Don Martin v. City of Los Angeles et al

Filing 29

MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. The Second Amended Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty ( 30) days from the date of this Memorandum and Order within which to file a Third Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. P laintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DON MARTIN,

Case No. CV 16-2655 TJH (SS)
Plaintiff,

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v.

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MEMORANDUM AND ORDER DISMISSING
SECOND AMENDED COMPLAINT WITH

CITY OF LOS ANGELES, et al.,

LEAVE TO AMEND

Defendants.

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I.

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INTRODUCTION

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On February 13, 2018, Plaintiff Don Martin (“Plaintiff”), a

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California resident proceeding pro se, filed a Second Amended

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Complaint, alleging violations of his civil rights pursuant to 42

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U.S.C. § 1983.

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City

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property

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occasions.

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of

Los
to

(“SAC,” Dkt. No. 28).
Angeles

be

and

various

unlawfully

(See SAC at 2-8).

seized

Plaintiff claims that the

city

employees

caused

and

destroyed

on

his

several

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Under

Federal

Rule

of

Civil

Procedure

12(b)(6),

a

trial

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court may dismiss a claim sua sponte “where the claimant cannot

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possibly win relief.”

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986, 991 (9th Cir. 1987); see also Baker v. Director, U.S. Parole

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Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting

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the Ninth Circuit’s position in Omar and noting that such a sua

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sponte

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plaintiff’s rights and the efficient use of judicial resources”).

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When a plaintiff appears pro se in a civil rights case, the court

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must construe the pleadings liberally and afford the plaintiff

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the benefit of any doubt.

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Dep’t., 839 F.2d 621, 623 (9th Cir. 1988).

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interpretation to a pro se complaint, the court may not, however,

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supply essential elements of a claim that were not initially

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pled.

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268 (9th Cir. 1982).

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to amend the complaint unless it is “absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.”

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Karim-Panahi, 839 F.2d at 623 (citation and internal quotations

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omitted).

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DISMISSED with leave to amend.1

dismissal

“is

Omar v. Sea-Land Serv., Inc., 813 F.2d

practical

and

fully

consistent

with

Karim-Panahi v. Los Angeles Police
In giving liberal

Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266,

For

the

A court must give a pro se litigant leave

reasons

stated

below,

the

Complaint

is

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//

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//

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//

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A magistrate judge may dismiss a complaint with leave to
amend without the approval of a district judge. See McKeever v.
Block, 932 F.2d 795, 798 (9th Cir. 1991).
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II.

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FACTUAL ALLEGATIONS AND CLAIMS

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Plaintiff sues the City of Los Angeles (“the City”) and

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several

city

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Martinez,

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attorney; Cline, a police officer; “Doe One,” a police officer;

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and “Does Two-Ten,” city public works employees.

a

employees
city

in

their

councilwoman;

individual

Tamar

capacities:

Galatzan,

a

Nury

deputy

city

(SAC at 2-4).

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Plaintiff claims that Martinez, Galatzan and Does One-Ten

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violated his Fourth Amendment and Due Process rights by causing

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his property to be taken and destroyed.

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alleges that this occurred at a homeless encampment on Bessemer

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Street in Van Nuys, California on April 1 and May 23, 2014.

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at

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clothing, bedding, and other necessities of life.”

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alleges that on December 17, 2015, at a different Van Nuys street

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corner, the same Defendants took away in a dump truck Plaintiff’s

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“electronic equipment, stationery, bicycles, food, etc.”

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6).

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orders, Doe One had Plaintiff’s 1995 Dodge truck towed away,

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though “the officer knew there was no parking violation and no

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registration

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relief.

5).

The

lost

property

included

violation.”

(Id.).

(Id. at 9).

//

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“legal

materials,

He

(Id.
food,

(Id.).

He

(Id. at

He further claims that on February 7, 2016, on Martinez’s

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(Id. at 2, 5-8).

//

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Plaintiff

seeks

monetary

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III.

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DISCUSSION

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A.

Plaintiff Fails To State A Claim Against The City

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Plaintiff

attempts

to

state

a

claim

against

the

City.

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However, municipal entities, such as the City, may only be sued

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for constitutional torts committed by their officials according

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to an official policy, practice, or custom.

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Monell v. Dep't of

Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978).
specifically

rejected

governmental

liability

based

Monell
on

the

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doctrine

of

respondeat

superior.

Id.

at

691-94.

Thus,

a

government body cannot be held liable under section 1983 merely

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because it employs a tortfeasor.

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suing the City, he must identify some official municipal policy

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pursuant to which the actions of its representatives caused the

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injuries complained of.

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Id.

Insofar as Plaintiff is

Id. at 690-91; Lytle v. Carl, 382 F.3d

978, 982 (9th Cir. 2004).

As the Ninth Circuit has found, “there

must be a ‘widespread practice.’”

Marsh v. Cty. of San Diego,

680 F.3d 1148, 1159 (9th Cir. 2012) (quoting Davis v. City of
Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989)).

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Here,
deprivations

Plaintiff
occurred

asserts

generally

“according

to

that

official

the

alleged

custom

and

practice,” and that “similar actions are carried out every week

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by the City.”

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any

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facts

to

(SAC at 2).
show

that

However, Plaintiff fails to allege

Defendants’

actions

are

part

of

any

ongoing policy of the City, rather than being merely isolated
incidents.

Accordingly, Plaintiff’s claims against the City are

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dismissed with leave to amend.
B.

Plaintiff

Fails

To

State

A

Claim

Against

The

Named

Individual Defendants

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Because vicarious liability is inapplicable to section 1983

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suits,

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defendant, through the official’s own individual actions, has

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violated the Constitution.”

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(2009).

The

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personal

participation

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between the official’s conduct and the alleged constitutional

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violation.

“a

plaintiff

must

plaintiff

plead

each

Government-official

Ashcroft v. Iqbal, 556 U.S. 662, 676

must
or

that

establish

“a

either

sufficient

the

causal

official’s
connection”

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).

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Here, Plaintiff’s allegations against Martinez, Galatzan and

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Cline are conclusory and vague.

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Martinez “is responsible for orchestrating the seizures” of his

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property.

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“neighborhood

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deprivations of Plaintiff’s rights.”

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provide any facts showing how these Defendants orchestrated or

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set in motion the alleged deprivations.

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Officer

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false pretenses.”

(SAC

Cline

at

2).

prosecutor”

“order[ed]

He
for

He asserts that Councilwoman

states
the

seizures

(Id. at 3).

that

City,

Galatzan,

“set

in

(Id. at 3).

as

the

motion

the

He fails to

Moreover, he claims that

unlawfully

–

on

grounds

of

However, he omits Cline from the
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factual allegations, leaving no indication of what role Cline

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played in the incidents.

(See id. at 5-6).

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Absent

more
pled

specific
these

allegations,

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violating

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between any of their actions and any constitutional violations.

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Accordingly, Plaintiff’s claims against Martinez, Galatzan and

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Cline are dismissed with leave to amend.

rights

or

any

involvement

not

plausibly

civil

personal

has

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Plaintiff’s

Defendants’

Plaintiff

causal

in

connection

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C.

The Instant Complaint’s Remaining Allegations Fail To Comply
With Federal Rule of Civil Procedure 8

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Rule 8 requires that a pleading contain “a short and plain

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statement of the claim showing that the pleader is entitled to

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relief.”

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rather

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See Fed. R. Civ. P. 8.

than

a

blanket

Rule 8 requires a showing,

assertion,

of

entitlement

to

relief.

Factual allegations in a complaint satisfy the requirement of
providing

fair

notice

of

the

nature

grounds on which the claim rests.

of

the

claim,

Fed. R. Civ. P.

and

the

8(a)(2);

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Here,

Plaintiff

does

not

allegations to satisfy Rule 8.
Martinez,

Galatzan

and

Does

provide

sufficient

factual

He claims, for example, that

Two-Ten

unjustifiably

personal property on three different occasions.

seized

his

(SAC at 5-6).

However, aside from the dates, street locations and types of
property seized, he fails to allege any facts about the nature of
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these incidents.

As such, Plaintiff’s allegations do not show

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that there are plausible grounds for relief, nor do they provide

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enough facts for Defendants to properly respond to the claims.

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Moreover, Plaintiff’s claims appear to rest partly on the

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right to be protected against unlawful search and seizure — a

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fact-specific

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(1989)

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Amendment requires a careful balancing of ‘the nature and quality

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of the intrusion on the individual’s Fourth Amendment interests’

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against

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(some internal quotation marks omitted).

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to satisfy Rule 8, he must state a cognizable legal theory for an

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unlawful

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there are plausible grounds for relief.

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Because the Second Amended Complaint fails to satisfy Rule 8, it

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is dismissed with leave to amend.

inquiry.

(whether

the

a

Graham

“seizure

countervailing

seizure,

v.

is

Connor,

reasonable

governmental

providing

490

applicable

U.S.

under

interests

386,

the

at

396

Fourth

stake”)

In order for Plaintiff

facts

that

demonstrate

Iqbal, 556 U.S. at 668.

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D.

Substitute True Names for “Doe” Defendants

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Plaintiff fails to plead the names of the Doe Defendants.

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Plaintiff is responsible for obtaining the full name of each

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defendant named in any amended complaint.

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result

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defendants.

in

dismissal

of

claims

against

Failure to do so will
these

seven

“Doe”

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Accordingly, if Plaintiff does not know the full names of

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the Doe Defendants, he must promptly investigate to determine the
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true name of the defendant.

Plaintiff may then substitute the

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full names of those defendants who are inadequately identified in

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the current Complaint.

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IV.

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CONCLUSION

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For the reasons stated above, the Second Amended Complaint
is dismissed with leave to amend.2

If Plaintiff still wishes to

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pursue this action, he is granted thirty (30) days from the date

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of this Memorandum and Order within which to file a Third Amended

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Complaint.

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defects

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defendants or new allegations that are not reasonably related to

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the

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Complaint, if any, shall be complete in itself and shall bear

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both

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number assigned to this action.

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to any prior complaint.

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In any amended complaint, Plaintiff shall cure the

described

claims

the

above.

asserted

in

designation

Plaintiff

prior

“Third

shall

complaints.

Amended

not

The

Complaint”

include

Third

and

new

Amended

the

case

It shall not refer in any manner

Plaintiff shall limit his action only to

Plaintiff has another pending civil rights action in this
Court, which he initiated in 2012.
(See CV 12-0315 TJH (SS)).
Plaintiff notes, in his Second Amended Complaint, that he intends
to seek leave in the 2012 action to amend his pleading to add the
claims from the instant case and then dismiss this case.
(See
SAC at 9).
However, Plaintiff previously moved to consolidate
the two cases on May 8, 2017, and the Court denied the motions on
June 16, 2017.
(See CV 12-0315 TJH (SS), Dkt. Nos. 72, 74; CV
16-2655-TJH (SS), Dkt. Nos. 17, 19).
The Court found that
consolidation was not in the interests of justice because,
despite some overlap in Defendants and time periods, the two
actions are not fully co-extensive and are at different stages of
litigation. (CV 12-0315 TJH (SS), Dkt. No. 74 at 3; CV 16-2655TJH (SS), Dkt. No. 19 at 3).
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those Defendants who are properly named in such a complaint,

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consistent

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reminds Plaintiff that it may be more efficient to seek to amend

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his Prior Complaint with related claims, as opposed to initiating

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an entirely new action.

with

the

authorities

discussed

above.

The

Court

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In

any

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allegations

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claims.

amended
to

complaint,

those

operative

Plaintiff
facts

should

supporting

confine
each

of

his
his

Plaintiff is advised that pursuant to Federal Rule of

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Civil Procedure 8(a), all that is required is a “short and plain

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statement of the claim showing that the pleader is entitled to

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relief.”

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standard

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complaint,

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complaint, Plaintiff should make clear the nature and grounds for

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each claim and specifically identify the Defendants he maintains

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are liable for that claim.

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for which he cannot allege a proper factual basis.

Plaintiff
civil
a

is

rights
copy

of

strongly

complaint
which

encouraged

form

is

when

to

filing

attached.

In

utilize

the

any

amended

any

amended

Plaintiff shall not assert any claims

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Plaintiff is explicitly cautioned that failure to timely

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file

a

Third

Amended

Complaint,

or

failure

to

correct

the

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deficiencies described above, will result in a recommendation

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that this entire action be dismissed with prejudice for failure

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to prosecute and obey Court orders pursuant to Federal Rule of

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Civil Procedure 41(b).

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Plaintiff is further advised that if he no longer wishes to

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pursue this action, he may voluntarily dismiss it by filing a
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Notice of Dismissal in accordance with Federal Rule of Civil

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Procedure 41(a)(1).

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Plaintiff’s convenience.

A form Notice of Dismissal is attached for

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DATED:

March 12, 2018

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/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT
INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE
SUCH AS WESTLAW OR LEXIS.

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