Rodney Gaines v. County of Los Angeles, et al

Filing 9

ORDER by Magistrate Judge Jean P. Rosenbluth: Dismissing Plaintiff's First Amended Complaint with Leave to Amend. (mt)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RODNEY GAINES, 12 Plaintiff, 13 vs. 14 15 16 COUNTY OF LOS ANGELES et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-1509-TJH (JPR) ORDER DISMISSING PLAINTIFF’S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND 17 18 On February 27, 2014, Plaintiff, a prisoner at the 19 California Rehabilitation Center in Norco, lodged pro se a civil20 rights action and was subsequently granted in forma pauperis 21 status. On April 11, 2014, Plaintiff filed a First Amended 22 Complaint (“FAC”) against the County of Los Angeles; Sheriff’s 23 Deputies Christopher J. McMaster, Steven Lehrman, and Roger Izzo; 24 Deputy District Attorney Joseph D. Payne; and Does one through 25 10. (FAC at ¶¶ 4-8.) Plaintiff’s claims arise out of his state 26 criminal proceeding and the events underlying it, which were also 27 the subject of a federal habeas petition that was granted by this 28 Court in part. 1 1 In May 2006, Plaintiff was charged in an amended information 2 in state superior court with one count of sale, transportation, 3 or offer to sell cocaine base under California Health & Safety 4 Code section 11352(a) and one count of possession of a smoking 5 device under section 11364(a). Gaines v. Stolc, No. 6 2:11-cv-02181-TJH-JPR, at 3 (C.D. Cal. Nov. 14, 2011) (report and 7 recommendation). Although Plaintiff had never been charged with 8 possession of cocaine base under Health & Safety Code section 9 11350, the trial court nonetheless sua sponte instructed the jury 10 on that charge and provided the jury with a verdict form for it. 11 Id. On May 15, 2006, the jury acquitted Plaintiff of the sales 12 charge but convicted him of possessing a smoking device and the 13 uncharged possession-of-cocaine-base offense. (Id.) In June 14 2006, Plaintiff was sentenced to 11 years’ imprisonment. 15 (Id.) Plaintiff appealed to the California Court of Appeal, 16 raising a due process claim based on the trial court’s 17 instructing the jury on the simple-possession charge and allowing 18 it to convict him of that crime. Id. The court of appeal agreed 19 that the trial court erred but found that Plaintiff had forfeited 20 his claim by failing to object to the instruction or the verdict 21 form at trial. Id. Plaintiff later raised the due process claim 22 in a Petition for Review and habeas petition to the California 23 Supreme Court, which denied it both times. 24 Id. at 3-4. Plaintiff then filed a federal habeas petition in this 25 Court. The Court found that Plaintiff’s right to due process was 26 violated when he was convicted of a crime with which he was never 27 charged and that Respondent had waived any procedural-bar 28 defense. Id. at 11; see also Gaines, No. 2:11-cv-02181-TJH-JPR, 2 1 at 4 (C.D. Cal. Feb. 16, 2012) (order and judgment). It 2 therefore entered judgment conditionally granting the petition 3 and ordering that Plaintiff be discharged from “all consequences 4 of his conviction pursuant to California Health & Safety Code 5 § 11350 in Los Angeles Superior Case No. MA032254” unless he was 6 brought to retrial within a certain period of time. Gaines, No. 7 2:11-cv-02181-TJH-JPR, at 6-7 (C.D. Cal. Feb. 16, 2012) (order 8 and judgment). The Court did not disturb Plaintiff’s conviction 9 for possession of a smoking device under section 11364(a).1 10 state apparently declined to retry Plaintiff. 11 The (FAC ¶ 10.) In the instant civil-rights action, Plaintiff alleges that 12 Defendants violated his rights under the U.S. Constitution and 13 state law in various ways by arresting him on June 11, 2005, and 14 subsequently prosecuting him. Specifically, Plaintiff alleges 15 that Defendants L.A. County, McMaster, Lehrman, Izzo, and Does 16 violated the Fourth and 14th amendments by falsely arresting and 17 imprisoning him (FAC ¶¶ 16-26), using excessive force against him 18 (FAC ¶¶ 27-30), maliciously prosecuting him (FAC ¶¶ 31-35), and 19 conspiring to violate his constitutional rights (FAC ¶¶ 36-38); 20 Defendants L.A. County, Payne, and Does violated the Fourth and 21 14th amendments by maliciously prosecuting him (FAC ¶¶ 39-41); 22 Defendants County, McMaster, Lehrman, Izzo, Payne, and Does 23 violated state law by falsely imprisoning him (FAC ¶¶ 42-43); 24 Defendants County, McMaster, Lehrman, and Does violated state law 25 by committing assault and battery on him (FAC ¶¶ 44-47); 26 27 28 1 Plaintiff incorrectly argues that the Court “ordered Plaintiff to be released if the State did not retry him.” (FAC ¶ 10.) 3 1 Defendants County, Payne, and Does violated state law by failing 2 to arraign him on the possession charge (FAC ¶¶ 48-52); and 3 Defendants County, McMaster, Lehrman, Izzo, Payne, and Does 4 violated state law by negligently inflicting emotional distress 5 on him (FAC ¶ 53). 6 After screening the FAC in accordance with 28 U.S.C. 7 §§ 1915(e)(2) and 1915A prior to ordering service, the Court 8 finds that much of it fails to state a claim upon which relief 9 might be granted. 10 Because it appears to the Court that at least some of the 11 deficiencies of the FAC are capable of being cured by amendment, 12 it is dismissed with leave to amend. See Lopez v. Smith, 203 13 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (holding that pro se 14 litigant must be given leave to amend complaint unless absolutely 15 clear deficiencies cannot be cured by amendment). If Plaintiff 16 desires to pursue this action, he is ORDERED to file a Second 17 Amended Complaint (“SAC”) within 28 days of the service date of 18 this Order, remedying the deficiencies discussed below.2 19 20 STANDARD OF REVIEW The Court’s screening of a complaint under 28 U.S.C. 21 §§ 1915(e)(2) and 1915A is governed by the following standards. 22 A complaint may be dismissed as a matter of law for failure to 23 state a claim “where there is no cognizable legal theory or an 24 absence of sufficient facts alleged to support a cognizable legal 25 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 26 27 28 2 It appears that at least some of Plaintiff’s claims may be barred by the applicable statute of limitations, but that is an affirmative defense to be raised by Defendants. 4 1 1035, 1041 (9th Cir. 2010) (internal quotation marks omitted); 2 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In 3 considering whether a complaint states a claim, a court must 4 accept as true all the factual allegations in it. Ashcroft v. 5 Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 6 868 (2009); Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 7 2011). The court need not accept as true, however, “allegations 8 that are merely conclusory, unwarranted deductions of fact, or 9 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 10 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks 11 omitted); see also Shelton v. Chorley, 487 F. App’x 388, 389 (9th 12 Cir. 2012) (finding that district court properly dismissed claim 13 when plaintiff’s “conclusory allegations” did not support it). 14 Although a complaint need not include detailed factual 15 allegations, it “must contain sufficient factual matter, accepted 16 as true, to ‘state a claim to relief that is plausible on its 17 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 18 Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 19 929 (2007)). A claim is facially plausible when it “allows the 20 court to draw the reasonable inference that the defendant is 21 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “A 22 document filed pro se is to be liberally construed, and a pro se 23 complaint, however inartfully pleaded, must be held to less 24 stringent standards than formal pleadings drafted by lawyers.” 25 Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 26 L. Ed. 2d 1081 (2007) (citations and internal quotation marks 27 omitted). 28 5 1 DISCUSSION 2 I. Plaintiff’s § 1983 Claims for Unlawful Arrest and 3 Imprisonment, Malicious Prosecution, and Conspiracy Must Be 4 Dismissed 5 Plaintiff alleges that Defendants Los Angeles County, 6 McMaster, Lehrman, Izzo, and Does violated his rights under the 7 Fourth and 14th amendments by falsely arresting and imprisoning 8 him, maliciously prosecuting him, and conspiring to violate his 9 civil rights. (FAC ¶¶ 16-26, 31-43.) In support, Plaintiff 10 contends that he did “absolutely nothing” to give Defendants 11 “reason to believe a crime was committed” and that they therefore 12 “had no reason to detain or search Plaintiff” or to “report that 13 Plaintiff had committed a crime.” (FAC ¶ 18.) Plaintiff also 14 notes that he was acquitted of the charge of selling cocaine base 15 and his conviction of simple possession was overturned on federal 16 habeas review. (FAC ¶¶ 9-10). Plaintiff’s claims must be 17 dismissed because they are barred by Heck v. Humphrey, 512 U.S. 18 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and for other 19 reasons. 20 In Heck v. Humphrey, the U.S. Supreme Court held that if a 21 judgment in favor of a plaintiff in a civil rights action would 22 necessarily imply the invalidity of his or her conviction or 23 sentence, the complaint must be dismissed unless the plaintiff 24 can demonstrate that the conviction or sentence has been 25 invalidated. 512 U.S. at 486–87; see also Smith v. City of 26 Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (“Heck says 27 that if a criminal conviction arising out of the same facts 28 stands and is fundamentally inconsistent with the unlawful 6 1 behavior for which section 1983 damages are sought, the 1983 2 action must be dismissed.” (internal quotation marks omitted)). 3 Thus, the “relevant question” in a § 1983 suit is whether success 4 would “‘necessarily imply’ or ‘demonstrate’ the invalidity of the 5 earlier conviction or sentence.” Id. (quoting Heck, 512 U.S. at 6 487). 7 To prevail on claims for false arrest and imprisonment, 8 Plaintiff would have to demonstrate that Defendants had no 9 probable cause to arrest him. See Cabrera v. City of Huntington 10 Park, 159 F.3d 374, 380 (9th Cir. 1998). Similarly, to prevail 11 on his malicious-prosecution claim, Plaintiff would have to 12 demonstrate that Defendants prosecuted him with malice and 13 without probable cause. See Awabdy v. City of Adelanto, 368 F.3d 14 1062, 1066 (9th Cir. 2004) (“In order to prevail on a § 1983 15 claim of malicious prosecution, a plaintiff must show that the 16 defendants prosecuted him with malice and without probable cause, 17 and that they did so for the purpose of denying him equal 18 protection or another specific constitutional right.” (internal 19 quotation marks and alterations omitted)). But such findings 20 would imply that Plaintiff’s conviction for possession of a 21 smoking device, which apparently arose out of the same events as 22 the other criminal allegations, is invalid. (See FAC ¶ 33 23 (alleging that Defendants McMaster, Lehrman, and Izzo falsely 24 stated that Plaintiff had “handed [Izzo] a pipe and cocaine 25 base”); see also Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 26 2006) (“Wrongful arrest, malicious prosecution, and a conspiracy 27 among Los Angeles officials to bring false charges against 28 [plaintiff] could not have occurred unless he were innocent of 7 1 the crimes for which he was convicted.”); Awabdy, 368 F.3d at 2 1068 (“An individual seeking to bring a malicious prosecution 3 claim must generally establish that the prior proceedings 4 terminated in such a manner as to indicate his innocence.”); see 5 also Devenpeck v. Alford, 543 U.S. 146, 153–54, 125 S. Ct. 588, 6 594, 160 L. Ed. 2d 537 (2004) (when probable cause to arrest for 7 any crime exists, arrest does not violate the Fourth Amendment 8 whether or not that crime was actually charged); Page v. Stanley, 9 No. CV 11–2255 CAS (SS), 2012 WL 1535691, at *8 (C.D. Cal. Mar. 10 23, 2012) (“[W]hen a conviction on one charge is accompanied by a 11 contemporaneous acquittal on another charge in the same 12 proceeding, a malicious prosecution claim based on the acquittal 13 may proceed if the charges aim to punish different conduct.” 14 (quotation marks and alteration omitted and emphasis added)), 15 accepted by 2012 WL 1535687 (C.D. Cal. May 1, 2012).3 Here, 16 17 3 In Jackson v. Barnes, the plaintiff was convicted at his 18 first trial on evidence obtained in violation of his Miranda rights, and after the conviction was reversed on federal habeas 19 corpus review, he was again convicted, this time without the use of the illegally obtained evidence. __ F.3d __, 2014 WL 1324448, at 20 *1 (9th Cir. Apr. 15, 2014). The plaintiff then sued for the 21 violation of his Miranda rights at his first trial. Id. The Ninth Circuit held that the plaintiff’s claim was not Heck barred because 22 his conviction in the second trial was “insulated from the inculpatory statements that [were] the subject of [his] § 1983 23 suit”; as such, a judgment in his favor would have no bearing on his conviction. Id. at *3. Here, however, Plaintiff bases his 24 § 1983 suit on the alleged unlawfulness of his arrest, 25 imprisonment, and prosecution, not the due process violation that 26 27 28 resulted in the reversal of his possession charge on federal habeas corpus review. And as discussed above, a favorable finding on those claims would call into question his conviction for possession of a smoking device, which resulted from the very same arrest and prosecution as the overturned possession charge. As such, Jackson does not apply here. 8 1 Plaintiff acknowledges that the two charges against him arose 2 from the same conduct, “hand[ing Izzo] a pipe and cocaine base.” 3 (FAC ¶ 33.) 4 To the extent Plaintiff claims that Defendants conspired to 5 commit the unlawful acts, moreover, that claim is also barred by 6 Heck. See Cooper v. Ramos, 704 F.3d 772, 784-85 (9th Cir. 2012) 7 (finding plaintiff’s claim alleging “broad conspiracy to obtain 8 [his] conviction and keep him incarcerated” was “an effort to 9 attack the integrity of the investigation and trial” and 10 therefore barred by Heck). And Plaintiff’s conspiracy claim also 11 fails because he has not alleged sufficient facts to support a 12 finding that any Defendants agreed to violate his civil rights. 13 See Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 14 2010) (“To establish liability for a conspiracy in a § 1983 case, 15 a plaintiff must demonstrate the existence of an agreement or 16 meeting of the minds to violate constitutional rights.” (internal 17 quotation marks omitted)); Olsen v. Idaho St. Bd. of Med., 363 18 F.3d 916, 929 (9th Cir. 2004) (“To state a claim for conspiracy 19 to violate constitutional rights, the plaintiff must state 20 specific facts to support the existence of the claimed 21 conspiracy.” (internal quotation marks omitted)). Moreover, to 22 the extent Plaintiff alleges that Defendants conspired against 23 him in violation of § 1985 (see FAC at 8), his claim fails for 24 the additional reason that he has not alleged any facts showing 25 that Defendants were motivated by racial or class-based 26 discriminatory animus. See Bray v. Alexandria Women’s Health 27 Clinic, 506 U.S. 263, 267-68, 113 S. Ct. 753, 758, 122 L. Ed. 2d 28 34 (1993) (to state claim under § 1985(3), plaintiff must allege 9 1 “(1) that some racial, or perhaps otherwise class-based, 2 invidiously discriminatory animus lay behind the conspirators’ 3 action, and (2) that the conspiracy aimed at interfering with 4 rights that are protected against private, as well as official, 5 encroachment” (citations and internal quotation marks omitted)). 6 Accordingly, Plaintiff’s §§ 1983 and 1985 claims for 7 wrongful arrest and imprisonment, malicious prosecution, and 8 conspiracy to violate his constitutional rights are dismissed. 9 See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 10 1995) (dismissal under Heck is “required to be without prejudice 11 so that [plaintiff] may reassert his claims if he ever succeeds 12 in invalidating his conviction”). 13 II. Defendant Payne is Entitled to Absolute Immunity 14 Plaintiff asserts that Deputy District Attorney Payne 15 maliciously prosecuted him in violation of the Fourth and 14th 16 amendments. (FAC ¶¶ 39-41.) In support, Plaintiff contends that 17 Payne furthered a “scheme to illegally commit Plaintiff” for the 18 uncharged crime of possession in various ways. 19 14.) (See FAC ¶¶ 11- Plaintiff’s claims against Payne must be dismissed because 20 he is entitled to prosecutorial immunity. 21 Section 1983 claims for monetary damages against prosecutors 22 are barred by absolute prosecutorial immunity, provided the 23 claimed violations are based on their activities as legal 24 advocates in criminal proceedings.4 Van de Kamp v. Goldstein, 25 555 U.S. 335, 342-43, 129 S. Ct. 855, 861, 172 L. Ed. 2d 706 26 (2009); Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S. Ct. 984, 27 4 Plaintiff does not request (FAC at 11-12.) 28 damages. 10 any relief other than money 1 994-95, 47 L. Ed. 2d 128 (1976). Plaintiff asserts that Payne 2 violated his rights in several ways during the course of his 3 criminal trial – including by failing to arraign Plaintiff on the 4 possession charge or later move to dismiss it, submitting to the 5 court a probation report containing allegedly false information, 6 and making a sentencing recommendation (FAC ¶¶ 11-14, 40) – but 7 all of that conduct is squarely protected by prosecutorial 8 immunity.5 See, e.g., Imbler, 424 U.S. at 430 (prosecutorial 9 immunity applies with “full force” to activities “intimately 10 associated with the judicial phase of the criminal process”); 11 Broam v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) (“If the 12 action was part of the judicial process, the prosecutor is 13 entitled to the protection of absolute immunity whether or not he 14 or she violated the civil plaintiff’s constitutional rights.”); 15 Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005) (noting 16 that prosecutor “enjoys absolute immunity from a suit alleging 17 that he maliciously initiated a prosecution, used perjured 18 testimony at trial, or suppressed material evidence at trial,” 19 among other things). 20 Because Payne is entitled to immunity, the § 1983 claim 21 against him must be dismissed. 22 III. Plaintiff Has Failed to State a Claim Against L.A. County 23 Plaintiff’s claims against L.A. County must also be 24 dismissed because he has failed to allege that his injuries 25 resulted from any county policy or practice. 26 27 28 5 Plaintiff acknowledges that Payne objected to the possession charge but the trial court nevertheless “ordered the jury to consider [it].” (FAC ¶ 11.) 11 1 Municipalities and other local government units are 2 considered “persons” under § 1983 and therefore may be liable for 3 causing a constitutional deprivation. Monell v. Dep’t of Soc. 4 Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 5 611 (1978); Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 6 2006). Because no respondeat superior liability exists under 7 § 1983, a municipality is liable only for injuries that arise 8 from an official policy or longstanding custom. Monell, 436 U.S. 9 at 694; City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 10 1197, 1203, 103 L. Ed. 2d 412 (1989). A plaintiff must show 11 “that a [county] employee committed the alleged constitutional 12 violation pursuant to a formal governmental policy or a 13 longstanding practice or custom which constitutes the standard 14 operating procedure of the local governmental entity.” Gillette 15 v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (internal 16 quotation marks omitted). In addition, he must show that the 17 policy was “(1) the cause in fact and (2) the proximate cause of 18 the constitutional deprivation.” 19 918 (9th Cir. 1996). Trevino v. Gates, 99 F.3d 911, “Liability for improper custom may not be 20 predicated on isolated or sporadic incidents; it must be founded 21 upon practices of sufficient duration, frequency and consistency 22 that the conduct has become a traditional method of carrying out 23 policy.” Id. at 918; Thompson v. Los Angeles, 885 F.2d 1439, 24 1443-44 (9th Cir. 1989) (“Consistent with the commonly understood 25 meaning of custom, proof of random acts or isolated events are 26 [sic] insufficient to establish custom.”), overruled on other 27 grounds by Bull v. City & Cnty. of S.F., 595 F.3d 964, 981 (9th 28 Cir. 2010) (en banc). 12 1 A plaintiff may also establish municipal liability by 2 demonstrating that the alleged constitutional violation was 3 caused by a failure to train municipal employees adequately. 4 Harris, 489 U.S. at 388. See A plaintiff alleging a failure-to-train 5 claim must show the following: (1) he was deprived of a 6 constitutional right; (2) the municipality had a training policy 7 that “amounts to deliberate indifference to the constitutional 8 rights of the persons with whom [its police officers] are likely 9 to come into contact”; and (3) his constitutional injury would 10 not have happened had the municipality properly trained those 11 officers. Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th 12 Cir. 2007) (internal quotation marks omitted, alteration in 13 original). 14 Here, Plaintiff has failed allege any facts regarding the 15 existence of a formal County regulation or policy that caused his 16 alleged injuries, see Gillette, 979 F.2d at 1346; Trevino, 99 17 F.3d at 918, nor has he alleged that the County maintained a 18 “longstanding practice or custom which constitutes the standard 19 operating procedure of the local government entity,” Gillette, 20 979 F.2d at 1346–47 (internal quotation marks omitted); see also 21 Monell, 436 U.S. at 691 (noting that custom must be so 22 “persistent and widespread” that it constitutes a “permanent and 23 well settled” policy). Plaintiff has alleged only a single 24 incident each of excessive force, unlawful arrest and 25 imprisonment, and malicious prosecution, which even if assumed to 26 be unconstitutional are insufficient to establish Monell 27 liability. See Meehan v. L.A. Cnty., 856 F.2d 102, 107 (9th Cir. 28 1988) (two incidents not sufficient to establish custom). 13 1 Plaintiff’s claims against the County therefore must be 2 dismissed.6 3 IV. Compliance with Federal Rule of Civil Procedure 10(a) 4 Federal Rule of Civil Procedure 10(a) requires that “the 5 title of the complaint must name all the parties.” The title of 6 Plaintiff’s Complaint is simply Rodney Gaines v. County of Los 7 Angeles, et al. In any amended complaint, Plaintiff must list 8 all the defendants in the caption or the complaint will be 9 subject to dismissal on that basis alone. See Ferdik v. 10 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992).7 11 12 ****************** If Plaintiff desires to pursue any of the claims in the FAC, 13 he is ORDERED to file a Second Amended Complaint within 28 days 14 of the service date of this Order, remedying the deficiencies 15 discussed above. The SAC should bear the docket number assigned 16 to this case, be labeled “Second Amended Complaint,” and be 17 complete in and of itself, without reference to the original 18 Complaint or any other pleading, attachment, or document. The 19 Clerk is directed to provide Plaintiff with another Central 20 21 22 23 24 25 26 27 28 6 The Supreme Court has held that an “official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3015, 87 L. Ed. 2d 114 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 878, 83 L. Ed. 2d 878 (1985). Plaintiff’s claims against the County, the sheriff’s deputies in their official capacity, and Payne in his official capacity (FAC at 2-3) are therefore needlessly repetitive. In any SAC, Plaintiff should omit any repetitive official-capacity claims. 7 If Plaintiff files a SAC that sufficiently states a federal cause of action, the Court will address whether he has sufficiently stated any state-law claim. 14 1 District of California Civil Rights Complaint Form, CV-66, to 2 facilitate Plaintiff’s filing of a SAC if he elects to proceed 3 with this action. Plaintiff is admonished that if he fails to 4 timely file a SAC, the Court will recommend that this action be 5 dismissed on the grounds set forth above and/or for failure to 6 diligently prosecute. 7 8 9 10 DATED: May 16, 2014 11 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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