Marvin Louis Lowery v. City of Los Angele et al

Filing 8

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

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On November 15, 2018, Plaintiff filed pro se a civil-rights

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action under 42 U.S.C. § 1983.

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to proceed in forma pauperis.

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warrantless misdemeanor arrest at the Westwood branch of the Los

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Angeles Public Library on June 21, 2018.

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He was subsequently granted leave
His claims arise from a

After screening the Complaint under 28 U.S.C. § 1915(e)(2),

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the Court finds that its allegations fail to state a claim upon

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which relief might be granted.

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that Plaintiff can state an actionable claim under § 1983, the

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Complaint is dismissed with leave to amend.

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203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (holding that

Although the Court is skeptical

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See Lopez v. Smith,

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pro se litigant must be given leave to amend complaint unless it

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is absolutely clear that deficiencies cannot be cured).

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

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file a first amended complaint within 28 days of the date of this

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order, remedying the deficiencies discussed below.

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If

ALLEGATIONS OF THE COMPLAINT
At about 12:30 p.m. on Thursday, June 21, 2018, Plaintiff

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“was sitting at the border of the general section and the

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children’s section” in the Westwood branch of the Los Angeles

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Public Library.

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warning that patrons who engage in disruptive behavior, do not

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follow rules, or do not leave the library when asked “will be

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subject to arrest and prosecution” under Penal Code section

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602.1(b).1

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Plaintiff “frequented th[e] [Westwood branch] library often and

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incurred minimal issue[s]” with staff and a “newly contracted”

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security company.

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(Compl. at 5-6.)

The library has a posted

(Id., Exs. B & C; see also Compl. at 4, 7.)

(Compl. at 5-6.)

“With a certain sensitivity” for “other patron[]s,”

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Plaintiff began to “engage[] with [his] daily audible ruminations

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at a hushed tone.”

(Id. at 6.)2

“For some reason,” that conduct

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That statute provides in relevant part that anyone who
“intentionally interferes with any lawful business carried on by
the employees of a public agency open to the public,” by
“obstructing or intimidating” those present or attempting to
transact business with the agency, “and who refuses to leave the
premises” upon request of an agency manager or supervisor or a
peace officer is guilty of a misdemeanor. See § 602.1(b).
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Plaintiff suffers from unspecified “extreme mental issues”
that cause “psychotic outbursts” and for which he takes
“psychotropic drug[s],” including Risperdal. (See Compl. at 6-7.)
He does not specifically allege that his “daily audible
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“aroused the attention of one of the librarians,” who approached

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Plaintiff and warned him that he could not talk on his cell

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phone.

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name (id.) but appears to identify her later as nondefendant

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Christy Carr (see id. at 8, 15).

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not on [his] cell phone” and “questioned her admonishment” by

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stating that his “tone was at an appropriate level considering

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where [he] was sitting.”

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“phone calls were not allowed to be taken within the library” and

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(Id.)

Plaintiff has “never been given” that librarian’s

He “informed her that [he] was

(Id. at 6.)

“went back to her station.”

The librarian stated that

(Id.)

Plaintiff, “[s]lightly agitated,” “continued with [his]

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audible ruminations.”

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out a needle and thread and “began to sew [his] newly acquired

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Levi’s [t]rucker [j]acket.”

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in the corner” until Los Angeles Police Department officers

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arrived.

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while sewing.

(Id.)

(Id.)

“As a coping mechanism,” he pulled

(Id.)

He “continued to sew quietly

He apparently continued to ruminate audibly

(See id.)

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The “admonishing librarian,” evidently accompanied by

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officers, “came to [Plaintiff’s] table” and “informed” him that

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he “was not allowed to continue to patron [sic]” the library “due

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to ignoring their policy on no phone calls.”

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“informed” the officers of “what [he has] written previously.”3

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(Id.)

(Id.)

He

The officers “talked to the librarian near her station” as

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ruminations” resulted from any mental-health problem, however.
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Plaintiff does not specifically allege what he told the
officers (see Compl. at 6), but the Court infers that he denied he
had been talking on a cell phone and may have said other things.

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3

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Plaintiff “watched from afar.”

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“inform[ed]” him that “if [he] continued to refuse to leave,” he

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would be “put under citizen’s arrest and escorted out of the

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building.”4

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told him to “pack his things.”

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packing, the librarian “came over again and stated that [he] was

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not allowed to continue patron[iz]ing the library that day,” and

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the LAPD officers “informed [him] again that if [he] refused to

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leave [he]’d be arrested for trespassing.”

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(Id.)

(Id.)

They then returned and

He “subsequently refused,” and the officers
(Id.)

After he had finished

(Id.)

Plaintiff “again refused” to leave, “was put in handcuffs[,]
(Id.)5

He was taken to a local

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and [was] escorted outside.”

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police station and detained before being “issued a ticket for the

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misdemeanor of [t]respassing” in violation of Penal Code section

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“602(q).”6

(Id.; see also id., Ex. A.)

Plaintiff was

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Plaintiff does not allege that he was asked to leave on any
previous occasion (see generally Compl. at 5-16) and contends that
the library’s suspension letter stating otherwise is “fraudulent”
(see id. at 8 & Ex. E).
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Plaintiff characterizes the incident as a citizen’s arrest
(see, e.g., Compl. at 6) by Carr or some other librarian (see id.
at 7), but it is unclear who actually arrested him and whether that
person was a police officer (compare id. at 6 (officers warned him
of possibility of trespassing arrest, and he was put in handcuffs
when he refused to leave), with id. at 8 (Complaint based on
librarian’s citizen’s arrest)).
The citation he was issued is
largely illegible and only partially filled out, but it appears to
list a “Ruiz” in a space for the name of the “[a]rresting or
[c]iting [o]fficer.” (See id., Ex. A.) A space below that for the
“[n]ame of [a]rresting [o]fficer, if different from [c]iting
[o]fficer,” has been left blank. (See id.)
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That statute provides in relevant part that anyone who
“refus[es] or fail[s] to leave a public building of a public
agency” upon request by a “guard, watchperson, or custodian” during
hours when the building is normally closed is guilty of misdemeanor
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traumatized by the experience and “consider[s] it a blessing that

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[he] was not hospitalized for a sixth time with as psychotic as

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[he] was.”

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trauma or discomfort from his arrest, handcuffing, or detention.

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(See generally id. at 6-15.)

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(Compl. at 7.)

He does not allege any physical

On an unspecified date, Plaintiff attempted to appear in
(Id. at 8; see also id.,

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court for the trespassing violation.

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Ex. A (citation with date of notice to appear in court

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illegible).)

But he couldn’t find his name on the docket and

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discovered later that the city attorney had decided not to file a

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case against him.

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information, apparently an employee of the city attorney’s

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office, also “implied that it was in [his] best interest” to

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“avoid that library.”

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(Compl. at 8.)

“The woman” who gave him that

(Id.)

On August 6, 2018, Plaintiff filed suit in Los Angeles

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County Superior Court against the City of Los Angeles and its

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public library, bringing claims of false arrest and imprisonment

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arising from the June 21, 2018 incident.

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M.)

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Super. Ct. of Cal., Cnty. of L.A., http://www.lacourt.org/

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casesummary/ui/index.aspx?casetype=civil (search for case number

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BC716638) (last visited Dec. 18, 2018), although Plaintiff

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appears to believe it has been dismissed (see Compl., Ex. N at 52

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(alleging that on Oct. 10, 2018, state-court judge sustained

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City’s demurrer and dismissed case without leave to amend).

(See, e.g., Compl., Ex.

That suit evidently remains pending, see Online Servs.,

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trespassing “if the surrounding circumstances would indicate to a
reasonable person that [the accused] has no apparent lawful
business to pursue.” Cal. Penal Code § 602(q).
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Despite the unidentified woman’s advice, Plaintiff

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“attempted to patron [sic]” the Westwood branch library on August

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16, 2018, and “was summarily turned away” by Carr and a security

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guard.

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him a “[s]uspension letter,” which contained incorrect or

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“fraudulent” information.

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specifically, the letter, dated July 17, 2018, asserted that an

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unidentified library patron, apparently later identified as

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Plaintiff, had directed threats and profanity at library staff

(Compl. at 8.)

They and another “unnamed librarian” gave

(Id.; see also id., Ex. E.)

More

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and patrons on May 4 and 17, 2018, and then had refused to leave.

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(See id., Ex. E at 1.)7

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library privileges until October 18, 2018.

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letter does not contain Plaintiff’s name or any other identifying

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information, nor does it mention the June 21, 2018 incident.

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(See generally id.)

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The letter suspended the person’s
(See id. at 2.)

The

Plaintiff was “escorted” out of the library by the LAPD

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shortly after being presented with the letter.

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He does not allege whether he was detained or cited for or

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charged with any Penal Code violation at that time.

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Evidently later that same day, he emailed nondefendant City

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Attorney Mike Feuer to “inform[] the City as to what was

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transpiring at this rogue library” but received no immediate

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response.

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to Feuer regarding civil case and suspension letter), 27 (email

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from Plaintiff to Feuer regarding suspension letter, “pending

(Compl. at 8.)

(Id.)

(Id.; see also id., Ex. D at 24 (email from Plaintiff

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For nonconsecutively paginated documents, the Court uses the
pagination generated by its Case Management/Electronic Case Filing
System.
6

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litigation,” and Plaintiff’s intent to visit library again when

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it opened).)

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Plaintiff went to the library again at about 9:30 a.m. on

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August 17, 2018; “[a]gain [the] LAPD was called,” and he was

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escorted out at about 12:45 p.m.

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allege whether he was asked to leave by anyone or if he was

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detained by the LAPD, but he was issued a 24-hour trespassing

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warning under Los Angeles Municipal Code § 41.24(d).8

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& Ex. G.)

(Compl. at 8-9.)

He does not

(Id. at 9

He again emailed Feuer (Compl. at 9 & Ex. D at 30) but

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apparently received no response.

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at about 3 p.m., “after the 24 hours had passed,” Plaintiff again

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arrived at the Westwood branch library and “was escorted out” by

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the LAPD.

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the [f]raudulent letter to state why [he] was excluded from the

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library.”

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library or what he was doing or intended to do there.

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Plaintiff “left without issue” and “sent a final email” to Feuer.

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(Id.; see also id., Ex. D at 33.

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23, 2018 email to Feuer complaining that LAPD officer had warned

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Plaintiff that he would be arrested for trespassing if he

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returned to Westwood branch library).)

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allege specific facts as to any response to those emails.

(Compl. at 9.)

(Id.)

On Saturday, August 18, 2018,

“The librarians continued to reference

He does not allege how long he was at the
This time,

But see id., Ex. D. at 34 (Aug.

The Complaint does not
(See

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That provision authorizes the arrest of anyone who enters
or is present at “private property open to the general public”
within 24 hours of having been advised “to leave and not return”
and warned by the owner or his agent of the possibility of arrest
for noncompliance. L.A. Mun. Code § 41.24(d).
7

1
2

generally id. at 5-16.)9
Plaintiff sues the City of Los Angeles and the Los Angeles

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Public Library.

(Compl. at 1, 4-5.)

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individuals as Defendants.

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for false arrest under the Fourth Amendment (id. at 12-13),

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“[f]alse [i]mprisonment” (id. at 13),10 and a state-law claim for

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“[m]ental [a]nguish” (id. at 13-14).

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only from the June 21, 2018 arrest and detention and not the

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suspension letter or any later removal from the library premises.

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(See, e.g., id. at 7 (“[The major aspect of this complaint is the

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basis behind that librarian’s ‘Citizen’s Arrest [on June 21,

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2018].’”); see also generally id. at 4-6, 13-14.)

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$250,000 in damages and the release of various government

(See id.)

He does not name any
He brings causes of action

His claims apparently arise

He seeks

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On August 28, 2018, Deputy City Attorney Matthew McAleer
sent Plaintiff a “meet and confer” email informing him that the
City intended to file a demurrer to his lawsuit and asking him to
voluntarily dismiss his case.
(See Compl., Ex. L.)
Plaintiff
indicates that he received no response to the “7 emails” he sent to
Feuer and that he “lost access to the email [address]” where
McAleer sent the “meet and confer” email. (See Compl., Ex. D at
21.)
10

Plaintiff’s second cause of action does not specifically
allege any constitutional deprivation, and the cases it cites do
not appear to be relevant to any § 1983 claim; one is an FTCA case
applying New York law, and the other is a Puerto Rico Supreme Court
case applying Puerto Rico law. (See Compl. at 11, 13 (citing Ayala
v. San Juan Racing Corp., 12 P.R. Offic. Trans. 1012, 1021 (1982),
and Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).)
False imprisonment is a state-law tort.
See Slama v. City of
Madera, No. 1:08-cv-810-AWI GSA., 2008 WL 5246006, at *2 (E.D. Cal.
Dec. 17, 2008); Lyons v. Fire Ins. Exch., 161 Cal. App. 4th 880,
888 (2008) (listing elements of tortious false imprisonment under
California law).
But even liberally construed as a Fourth
Amendment unreasonable-seizure claim, see Alvarez v. Hill, 518 F.3d
1152, 1158 (9th Cir. 2008), it fails for the reasons discussed
below.
8

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documents under the Freedom of Information Act, 5 U.S.C. § 552,

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and certain provisions of the California Public Records Act,

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Government Code sections 6250-70 & 6275-76.48.

4

Compl. at 14-15.)

5
6

(See, e.g.,

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.”

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

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

11

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

12

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.”

18

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

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allegations” did not support it).

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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

In

The court need not accept

In

Although a complaint need not

Iqbal, 556 U.S. at 678 (quoting

9

A claim is facially

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inference that the defendant is liable for the misconduct

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alleged.”

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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).

Iqbal, 556 U.S. at 678.

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“A document filed pro se is

Erickson v. Pardus, 551

DISCUSSION
I.

The Complaint Appears to Be Duplicative of Plaintiff’s

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State-Court Lawsuit

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The Complaint is likely not properly heard by this Court

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because it is duplicative of Plaintiff’s pending state case.

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suit is duplicative if “the claims, parties, and available relief

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do not significantly differ between the two actions.”

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Cal. Dep’t of Health Servs., 487 F.3d 684, 689 (9th Cir. 2007)

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(citation omitted), overruled on other grounds by Taylor v.

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Sturgell, 553 U.S. 880, 904 (2008).

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lawsuit evidently also sues the City and its library for false

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arrest and false imprisonment based on the events of June 21,

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2018.

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actions seek only monetary damages.

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53.)

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theories in his state case

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has not alleged any reason why he could not have done so, and

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none is apparent to the Court.

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duplicative of Plaintiff’s pending state case.

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A

Adams v.

Plaintiff’s state-court

(See, e.g., Compl., Ex. M at 48.)

It appears that both

(See Compl. at 14 & Ex. N at

It is unclear whether Plaintiff sued on any federal legal
(see generally Compl., Ex. M), but he

The Complaint thus appears to be

In the federal court system, “the general principle is to

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avoid duplicative litigation.”

Colo. River Water Conservation

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Dist. v. United States, 424 U.S. 800, 817 (1976).
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A federal

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court may decline to exercise jurisdiction over a case when a

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concurrent, duplicative state case is pending.

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Although Colorado River abstention is disfavored in § 1983 cases,

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see Tovar v. Billmeyer, 609 F.2d 1291, 1294 (9th Cir. 1979), the

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Ninth Circuit “has not established a categorical prohibition”

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against it, see Jacobo v. L.A. Cnty., No. CV 11-7212-GW(SSx),

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2012 WL 13012480, at *4 (C.D. Cal. Feb. 16, 2012).

8

under Younger v. Harris, 401 U.S. 37, 41 (1971), may also be

9

appropriate when a § 1983 plaintiff has a concurrent state case

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arising from the same conduct.

11

See id. at 818.

Abstention

F.3d 965, 979-80 (9th Cir. 2004) (en banc).

12

See Gilbertson v. Albright, 381

Here, the Court need not decide whether any of those

13

doctrines apply because, as discussed below, the Complaint does

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not state any constitutional claim.

15

5453 BHS, 2017 WL 3534577, at *3 (W.D. Wash. Aug. 17, 2017) (when

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plaintiff had not yet stated cognizable § 1983 claim, court could

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dismiss pleading with leave to amend without “conclusively

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decid[ing]” whether abstention was warranted).

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Plaintiff is able to adequately plead a constitutional

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deprivation in an amended pleading, the Court may abstain from

21

considering it pending resolution of his state-court case.

22

Los Altos El Granada Inv’rs v. City of Capitola, 583 F.3d 674,

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689-90 (9th Cir. 2009).

24
25

See Wall v. Arend, No. C17-

In the event

See

Plaintiff is further warned that the Rooker-Feldman11 line
of cases would bar this Court from hearing any de facto appeal of

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27
11

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See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court
of Appeals v. Feldman, 460 U.S. 462 (1983).
11

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a state-court judgment.12

2

federal plaintiff asserts as a legal wrong an allegedly erroneous

3

decision by a state court, and seeks relief from a state court

4

judgment based on that decision.”

5

F.3d 890, 897 (9th Cir. 2013) (citation omitted).

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contains a de facto appeal, a district court is barred from

7

deciding not only the issues decided by the state court but also

8

any other issues that are “inextricably intertwined” with the

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state court’s decision.

“A de facto appeal exists when a

Id.

Bell v. City of Boise, 709
If the action

Rooker-Feldman applies even when

10

the challenge to the state court’s actions involves federal

11

constitutional issues.

12

23 F.3d 218, 221 (9th Cir. 1994).

13

court decide Plaintiff’s case and should he thereafter elect to

14

file an amended pleading, he must allege facts demonstrating that

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this action is not barred by Rooker-Feldman.

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II.

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See Dubinka v. Judges of Superior Court,
Accordingly, should the state

The Complaint Does Not State Any § 1983 Claim
Plaintiff seeks redress under the Fourth Amendment on

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theories of false arrest and — construed liberally — unlawful

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detention, evidently based on the conduct of Carr or whichever

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librarian or police officers effectuated his June 21, 2018 arrest

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and subsequent detention by the LAPD.

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12-13.)

(See, e.g., Compl. at 5-8,

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24
25
26
27
28

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Plaintiff attached to his Complaint a complaint he
apparently submitted to the Commission on Judicial Performance
asserting that the superior court was wrong to sustain the City’s
demurrer in his state-court lawsuit. (See Compl., Ex. N.)
12

1

A.

2
3

Legal Standards
1.

Fourth Amendment

An arrest without probable cause violates the Fourth

4

Amendment and gives rise to a claim for damages under § 1983.

5

See, e.g., Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th

6

Cir. 2011); Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964

7

(9th Cir. 2001).

8

have knowledge or reasonably trustworthy information sufficient

9

to lead a person of reasonable caution to believe that an offense

“Probable cause to arrest exists when officers

10

has been or is being committed by the person being arrested.”

11

Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir.

12

2009) (citation omitted).

13

the totality of circumstances known to the arresting officers at

14

the time of arrest.

15

Because probable cause is an objective inquiry, the arresting

16

officer’s “subjective reason for making the arrest” does not

17

matter; a public, warrantless arrest comports with the Fourth

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Amendment so long as there was probable cause for a reasonable

19

officer to arrest the suspect for some crime, which need not be

20

the actual offense charged or the one articulated by the

21

arresting officers.

22

(2004); see also Arpin v. Santa Clara Valley Transp. Agency, 261

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F.3d 912, 924 (9th Cir. 2001) (warrantless misdemeanor citizen’s

24

arrest requires probable cause).

25

delivery of a person following a citizen’s arrest without

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“independently investigat[ing]” the claims of the citizen

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witness.

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Probable cause is determined based on

Illinois v. Gates, 462 U.S. 213, 238 (1983).

Devenpeck v. Alford, 543 U.S. 146, 153-54

An officer may not accept

Arpin, 261 F.3d at 924-25.

The Fourth Amendment governs a claim for unlawful detention
13

1

“even beyond the start of legal process.”

2

Joliet, 137 S. Ct. 911, 920 (2017).

3

plaintiff must show that the officer violated his constitutional

4

rights by detaining or arresting him without probable cause.

5

at 918; Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990).

6

Manuel v. City of

To raise such a claim, a

Id.

Any Fourth Amendment claim for unlawful detention, like any

7

claim for false arrest, thus depends on an absence of probable

8

cause.

9

(9th Cir. 1998) (per curiam).

See Cabrera v. City of Huntington Park, 159 F.3d 374, 380
But a prosecutor’s subsequent

10

decision to dismiss charges or not to file them at all does not

11

by itself invalidate the legitimacy of an arrest; indeed, a

12

lawful arrest contemporaneously supported by probable cause

13

generally remains so regardless of subsequent developments in the

14

case.

15

Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)

16

(as amended).

17
18

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

2.

Municipal liability

Plaintiff sues only the City and the Library.

(See, e.g.,

19

Compl. at 1, 4-5.)

20

considered “persons” under § 1983 and therefore may be liable for

21

causing a constitutional deprivation.

22

Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Long v. Cnty.

23

of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).

24

respondeat superior liability exists under § 1983, a municipality

25

is liable only for injuries that arise from an official policy or

26

longstanding custom.

27

Harris, 489 U.S. 378, 385 (1989).

28

[municipal] employee committed the alleged constitutional

Municipalities and local governments are

See Monell v. Dep’t of

Because no

Monell, 436 U.S. at 694; City of Canton v.

14

A plaintiff must show “that a

1

violation pursuant to a formal governmental policy or a

2

longstanding practice or custom which constitutes the standard

3

operating procedure of the local governmental entity.”

4

v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (per curiam)

5

(citation omitted).

6

Gillette

In addition, a plaintiff must allege facts demonstrating

7

that the policy was “(1) the cause in fact and (2) the proximate

8

cause of the constitutional deprivation.”

9

F.3d 911, 918 (9th Cir. 1996).

Trevino v. Gates, 99

“Liability for improper custom

10

may not be predicated on isolated or sporadic incidents; it must

11

be founded upon practices of sufficient duration, frequency and

12

consistency that the conduct has become a traditional method of

13

carrying out policy.”

14

885 F.2d 1439, 1443-44 (9th Cir. 1989) (“Consistent with the

15

commonly understood meaning of custom, proof of random acts or

16

isolated events are [sic] insufficient to establish custom.”),

17

overruled on other grounds by Bull v. City & Cnty. of S.F., 595

18

F.3d 964, 981 (9th Cir. 2010) (en banc).

19

or a policy can be inferred from widespread practices or

20

‘evidence of repeated constitutional violations for which the

21

errant municipal officers were not discharged or reprimanded.’”

22

Pierce v. Cnty. of Orange, 526 F.3d 1190, 1211 (9th Cir. 2008)

23

(as amended) (quoting Gillette, 979 F.2d at 1349).

24

Id.; see also Thompson v. City of L.A.,

“A custom can be shown

A plaintiff may also establish municipal liability by

25

demonstrating that the alleged constitutional violation was

26

caused by a failure to train municipal employees adequately.

27

Harris, 489 U.S. at 388.

28

must allege facts demonstrating the following:

See

A plaintiff claiming failure to train

15

1

(1) he was deprived of a constitutional right, (2) the

2

[municipality] had a training policy that “amounts to

3

deliberate indifference to the constitutional rights of

4

the persons with whom its police officers are likely to

5

come into contact,” and (3) his constitutional injury

6

would not have happened had the [municipality] properly

7

trained those officers.

8

Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007)

9

(citation and alterations omitted).

10

B.

1.

11
12
13

Analysis
The Complaint does not state any Fourth Amendment
claim

Plaintiff’s claims fail because he has not adequately

14

pleaded any Fourth Amendment injury, much less one that resulted

15

from a failure to train City librarians or any municipal policy,

16

custom, or practice.

17

“audibl[y]” in the library (Compl. at 6), “adjacent to a

18

partition-less children’s section” (id. at 12), and insisted on

19

continuing to do so after a librarian had put him on notice that

20

he needed to stop (id. at 6).

21

Plaintiff (see supra note 5), officers on the scene “talked to

22

the librarian,” asked Plaintiff about his conduct, and warned him

23

that if he did not leave he would be arrested and escorted from

24

the building (see Compl. at 6).

25

at 6-7.)

26

violating section 602.1(b), which makes it a misdemeanor to

27

interfere with the lawful business of a public agency and refuse

28

to leave the premises when asked.

He admits that he was “ruminati[ng]”

Regardless of who arrested

He repeatedly refused.

(See id.

Probable cause therefore existed to arrest him for

16

See Devenpeck, 543 U.S. at

1

153-54; Arpin, 261 F.3d at 924-25.

2

That Plaintiff was apparently cited for a violation of

3

section 602(q), which does not appear to apply to his alleged

4

conduct, does not destroy the existence of probable cause and

5

does not invalidate his arrest.

6

54.

7

state a constitutional claim based on his less-than-three-hour

8

detention.

9

determination provides “constitutionally adequate justification”

See Devenpeck, 543 U.S. at 153-

Moreover, because probable cause existed, Plaintiff cannot

See Manuel, 137 S. Ct. at 918 (valid probable-cause

10

for detention before legal process has begun).

11

matter that the City Attorney apparently ultimately decided not

12

to file charges.

13

It does not

See DeFillippo, 443 U.S. at 36.

Thus, Plaintiff has not alleged any Fourth Amendment

14

violation under any theory.

15

claim in an amended pleading, he must allege specific facts

16

showing that he meets the standards set forth above in Section

17

II.A.

18
19

2.

Should he decide to pursue such a

The Complaint fails to state any Monell claim

Plaintiff has named no individual Defendants and proceeds

20

solely on a municipal-liability theory (see Compl. at 1, 4),

21

apparently primarily based on a failure to train City librarians

22

or other employees (see id. at 13).

23

has not adequately pleaded any constitutional deprivation.

24

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

25

liability absent showing of constitutional injury); Quintanilla

26

v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996) (same).

27

has he alleged facts showing that any Defendant’s training policy

28

amounted to deliberate indifference to his constitutional
17

But as discussed above, he
See

Nor

1

rights,13 or that more or different training would have prevented

2

any constitutional violation.

3

Cf. Blankenhorn, 485 F.3d at 484.

Plaintiff also alleges that the library had a posted policy

4

warning patrons that they could be arrested under Penal Code

5

section 602.1(b) if they behaved disruptively, disobeyed library

6

rules, or refused to leave when asked.

7

also id., Ex. B.)

8

patrons from talking on cell phones in the library.

9

at 6.)

(See Compl. at 4, 7; see

One of those rules apparently prohibited
(See Compl.

He does not specifically allege that any of those rules

10

or policies led to his arrest.

11

not have proximately caused him any Fourth Amendment deprivation

12

because, as discussed above, Plaintiff has not adequately pleaded

13

any such deprivation; indeed, he admits that he was talking out

14

loud in the library and continued to do so after having been

15

asked to stop.

16

section 602.1(b) (or for that matter section 602(q) or Municipal

17

Code section 41.24(d)) is unconstitutional in any way, and no

18

such infirmity is apparent to the Court.

19

allowing for disruptive individuals to be removed from public

20

spaces have withstood constitutional challenge.

21

v. City of L.A., No. CV 12-7261 DSF (SHx), 2012 WL 12548355, at

22

*3, *5-7 (C.D. Cal. Dec. 6, 2012) (upholding rules requiring

23

“civility” and “decorum” against vagueness and overbreadth

(See id. at 6.)

But even if he had, that could

Plaintiff nowhere alleges that

Similar provisions

See, e.g., Hunt

24
25
26
27
28

13

Indeed, at one point Plaintiff characterizes the City’s and
library’s training policy as “gross[ly] negligen[t].” (Compl. at
4.) That is not sufficient for § 1983 liability. See Daniels v.
Williams, 474 U.S. 327, 333 (1986) (injuries to life, liberty, or
property inflicted by governmental negligence not addressed by
Constitution).
18

1

challenges from plaintiff who had been ejected from City

2

recreation-board meeting for disruptive behavior).14

3

Plaintiff therefore has not stated any municipal-liability

4

claim for any Fourth Amendment violation.

Should he elect to

5

pursue such claims in an amended pleading, he must allege

6

specific facts showing that he was deprived of some

7

constitutional right and that the deprivation was proximately

8

caused by some municipal policy, custom, or practice.

9

Monell, 436 U.S. at 694; Trevino, 99 F.3d at 918.

See

As Monell

10

liability for a Fourth Amendment violation is apparently his only

11

federal-law theory of relief, the Court defers screening of his

12

state-law claims until he has adequately pleaded a federal cause

13

of action.

14

F.3d 802, 805 (9th Cir. 2001).15

See Herman Family Revocable Tr. v. Teddy Bear, 254

15
16
17
18
19
20
21
22
23
24
25
26
27
28

14

Further, Plaintiff appears to contend that the library
acted unlawfully because it violated the posted policy, not because
the policy itself was flawed. (See, e.g., Compl. at 8 (describing
email to Feuer “as to what was transpiring at this rogue library”),
12-13 (librarian Carr acted “outside of her rights” because he was
cited for violating § 602(q) rather than § 602.1(b)).)
15

The Court notes, however, that in bringing a state-law
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). Plaintiff’s failure to allege compliance
with the Tort Claims Act could lead to dismissal of his state-law
tort claims.
19

1

III. Plaintiff’s Public-Records Requests Are Premature or Not

2

Cognizable Under § 1983

3

Plaintiff seeks “discovery” under FOIA and state public-

4

records statutes.

5

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

6

request is denied as premature.

7

is ordered served and any Defendant files an answer, the Court

8

may thereafter issue an order allowing discovery to begin.

9

(See Compl. at 14.)

To the extent his request

If one of Plaintiff’s complaints

If Plaintiff wishes to make a request under FOIA or the

10

California Public Records Act, he may do so using the procedures

11

described in those statutes and does not need the Court’s

12

permission.

13

§ 6253; see also U.S. Dep’t of Justice, FOIA.gov, https://

14

www.foia.gov (providing portal for users to create FOIA request

15

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

16

Records Act of 2004 (Aug. 2004), http://ag.ca.gov/publications/

17

summary_public_records_act.pdf.

18
19

See generally 5 U.S.C. § 552; Cal. Gov’t Code

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

20

file a first amended complaint within 28 days of the date of this

21

order, remedying the deficiencies discussed above.

22

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

23

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

24

without reference to the original Complaint or any other

25

pleading, attachment, or document.

26

The FAC

Plaintiff is advised that he may wish to seek help from one

27

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

28

offer free on-site information and guidance to individuals who
20

The clinics

1

are representing themselves (proceeding pro se) in federal civil

2

actions.

3

the Court.

4

170 of the Edward R. Roybal Federal Building and U.S. Courthouse,

5

255 East Temple Street, Los Angeles, CA 90012.

6

Mondays, Wednesdays, and Fridays, 9:30 a.m. to 12 p.m. and 2 to 4

7

p.m.

8

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

9

They are administered by nonprofit law firms, not by
The clinic closest to Plaintiff is located in Suite

It is open

Useful information is also available on the clinics’

Plaintiff is warned that if he fails to timely file a

10

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

11

set forth above or for failure to diligently prosecute.16

12
13

DATED: December 19, 2018
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

16

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.”).
21