; or (2) allege that the injury to reputation
26 caused the denial of a federally protected right.”) (internal
27 citation omitted).
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However, plaintiff has not alleged defamation

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1 as a threshold matter.

Plaintiff alleges no facts showing the

2 defendants in any way defamed her and only claims reputational
3 harm from the defendants’ actions on February 4, 2009.

In short,

4 plaintiff’s “defamation” claim also simply appears to challenge
5 the same conduct that is the predicate for plaintiff’s Fourth
6 Amendment claim.

Such allegations are insufficient to state a

7 claim of defamation under Section 1983 and are more properly
8 subject to analysis as part of plaintiff’s Fourth Amendment
9 claim.
10

See Lewis, 523 U.S. at 843.

be dismissed with leave to amend.
VI.

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ADVISEMENT REGARDING FIFTH AMENDED COMPLAINT

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Accordingly, Claim Two must

Because any Fifth Amended Complaint will be plaintiff’s
fifth opportunity to amend her complaint to rectify pleading
deficiencies, the Court advises plaintiff that it will not be

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disposed toward another dismissal without prejudice and with
leave to amend.

“[A] district court’s discretion over amendments

is especially broad ‘where the court has already given a
plaintiff one or more opportunities to amend his complaint.’”

19 Ismail v. County of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal.
20 2012) (Valerie Baker Fairbank, J.) (quoting DCD Programs, Ltd. v.
21 Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987)); see also Zavala
22 v. Bartnik, 348 F. App’x 211, 213 (9th Cir. 2009) (“Dismissal
23 with prejudice was proper because Zavala was given two prior
24 opportunities to amend his complaint in order to correct the
25 deficiencies identified by the district court but failed to do
26 so.”).
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1

If plaintiff fails timely to file a Fifth Amended Complaint,

2 the dismissal will be converted to a “with prejudice” dismissal
3 due to a lack of prosecution and failure to comply with the
4 Court’s order.

Likewise, if plaintiff does file a Fifth Amended

5 Complaint, but the Fifth Amended Complaint still contains claims
6 on which relief cannnot be granted, the dismissal will be
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converted to a “with prejudice” dismissal.
VII.

8

LEAVE TO FILE A FIFTH AMENDED COMPLAINT

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For the foregoing reasons, the FAC is subject to dismissal,
except for plaintiff’s Fourth Amendment claim as against
defendants Nyberg, Plank, Bolanos, Karson, Jensen, Cheng, and

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Esquivel, in their individual capacities.
Accordingly, IT IS ORDERED THAT:
1) Within 28 days of the service date of this Order,
plaintiff may file a Fifth Amended Complaint to attempt to cure

16 the deficiencies discussed above. The Clerk is directed to
17 provide plaintiff with a Central District of California Civil
18 Rights Complaint Form, CV-66, to facilitate plaintiff’s filing of
19 an Fifth Amended Complaint if she elects to proceed with this
20 action.
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Plaintiff is strongly encouraged to use that form.

2) Alternatively, plaintiff may voluntarily dismiss all

22 claims and defendants unrelated to her cognizable Fourth
23 Amendment claim (Claim One) against defendants Nyberg, Plank,
24 Bolanos, Karson, Jensen, Cheng, and Esquivel, and proceed on her
25 Fourth Amendment claim alone.

In other words, plaintiff must:

26 (a) file a voluntary dismissal of (i) defendants Becker and
27 Harrison in their individual capacities, and (ii) Claim Two; and
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1 (b) proceed only on Claim One against defendants Nyberg, Plank,
2 Bolanos, Karson, Jensen, Cheng, and Esquivel, in their individual
3 capacities only.

If plaintiff elects to dismiss these defendants

4 and claims, she should file within 28 days of the service date of
5 this Order, a document captioned “Voluntary Dismissal” in which
6 she identifies the claims and the defendants she is dismissing
7 from the action.
3) If plaintiff chooses to file a Fifth Amended Complaint,

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9 the Fifth Amended Complaint should bear the docket number
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assigned to this case, be labeled “Fifth Amended Complaint,” and
be complete in and of itself without reference to the FAC or any
other pleading, attachment, or document.

Plaintiff is advised

that the allegations regarding the Fourth Amendment claim, as
presented in the FAC, are sufficient to state a claim against
defendants Nyberg, Plank, Bolanos, Karson, Jensen, Cheng, and

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Esquivel.

Although she must include them in any Fifth Amended

Complaint she files, she need not supplement them with any
additional facts.

However, with respect to plaintiff’s Fourth

Amendment claim against defendants Becker and Harrison, plaintiff

19 must allege additional facts showing their direct personal
20 involvement in the Fourth Amendment violation alleged.
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Plaintiff is admonished that if she fails to timely file a

2 sufficient Fifth Amended Complaint or, alternatively, a voluntary
3 dismissal as described above, the Court will recommend that this
4 action be dismissed with prejudice on the grounds set forth above
5 and/or for failure to diligently prosecute.
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DATED: September 25, 2014
HON. KENLY KIYA KATO
UNITED STATES MAGISTRATE JUDGE

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