Chenoa Marie Smith v. Bill Brown et al

Filing 11

ORDER DISMISSING FIRST AMENDEDCOMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Amended Complaint, 9 (Attachments: # 1 Civil Rights Complaint Form) (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHENOA MARIE SMITH,

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Plaintiff,

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v.

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SHERIFF BILL BROWN, et al.,

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Defendants.

) Case No. CV 15-00883-MMM (KK)
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) ORDER DISMISSING FIRST AMENDED
) COMPLAINT WITH LEAVE TO AMEND
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On February 6, 2015, Plaintiff Chenoa Marie Smith

19 (“Plaintiff”), proceeding pro se and in forma pauperis, filed a
20 civil rights complaint pursuant to 42 U.S.C. § 1983
21 (“Complaint”). Following the Court’s screening of the Complaint
22 pursuant to 28 U.S.C. § 1915(e)(2), the Court dismissed the
23 Complaint with leave to amend. On February 25, 2015, Plaintiff
24 filed a First Amended Complaint (“FAC”). After screening the
25 FAC, the Court dismisses the FAC with leave to amend for the
26 reasons set forth below.
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STANDARD OF REVIEW
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The Court’s screening of a complaint under 28 U.S.C.
1

1 § 1915(e)(2) is governed by the following standards.

A complaint

2 may be dismissed as a matter of law for failure to state a claim
3 “where there is no cognizable legal theory or an absence of
4 sufficient facts alleged to support a cognizable legal theory.”
5 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035,
6 1041 (9th Cir. 2010) (internal quotation marks omitted); accord
7 O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008).

In

8 considering whether a complaint states a claim, a court must
9 accept as true all the factual allegations in it.

Ashcroft v.

10 Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
11 (2009); Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011).
12 The court need not accept as true, however, “allegations that are
13 merely conclusory, unwarranted deductions of fact, or
14 unreasonable inferences.”

In re Gilead Scis. Sec. Litig., 536

15 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks
16 omitted); see also Shelton v. Chorley, 487 F. App’x 388, 389 (9th
17 Cir. 2012) (finding that district court properly dismissed claim
18 when plaintiff’s “conclusory allegations” did not support it).
19

Although a complaint need not include detailed factual

20 allegations, it “must contain sufficient factual matter, accepted
21 as true, to ‘state a claim to relief that is plausible on its
22 face.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

23 Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
24 (2007)).

A claim is facially plausible when it “allows the court

25 to draw the reasonable inference that the defendant is liable for
26 the misconduct alleged.”

Iqbal, 556 U.S. at 678.

“A document

27 filed pro se is to be liberally construed, and a pro se
28 complaint, however inartfully pleaded, must be held to less
2

1 stringent standards than formal pleadings drafted by lawyers.”
2 Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed.
3 2d 1081 (2007) (citations and internal quotation marks omitted).
4

DISCUSSION

5 I.

The FAC Again Fails to Comply with the Pleading Requirements

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of Rule 8 of the Federal Rules of Civil Procedure

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Rule 8(a) requires that a complaint contain “a short and

8 plain statement of the claim showing that the pleader is entitled
9 to relief.”

Further, Rule 8(d)(1) provides that “[e]ach

10 allegation must be simple, concise, and direct.”

As the Supreme

11 Court has held, Rule 8(a) “requires a ‘showing,’ rather than a
12 blanket assertion, of entitlement to relief.”
13 U.S. at 555 n.3.

See Twombly, 550

Complaints that are “argumentative, prolix,

14 replete with redundancy, and largely irrelevant” and that
15 “consist[] largely of immaterial background information” are
16 subject to dismissal under Rule 8.

See McHenry v. Renne, 84 F.3d

17 1172, 1177 (9th Cir. 1996).
18

Like the original Complaint, the FAC is unclear and

19 difficult to understand.

Plaintiff names the same two defendants

20 (Santa Barbara County Board of Supervisors and Sheriff Bill
21 Brown) under 42 U.S.C. section 1983 (“Section 1983") but again
22 fails to provide sufficient detail regarding the basis for her
23 claim.

Rather, Plaintiff provides detailed information regarding

24 facts that have no clear relationship to the named defendants.
25 As a result, the FAC fails to comply with Rule 8's requirement of
26 a “simple, concise, and direct” pleading.
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As Plaintiff was previously informed, in order to state a

28 claim for a civil rights violation under Section 1983, a
3

1 plaintiff must allege that a particular defendant, acting under
2 color of state law, deprived plaintiff of a right guaranteed
3 under the U.S. Constitution or a federal statute.

42 U.S.C. §

4 1983; see West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101
5 L. Ed. 2d 40 (1988).

Here, Plaintiff does not specify what

6 action a named defendant took; she does not specify on what date
7 the named defendant allegedly took such action; nor does she
8 specify what constitutional harm resulted from the alleged action
9 of the named defendant.
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As Plaintiff was previously advised, in amending the FAC

11 Plaintiff must state each of her claims separately and for each
12 claim should identify “clearly and precisely” and briefly the
13 legal basis and the facts underlying it.

See Bautista v. L.A.

14 Cnty., 216 F.3d 837, 840-41 (9th Cir. 2000) (“Experience teaches
15 that, unless cases are pleaded clearly and precisely, issues are
16 not joined, discovery is not controlled, the trial court’s docket
17 becomes unmanageable, the litigants suffer and society loses
18 confidence in the court’s ability to administer justice.”).
19 Plaintiff should limit her allegations to the named defendants,
20 and identify when the alleged harm was committed by a named
21 defendant, which named defendant caused the alleged harm, what
22 actions were committed by the named defendant, and what
23 constitutional violation resulted from the named defendant’s
24 alleged action.
25 II.

Plaintiff Has Again Failed to State a Claim Against the

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Santa Barbara County Board of Supervisors

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Once again, Plaintiff sues the Santa Barbara County Board of

28 Supervisors based upon a supervisory role.
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FAC at 1, 3.

1 Municipalities and other local government units are considered
2 “persons” under § 1983 and therefore may be liable for causing a
3 constitutional deprivation.

Monell v. Dep’t of Soc. Servs., 436

4 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Long
5 v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).

However,

6 because no respondeat superior liability exists under § 1983, a
7 municipality is liable only for injuries that arise from an
8 official policy or longstanding custom.

Monell, 436 U.S. at 694;

9 City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103
10 L. Ed. 2d 412 (1989).

A plaintiff must show “that a [county]

11 employee committed the alleged constitutional violation pursuant
12 to a formal governmental policy or a longstanding practice or
13 custom which constitutes the standard operating procedure of the
14 local governmental entity.”

Gillette v. Delmore, 979 F.2d 1342,

15 1346 (9th Cir. 1992) (internal quotation marks omitted).

In

16 addition, she must show that the policy was “(1) the cause in
17 fact and (2) the proximate cause of the constitutional
18 deprivation.”
19 1996).

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.

“Liability for improper custom may not be predicated on

20 isolated or sporadic incidents; it must be founded upon practices
21 of sufficient duration, frequency and consistency that the
22 conduct has become a traditional method of carrying out policy.”
23 Id. at 918; Thompson v. Los Angeles, 885 F.2d 1439, 1443-44 (9th
24 Cir. 1989) (“Consistent with the commonly understood meaning of
25 custom, proof of random acts or isolated events are [sic]
26 insufficient to establish custom.”), overruled on other grounds
27 by Bull v. City & Cnty. of S.F., 595 F.3d 964, 981 (9th Cir.
28 2010) (en banc).
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As a preliminary matter, Plaintiff is once again advised

2 that the entity that would be the real party in interest is
3 ultimately Santa Barbara County (not the Board of Supervisors).
4 Moreover, Plaintiff has once again failed to specifically
5 identify any official policy or longstanding custom or practice
6 of Santa Barbara County that is violative of her constitutional
7 rights.

Plaintiff thus has not properly stated a municipal

8 claim.

See Harris, 489 U.S. at 385 (to state claim against

9 municipality, plaintiff must show that “there is a direct causal
10 link between a municipal policy or custom and the alleged
11 constitutional deprivation”); see also Iqbal, 556 U.S. at 678
12 (vague and conclusory allegations not sufficient to state claim).
13 Accordingly, her claims against the Santa Barbara County Board of
14 Supervisors must be dismissed.
15 III. Plaintiff Has Again Failed to State a Claim Against Sheriff
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Bill Brown in his Official Capacity

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Plaintiff again sues Sheriff Bill Brown in his official

18 capacity.

The U.S. Supreme Court has held an "official-capacity

19 suit is, in all respects other than name, to be treated as a suit
20 against the entity."

Kentucky v. Graham, 473 U.S. 159, 166, 105

21 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); see also Brandon v. Holt,
22 469 U.S. 464, 471-72, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985);
23 Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
24 Such a suit "is not a suit against the official personally, for
25 the real party in interest is the entity."
26 166.

Graham, 473 U.S. at

Moreover, a local government entity "may not be sued under

27 § 1983 for an injury inflicted solely by its employees or agents.
28 Instead, it is only when execution of a government's policy or
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1 custom, whether made by its lawmakers or by those whose edicts or
2 acts may fairly be said to represent official policy, inflicts
3 the injury that the government as an entity is responsible under
4 § 1983."
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Monell, 436 U.S. at 694.

Here, Plaintiff sues Sheriff Bill Brown in his official

6 capacity.

Accordingly, as Plaintiff was previously advised, the

7 entity that would be the real party in interest in any
8 official-capacity suit against the named individual defendants is
9 ultimately Santa Barbara County (not the individual defendant).
10 As discussed above, the Complaint fails to state a claim against
11 any municipality.

Therefore, Plaintiff's official capacity claim

12 against Sheriff Bill Brown must be dismissed.
13 IV.

Plaintiff Has Again Failed to State a Claim Against Sheriff

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Bill Brown in his Individual Capacity

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Plaintiff again sues Sheriff Bill Brown in his individual

16 capacity.

Suits against government officials under Section 1983

17 in their individual capacities "seek to impose personal liability
18 upon a government official for actions he takes under color of
19 state law."

Graham, 473 U.S. at 165.

"A person deprives another

20 of a constitutional right, within the meaning of section 1983, if
21 he does an affirmative act, participates in another's affirmative
22 acts, or omits to perform an act which he is legally required to
23 do that causes the deprivation of which [the plaintiff
24 complains]."
25 1978).

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.

In short, "there must be a showing of personal

26 participation in the alleged rights deprivation . . . ."

Jones

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

See also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
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1 1989) ("Liability under section 1983 arises only upon a showing
2 of personal participation by the defendant.").
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Here, the FAC does not allege facts showing Sheriff Bill

4 Brown was personally involved in the violation of Plaintiff’s
5 constitutional rights.

Rather, the FAC again relies upon a

6 theory of supervisory liability.

FAC at 3.

Such allegations are

7 insufficient. Therefore, Plaintiff's individual capacity claim
8 against Sheriff Bill Brown must also be dismissed.
9
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LEAVE TO FILE SECOND AMENDED COMPLAINT
For the foregoing reasons, the FAC is subject to dismissal.

11 As the court is unable to determine whether amendment would be
12 futile, leave to amend is granted.

See Lucas v. Dep't of Corr.,

13 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).

However,

14 Plaintiff is advised that because any Second Amended Complaint
15 will be plaintiff’s second opportunity to amend her complaint to
16 rectify pleading deficiencies, the Court may not be disposed
17 toward another dismissal without prejudice and with leave to
18 amend.

“[A] district court’s discretion over amendments is

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

Ismail v.

21 County of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012)
22 (Valerie Baker Fairbank, J.) (quoting DCD Programs, Ltd. v.
23 Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987)); see also Zavala
24 v. Bartnik, 348 F. App’x 211, 213 (9th Cir. 2009) (“Dismissal
25 with prejudice was proper because Zavala was given two prior
26 opportunities to amend his complaint in order to correct the
27 deficiencies identified by the district court but failed to do
28 so.”).
8

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Accordingly, IT IS ORDERED THAT:

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1)

On or before March 17, 2015, Plaintiff may file a

3 Second Amended Complaint (“SAC”) to attempt to cure the
4 deficiencies discussed above.

The Clerk of Court is directed to

5 mail Plaintiff a blank Central District civil rights complaint
6 form to use for filing the SAC, which plaintiff is encouraged to
7 utilize.
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2)

If Plaintiff chooses to file a SAC, Plaintiff must

9 clearly designate on the face of the document that it is the
10 "Second Amended Complaint," it must bear the docket number
11 assigned to this case, and it must be retyped or rewritten in its
12 entirety, preferably on the court-approved form.

The SAC must be

13 complete in and of itself, without reference to the original
14 complaint or any other pleading, attachment or document.
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An amended complaint supersedes the preceding complaint.

16 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

After

17 amendment, the court will treat all preceding complaints as
18 nonexistent.

Id.

Because the court grants Plaintiff leave to

19 amend as to all his claims raised here, any claim that was raised
20 in a preceding complaint is waived if it is not raised again in
21 the First Amended Complaint.

Lacey v. Maricopa Cnty., 693 F.3d

22 896, 928 (9th Cir. 2012).
23 ///
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Plaintiff is admonished that if she fails to timely file a

2 sufficient SAC, the Court will recommend that this action be
3 dismissed with prejudice on the grounds set forth above and/or
4 for failure to diligently prosecute.
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7 DATED: March 3, 2015
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HON. KENLY KIYA KATO
U.S. MAGISTRATE JUDGE

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