Marvin Louis Lowery v. City of Los Angele et al

Filing 10

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Jean P. Rosenbluth. If Plaintiff desires to pursue his claims, he is ORDERED to file a second amended complaint within 28 days of the date of this order. (See document for details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARVIN LOUIS LOWERY JR.,
Plaintiff,

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v.

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CITY OF LOS ANGELES et al.,

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Defendants.

) Case No. CV 18-9644-R (JPR)
)
)
) ORDER DISMISSING FIRST AMENDED
) COMPLAINT WITH LEAVE TO AMEND
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On November 15, 2018, Plaintiff filed pro se what the Court

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construed as a civil-rights action under 42 U.S.C. § 1983.

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was subsequently granted leave to proceed in forma pauperis.

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December 19, 2018, the Court dismissed the Complaint under 28

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U.S.C. § 1915(e) with leave to amend, advising Plaintiff of the

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availability of help from one of the federal “pro se” clinics in

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this District.

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Complaint.

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arrest at the Westwood branch of the Los Angeles Public Library

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on June 21, 2018.

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He
On

On January 14, 2019, he filed a First Amended

His claims arise from a warrantless misdemeanor

After screening the FAC under § 1915(e)(2), the Court finds
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that its allegations still fail to state a claim upon which

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relief might be granted.

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Plaintiff can state an actionable claim under § 1983, in light of

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his pro se status the Court dismisses the FAC with leave to amend

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to afford him one last opportunity to remedy its deficiencies.

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See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en

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banc) (holding that pro se litigant must be given leave to amend

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complaint unless it is absolutely clear that deficiencies cannot

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be cured).

Although it does not appear that

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If Plaintiff desires to pursue any of his claims, he is

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ORDERED to file a second amended complaint within 28 days of the

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date of this order, remedying the deficiencies discussed below.

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He is warned that further failure to cure the below-noted defects

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may result in dismissal of his lawsuit.1

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Life Ins., 651 F.2d 671, 674 (9th Cir. 1981) (affirming dismissal

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of amended complaint that was “equally [deficient] as the initial

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complaint”); Mitchell v. Powers, 411 F. App’x 109, 110 (9th Cir.

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2011) (affirming dismissal of pro se plaintiff’s amended

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complaint with prejudice for containing “same deficiencies as the

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original complaint”).

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See Nevijel v. N. Coast

ALLEGATIONS OF THE FAC
The FAC consists of a three-page discussion of the
undersigned’s previous screening order followed by what is

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Plaintiff may, of course, choose to stand on his claims as
pleaded rather than amend them. See Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1063-64 (9th Cir. 2004). But that does not obligate
the Court to order his complaint served; rather, the Court may
consider an “election not to amend at face value, enter[] a final
judgment dismissing all claims with prejudice, and allow[]”
Plaintiff to seek immediate appellate review. Id. at 1064.
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apparently a verbatim copy of the original Complaint.

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Compl. at 4-16, with FAC at 6-19.)

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not repeat the Complaint’s factual allegations, which it

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summarized in detail in its December 19 order.

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(Compare

Accordingly, the Court does

Plaintiff again sues the City of Los Angeles and the Los

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Angeles Public Library.

(FAC at 1, 4, 7-8.)

He does not name

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any individuals as Defendants, although his allegations mention

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librarian Christy Carr, another librarian, several police

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officers, and various other people who he contends were involved

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in some or all of the events giving rise to his lawsuit.

(See,

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e.g., id. at 4, 15, 17, 18 & Ex. D at 33, 36.)

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of action for false arrest under the Fourth Amendment (FAC at

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15),2 “[f]alse [i]mprisonment” (id. at 16), and “[m]ental

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[a]nguish” (id. at 16-17).

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the June 21, 2018 arrest and detention and not the suspension

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letter or any later removal from the library premises.

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e.g., id. at 10 (“The major aspect of this complaint is the basis

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behind that librarian’s ‘Citizen’s Arrest [on June 21, 2018].’”);

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see also, e.g., id. at 4 (Plaintiff sues because “sitting in a

He brings causes

His claims apparently arise only from

(See,

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In his three-page preamble to the FAC, Plaintiff repeatedly
asserts that he is not bringing any “Civil Rights” claims (FAC at
4) and that he sues only under various state Government Code
provisions (id. at 6).
But when he lists his actual causes of
action, he indicates that his false-arrest claim asserts a
“[v]iolation of the Fourth Amendment.” (Id. at 15.) Of course, if
Plaintiff truly sues only under state law, this Court lacks
jurisdiction over his claims. See 28 U.S.C. §§ 1331-32; Kokkonen
v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)
(federal courts’ jurisdiction limited to that authorized by
Constitution and statute).
The Court liberally construes
Plaintiff’s first claim as arising under § 1983. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (pro se filings should
be liberally construed).
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library, sewing a trucker jacket, [and] ruminating at an

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acceptable level is legal and should not warrant a handcuff laden

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expulsion”).)

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He seeks $250,000 in damages and the release of various

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documents allegedly subject to the Freedom of Information Act, 5

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U.S.C. § 552, and certain provisions of the California Public

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Records Act, Government Code sections 6250-70 and 6275-76.48.

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(See FAC at 17.)3

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STANDARD OF REVIEW
A complaint may be dismissed as a matter of law for failure

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to state a claim “where there is no cognizable legal theory or an

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absence of sufficient facts alleged to support a cognizable legal

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theory.”

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1035, 1041 (9th Cir. 2010) (as amended) (citation omitted);

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accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008).

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considering whether a complaint states a claim, a court must

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generally accept as true all the factual allegations in it.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown,

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630 F.3d 889, 892-93 (9th Cir. 2011).

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as true, however, “allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences.”

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re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)

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(citation omitted); see also Shelton v. Chorley, 487 F. App’x

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388, 389 (9th Cir. 2012) (finding that district court properly

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dismissed civil-rights claim when plaintiff’s “conclusory

Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d

In

The court need not accept

In

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Some of the documents Plaintiff seeks, such as the “G4S
Security Contract Information” (FAC at 17), do not appear to be
subject to those provisions, however.
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allegations” did not support it).

Although a complaint need not

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include detailed factual allegations, it “must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief

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that is plausible on its face.’”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Yagman v.

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Garcetti, 852 F.3d 859, 863 (9th Cir. 2017).

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plausible when it “allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct

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alleged.”

Iqbal, 556 U.S. at 678 (quoting

Iqbal, 556 U.S. at 678.

A claim is facially

“A document filed pro se is

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‘to be liberally construed,’ and ‘a pro se complaint, however

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inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers.’”

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U.S. 89, 94 (2007) (per curiam) (citations omitted).

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Erickson v. Pardus, 551

DISCUSSION
I.

The Court Lacks Subject-Matter Jurisdiction over This Action
Plaintiff sued Defendants in state court in August 2018

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based on his “arrest,” “expulsion” from the library, and

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“fraudulent suspension letter.”

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at 25, 30 & Ex. M.)

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dismissed Plaintiff’s lawsuit.

(See, e.g., FAC at 5; id., Ex. D

On October 10, 2018, that court evidently
(See FAC at 5; id., Ex. N.)4

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The superior court’s website still lists it as “[p]ending,”
however. See Online Servs., Super. Ct. of Cal., Cnty. of L.A.,
http://www.lacourt.org/casesummary/ui/index.aspx?casetype=civil
(search for case number BC716638) (last visited Feb. 7, 2019).
Plaintiff does not allege whether he filed or attempted to file any
appeal in any state court. A search of the California appellate
courts’ website yields no evidence that he did. See Cal. App. Cts.
Case Info., http://appellatecases.courtinfo.ca.gov (searches for
“Marvin” with “Lowery” in second district and supreme court) (last
visited Feb. 7, 2019).
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Under the Rooker–Feldman5 line of cases, “lower federal courts

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are without subject matter jurisdiction to review state court

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decisions, and state court litigants may therefore only obtain

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federal review by filing a petition for a writ of certiorari in

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the Supreme Court of the United States.”

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of Supreme Ct., 410 F.3d 602, 606 (9th Cir. 2005) (as amended).

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“To determine whether the Rooker–Feldman bar is applicable, a

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district court first must determine whether the action contains a

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forbidden de facto appeal of a state court decision.”

Mothershed v. Justices

Bell v.

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City of Boise, 709 F.3d 890, 897 (9th Cir. 2013).

“A de facto

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appeal exists when ‘a federal plaintiff asserts as a legal wrong

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an allegedly erroneous decision by a state court, and seeks

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relief from a state court judgment based on that decision.’”

Id.

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(quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)).

If

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the action contains a de facto appeal, a district court is barred

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from deciding not only the issues adjudicated by the state court

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but also any other issues that are “inextricably intertwined”

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with the state court’s decision.

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see D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983).

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Rooker-Feldman applies even when the challenge to the state

Id.; Noel, 341 F.3d at 1157-58;

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court’s actions involves federal constitutional issues.

Feldman,

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460 U.S. at 484-86; Dubinka v. Judges of Super. Ct., 23 F.3d 218,

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221 (9th Cir. 1994).

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plaintiff from presenting a generally applicable legal challenge

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to a state statute in federal court, even if that statute has

“The doctrine does not, however, prohibit a

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See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct.
of Appeals v. Feldman, 460 U.S. 462 (1983).
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previously been applied against him in state court litigation.”

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Mothershed, 410 F.3d at 606.

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does not have jurisdiction to review constitutional challenges to

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a state court’s decision, the court does have jurisdiction over a

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general constitutional challenge that does not require review of

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a final state court decision in a particular case.”

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F.3d at 221.

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“Although a federal district court

Dubinka, 23

Plaintiff expressly states that the “disposal” of his statecourt suit “brought [him] to file this lawsuit in Federal Court

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on November 15, 2018,” after he had also “fil[ed] a complaint

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about improper conduct” by the superior-court judge who

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apparently sustained the demurrer and dismissed his case.

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at 5; see also id., Exs. N-O.)

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that he intends this suit as a de facto appeal of an adverse

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state judgment, the exhibits attached to the FAC show that

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Plaintiff’s superior-court action sued the same defendants based

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on the same conduct and that he seeks relief from what was —

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apparently — an unfavorable outcome there.6

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Exs. D (Plaintiff’s series of emails to City Attorney Mike Feuer

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indicating that state case arose from same conduct as that

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alleged in FAC), L (meet-and-confer email from deputy city

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attorney to Plaintiff regarding state case), M (defendant’s

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demurrer in state court quoting state complaint making same

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allegations as those of FAC), N (superior-court minute order

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dismissing state case based on demurrer), O (Plaintiff’s

(FAC

Even had he not openly admitted

(See, e.g., id.,

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Plaintiff did not attach
complaint to the federal one.
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a

copy

of

his

state-court

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judicial-misconduct complaint against state-court judge, accusing

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her of, among other things, “perpetrat[ing]” a “great injustice”

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against him by sustaining demurrer and thereby “ensur[ing]” that

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“if someone is sitting in a library,” “adjacent to the . . .

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children’s section,” “sewing a newly acquired trucker jacket,”

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and “ruminating about present and past experiences,” he will be

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“in strict danger of being arrested and imprisoned for patroning

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[sic] a public library”).)

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Thus, the FAC is likely barred by Rooker-Feldman and the

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Court lacks jurisdiction to entertain it.

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II.

The FAC Still Does Not State Any § 1983 Claim

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Even if Plaintiff could overcome the Rooker-Feldman bar,

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because he realleges the same deficient allegations as in the

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original Complaint, the FAC fails to state any cognizable civil-

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rights claim for the reasons stated in the Court’s December 19

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order.

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As the Court previously explained to Plaintiff, his Fourth

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Amendment theory fails because — as he now evidently concedes

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(see FAC at 5-6) — probable cause existed to arrest him for

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violating Penal Code section 602.1(b).

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assertions (see id. at 4, 5-6), it does not matter that he may

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have been cited for violating section 602(q), which does not

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appear to apply to his alleged conduct.

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543 U.S. 146, 153-54 (2004) (offense establishing probable cause

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for valid arrest need not be same or even “closely related” to

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offense cited by officer).

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subsequently charged with an updated crime describing anything

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Christy Carr or the Officers noted on June 21, 2018.”

Contrary to his

See Devenpeck v. Alford,

Nor does it matter that he was “never

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(FAC at

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6.)

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validity of the arrest does not depend on whether the suspect

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actually committed a crime.”).

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existed, Plaintiff cannot state a constitutional claim based on

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his less-than-three-hour detention.

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Joliet, 137 S. Ct. 911, 918 (2017) (valid probable-cause

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determination provides “constitutionally adequate justification”

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for detention before legal process has begun).

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See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (“The

Moreover, because probable cause

See Manuel v. City of

As the Court also previously explained to Plaintiff, he

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cannot state any municipal-liability claim against the City or

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its library — the only two named Defendants7 — because he has not

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adequately pleaded any constitutional deprivation in the first

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place.

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municipal liability under § 1983 absent showing of constitutional

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injury).

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rights claim at all (see supra note 2), that claim still fails.

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See City of L.A. v. Heller, 475 U.S. 796, 799 (1986) (no

To the extent he intends to make any federal civil-

Because municipal liability for a Fourth Amendment violation

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evidently remains Plaintiff’s only federal-law theory of relief,

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the Court defers screening of his state-law claims until he has

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It is not clear that the library is a separately suable
entity. See Cal. Gov’t Code §§ 945 (“[a] public entity may sue or
be sued”), 811.2 (“public entity” defined to include “a county,
city, district, public authority, public agency, and any other
political subdivision or public corporation in the state”); see
also, e.g., Payne v. Cnty. of Calaveras, No. 1:17-cv-00906-DAD-SKO,
2018 WL 6593347, at *2 (E.D. Cal. Dec. 14, 2018) (county jail not
separately suable entity under state Government Code provisions;
county was proper defendant) (collecting cases); Waters v.
Hollywood Tow Serv., No. CV 07-7568 CAS (AJW), 2010 WL 11465238, at
*18 (C.D. Cal. July 27, 2010) (city attorney’s office not
separately suable entity from city under relevant code provisions),
accepted by 2010 WL 11465405 (C.D. Cal. Aug. 31, 2010).
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adequately pleaded a federal cause of action.

See Herman Family

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Revocable Tr. v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001).8

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III. Plaintiff’s Public-Records Requests Are Still Premature or

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Not Cognizable Under § 1983

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Plaintiff again seeks “discovery” under FOIA and state

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public-records statutes.

(See FAC at 17-18.)

To the extent his

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request is construed as seeking a discovery order from the Court,

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that request is again denied as premature.

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complaints is ordered served and any Defendant files an answer,

If one of Plaintiff’s

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the Court may thereafter issue an order allowing discovery to

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begin.

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The Court reiterates that if Plaintiff wishes to make a

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request under FOIA or the California Public Records Act, he may

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do so using the procedures described in those statutes and does

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not need the Court’s permission.

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Cal. Gov’t Code § 6253; see also U.S. Dep’t of Justice, FOIA.gov,

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https://www.foia.gov (providing portal for users to create FOIA

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request online); Cal. Att’y Gen.’s Off., Summary of the

See generally 5 U.S.C. § 552;

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The Court again notes, however, that in bringing a statelaw tort claim against a public entity or employee, a plaintiff
must plead compliance with the California Tort Claims Act or the
claim is subject to dismissal. See State v. Super. Ct. (Bodde), 32
Cal. 4th 1234, 1239, 1245 (2004); Mangold v. Cal. Pub. Utils.
Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995).
This requirement
applies in federal court. See Karim-Panahi v. L.A. Police Dep’t,
839 F.2d 621, 627 (9th Cir. 1988). The FAC alleges that Plaintiff
“accuse[d]” Defendants “under the California Tort Claims Act” on
January 14, 2018. (FAC at 7.) Because that date is five months
before the conduct in the FAC supposedly occurred, Plaintiff cannot
possibly have satisfied the claims-presentation requirement on that
date for the torts alleged in this action. He is again warned that
failure to allege compliance with the Tort Claims Act could lead to
dismissal of his state-law tort claims.
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California Public Records Act of 2004 (Aug. 2004), http://

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ag.ca.gov/publications/summary_public_records_act.pdf.

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*********************
If Plaintiff desires to pursue his claims, he is ORDERED to

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file a second amended complaint within 28 days of the date of

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this order, remedying the deficiencies discussed above.

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should bear the docket number assigned to this case, be labeled

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“Second Amended Complaint,” and be complete in and of itself,

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without reference to the original Complaint, FAC, or any other

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The SAC

pleading, attachment, or document.
Alternatively, Plaintiff may elect to stand on his claims as

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pleaded.

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(9th Cir. 2004); (see also supra note 1).

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option, he must file a notice with the Court within 28 days of

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the date of this order clearly indicating as much.

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attempt to do both by filing a verbatim copy of the Complaint or

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FAC in the guise of an amended pleading.

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See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-64
Should he choose that

He may not

Plaintiff is again advised that he may wish to seek help

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from one of the federal “pro se” clinics in this District.

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clinics offer free on-site information and guidance to

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individuals who are representing themselves (proceeding pro se)

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in federal civil actions.

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firms, not by the Court.

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located in Suite 170 of the Edward R. Roybal Federal Building and

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U.S. Courthouse, 255 East Temple Street, Los Angeles, CA 90012.

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It is open Mondays, Wednesdays, and Fridays, 9:30 a.m. to 12 p.m.

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and 2 to 4 p.m.

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clinics’ website, http://prose.cacd.uscourts.gov/los-angeles.

The

They are administered by nonprofit law
The clinic closest to Plaintiff is

Useful information is also available on the

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Plaintiff is warned that if he fails to timely file a

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sufficient SAC, the Court may dismiss this action on the grounds

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set forth above or for failure to comply with court orders or to

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diligently prosecute.9

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DATED: February 7, 2019
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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If Plaintiff believes this order erroneously disposes of
any of his claims, he may file objections with the district judge
within 20 days of the date of the order. See Bastidas v. Chappell,
791 F.3d 1155, 1162 (9th Cir. 2015) (“When a magistrate judge
believes she is issuing a nondispositive order, she may warn the
litigants that, if they disagree and think the matter dispositive,
they have the right to file an objection to that determination with
the district judge.”).
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