Kevin Taylor v. Kelly Boyd et al

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Complaint (Prisoner Civil Rights), 1 . (SEE ORDER FOR DETAILS) (Attachments: # 1 CIVIL RIGHTS COMPLAINT FORM, # 2 NOTICE OF DISMISSAL) (dts)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 Case No. CV 17-0779-ODW (KK) KEVIN TAYLOR, Plaintiff, 11 12 13 14 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND KELLY BOYD, ET AL., Defendants. 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Kevin Taylor (“Plaintiff”), proceeding pro se and in forma 20 pauperis, has filed a Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 21 (“Section 1983”) alleging violations of his First, Eighth, Eleventh, and Fourteenth 22 Amendment rights. Plaintiff is suing defendants Kelly Boyd, in both his official and 23 individual capacity, and RMI International (“Defendants”). As discussed below, 24 the Court dismisses the Complaint with leave to amend for failure to state a claim. 25 II. 26 ALLEGATIONS IN COMPLAINT 27 28 On January 26, 2017, Plaintiff, who is in the custody of the California Department of Corrections and Rehabilitation at the Wasco State Prison, 1 constructively filed1 the Complaint pursuant to Section 1983, against defendants 2 RMI International and Kelly Boyd. ECF Docket No. (“Dkt.”) 1, Compl. 3 Plaintiff’s claims appear to arise form an incident that occurred on private property 4 by a private actor. According to the Complaint, defendant RMI International, a 5 private security company, is responsible for security at Watts Towers, a private 6 property in Watts, California. Id. at 1. Defendant Boyd, an employee of RMI 7 International, was responsible for security at Watts Towers on the day of the 8 alleged incident. Id. On October 7, 2016, defendant Boyd allegedly “falsely accused [Plaintiff ] of 9 10 commit[t]ing a the[]ft which took place near defendants station of work at the 11 Watts Towers.” Id. at 2. Plaintiff alleges defendant Boyd “willfully went beyond 12 the call of his obligated duties and took it upon himself to misuse his authority as a 13 security guard by using brut[e] force on [Plaintiff].” Id. Plaintiff states defendant 14 Boyd “caused Plaintiff pain, suffering, and plaintiff experienced cruel and unusual 15 punishment by being sever[e]ly beaten by defendant.” Id. Plaintiff further claims 16 “[b]y injuring [Plaintiff] with physical violence for no apparent reason, [defendant 17 Boyd] was retaliating against [Plaintiff] for personal[] benefit.” Id. Ultimately, Plaintiff alleges defendant RMI International, “is legally liable 18 19 for the actions of their employee’s illegal actions.” Id. at 3. Accordingly, Plaintiff 20 seeks compensatory and punitive damages for his injuries. 21 III. 22 STANDARD OF REVIEW 23 As Plaintiff is proceeding in forma pauperis, the Court must screen the 24 Complaint and is required to dismiss the case at any time if it concludes the action 25 is frivolous or malicious, fails to state a claim on which relief may be granted, or 26                                                                   27 28 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 2 1 1 seeks monetary relief against a defendant who is immune from such relief. 28 2 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b); see Barren v. Harrington, 152 F.3d 3 1193, 1194 (9th Cir. 1998). 4 In determining whether a complaint fails to state a claim for screening 5 purposes, the Court applies the same pleading standard from Rule 8 of the Federal 6 Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to 7 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 8 668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a 9 “short and plain statement of the claim showing that the pleader is entitled to 10 11 relief.” Fed. R. Civ. P. 8(a)(2). A complaint may be dismissed for failure to state a claim “where there is no 12 cognizable legal theory or an absence of sufficient facts alleged to support a 13 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007) 14 (citation omitted). In considering whether a complaint states a claim, a court must 15 accept as true all of the material factual allegations in it. Hamilton v. Brown, 630 16 F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as true 17 “allegations that are merely conclusory, unwarranted deductions of fact, or 18 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th 19 Cir. 2008) (citation omitted). Although a complaint need not include detailed 20 factual allegations, it “must contain sufficient factual matter, accepted as true, to 21 ‘state a claim to relief that is plausible on its face.’” Cook v. Brewer, 637 F.3d 22 1002, 1004 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 23 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it “allows the 24 court to draw the reasonable inference that the defendant is liable for the 25 misconduct alleged.” Id. (citation omitted). 26 “A document filed pro se is to be liberally construed, and a pro se complaint, 27 however inartfully pleaded, must be held to less stringent standards than formal 28 pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 3 1 2008) (citations and internal quotation marks omitted). “[W]e have an obligation 2 where the p[laintiff] is pro se, particularly in civil rights cases, to construe the 3 pleadings liberally and to afford the p[laintiff] the benefit of any doubt.” Akhtar v. 4 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation omitted). If the court finds the complaint should be dismissed for failure to state a 5 6 claim, the court has discretion to dismiss with or without leave to amend. Lopez v. 7 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted 8 if it appears possible the defects in the complaint could be corrected, especially if 9 the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 10 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint 11 cannot be cured by amendment, the court may dismiss without leave to amend. 12 Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th 13 Cir. 2009). 14 IV. 15 DISCUSSION 16 A. PLAINTIFF’S SECTION 1983 CLAIM AGAINST DEFENDANTS 17 BOYD AND RMI INTERNATIONAL MUST BE DISMISSED 18 (1) 19 In order to state a claim for a civil rights violation under Section 1983, a 20 plaintiff must allege that a particular defendant, acting under color of state law, 21 deprived plaintiff of a right guaranteed under the United States Constitution or a 22 federal statute. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 23 2250, 101 L. Ed. 2d 40 (1988). Thus, private parties cannot generally be held liable 24 under Section 1983. See Monroe v. Pape, 365 U.S. 167, 172, 81 S. Ct. 473, 5 L. Ed. 25 2d 492 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 26 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). A private party must be a willful participant in 27 joint action with the State or its agents in order to be sued under Section 1983. See 28 Dennis v. Sparks, 449 U.S. 24, 27-28, 32, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980) APPLICABLE LAW 4 1 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 2 142 (1970); United States v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 16 L. Ed. 2d 3 267 (1966)). 4 (2) ANALYSIS 5 Here, Plaintiff attempts to sue defendant Taylor, a private person, and 6 defendant RMI International, the private party that employs him, under Section 7 1983. However, Plaintiff fails to allege any joint action with the state or its agents. 8 See Dennis, 449 U.S. at 27-28. Thus, Plaintiff’s Section 1983 clam must be 9 dismissed. 10 V. 11 LEAVE TO FILE A FIRST AMENDED COMPLAINT 12 For the foregoing reasons, the Complaint is subject to dismissal. As the 13 Court is unable to determine whether amendment would be futile, leave to amend 14 is granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 15 curiam). 16 17 18 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the service date of this Order, Plaintiff choose one of the following two options: 1. Plaintiff may file a First Amended Complaint to attempt to cure the 19 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a 20 blank Central District civil rights complaint form to use for filing the First 21 Amended Complaint, which the Court encourages Plaintiff to use. 22 If Plaintiff chooses to file a First Amended Complaint, Plaintiff must clearly 23 designate on the face of the document that it is the “First Amended Complaint,” it 24 must bear the docket number assigned to this case, and it must be retyped or 25 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 26 include new defendants or new allegations that are not reasonably related to the 27 claims asserted in the Complaint. In addition, the First Amended Complaint must 28 5 1 be complete without reference to the Complaint or any other pleading, attachment, 2 or document. An amended complaint supersedes the preceding complaint. Ferdik v. 3 4 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will 5 treat all preceding complaints as nonexistent. Id. Because the Court grants 6 Plaintiff leave to amend as to all his claims raised here, any claim raised in a 7 preceding complaint is waived if it is not raised again in the First Amended 8 Complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). 2. 9 Alternatively, Plaintiff may voluntarily dismiss the action without 10 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court 11 is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 12 encourages Plaintiff to use. 13 The Court advises Plaintiff that it generally will not be well-disposed toward 14 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 15 that continues to include claims on which relief cannot be granted. “[A] district 16 court’s discretion over amendments is especially broad ‘where the court has 17 already given a plaintiff one or more opportunities to amend his complaint.’” 18 Ismail v. County of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012) (citations 19 omitted); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a First 20 Amended Complaint with claims on which relief cannot be granted, the First 21 Amended Complaint will be dismissed without leave to amend and with 22 prejudice. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 Plaintiff is explicitly cautioned that failure to timely file a First 2 Amended Complaint will result in this action being dismissed with prejudice 3 for failure to state a claim, prosecute and/or obey Court orders pursuant to 4 Federal Rule of Civil Procedure 41(b). 5 6 7 8 Dated: February 22, 2017 HONORABLE KENLY KIYA KATO United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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