Ivin Mood v. County of Orange et al

Filing 12

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re NOTICE OF MOTION AND MOTION to AMEND Complaint - (Referred), 1 8 . (SEE ORDER FOR DETAILS) (Attachments: # 1 CIVIL RIGHTS COMPLAINT FORM, # 2 NOTICE OF DISMISSAL) (dts)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8
9
10

Case No. SACV 17-762-SVW (KK)

IVIN MOOD,
Plaintiff,

11
12
13

v.

ORDER DISMISSING FIRST
AMENDED COMPLAINT WITH
LEAVE TO AMEND

COUNTY OF ORANGE, ET AL.,

14

Defendants.

15
16
17

I.

18

INTRODUCTION

19

Plaintiff Ivin Mood (“Plaintiff”), proceeding pro se and in forma pauperis,

20

filed a First Amended Complaint (“FAC”) pursuant to 42 U.S.C. § 1983

21

(“Section 1983”). It appears Plaintiff is suing defendants County of Orange and

22

City of Newport Beach (“Defendants”) for violations of Section 1983 arising out of

23

an incident at Orange County Jail. As discussed below, the Court dismisses the

24

FAC with leave to amend.

25

II.

26

PROCEDURAL HISTORY

27
28

On April 28, 2017, Plaintiff filed a Complaint appearing to sue defendants
County of Orange and Orange County Jail Deputy D. Lopes in his official capacity

1

for violations of Section 1983 and state law arising out of an incident on April 30,

2

2016 at Santa Ana Central Jail. ECF Docket No. (“Dkt.”) 1, Compl.
On May 18, 2017, the Court dismissed the Complaint for failure to state a

3
4

claim and granted Plaintiff leave to amend. Dkt. 7.
On June 5, 2017, Plaintiff filed the instant FAC suing Defendants.1 Dkt. 8.

5
6

Plaintiff alleges he was arrested without probable cause pursuant to a City of

7

Newport Beach policy of arresting homeless persons without probable cause. Id. at

8

3-7. Plaintiff also alleges he suffered abuse when County of Orange sheriffs

9

slammed his face into a jail cell window during intake at Orange County Jail

10

pursuant to a County of Orange policy of excessive force. Id. at 2, 4-7.

11

III.

12

STANDARD OF REVIEW

13

As Plaintiff is proceeding in forma pauperis, the Court must screen the

14

Complaint and is required to dismiss the case at any time if it concludes the action

15

is frivolous or malicious, fails to state a claim on which relief may be granted, or

16

seeks monetary relief against a defendant who is immune from such relief. 28

17

U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

18

1998).

19

In determining whether a complaint fails to state a claim for screening

20

purposes, the Court applies the same pleading standard from Rule 8 of the Federal

21

Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to

22

dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter,

23

668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a

24

“short and plain statement of the claim showing that the pleader is entitled to

25

relief.” Fed. R. Civ. P. 8(a)(2).

26
27
28

1 Plaintiff titled the FAC a Motion for Leave to File a First Amended Complaint.
See Dkt. 8. Hence, on June 19, 2017, the Court granted Plaintiff’s Motion for
Leave to file the FAC, but advised Plaintiff that the Court would screen the FAC
pursuant to 28 U.S.C. § 1915(e)(2). See Dkt. 10.
2

1

A complaint may be dismissed for failure to state a claim “where there is no

2

cognizable legal theory or an absence of sufficient facts alleged to support a

3

cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007)

4

(citation omitted). In considering whether a complaint states a claim, a court must

5

accept as true all of the material factual allegations in it. Hamilton v. Brown, 630

6

F.3d 889, 892-93 (9th Cir. 2011). However, the court need not accept as true

7

“allegations that are merely conclusory, unwarranted deductions of fact, or

8

unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th

9

Cir. 2008) (citation omitted). Although a complaint need not include detailed

10

factual allegations, it “must contain sufficient factual matter, accepted as true, to

11

‘state a claim to relief that is plausible on its face.’” Cook v. Brewer, 637 F.3d

12

1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

13

1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it “allows the

14

court to draw the reasonable inference that the defendant is liable for the

15

misconduct alleged.” Cook, 637 F.3d at 1004 (citation omitted).

16

“A document filed pro se is to be liberally construed, and a pro se complaint,

17

however inartfully pleaded, must be held to less stringent standards than formal

18

pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.

19

2008) (citation omitted). “[W]e have an obligation where the p[laintiff] is pro se,

20

particularly in civil rights cases, to construe the pleadings liberally and to afford the

21

p[laintiff] the benefit of any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

22

2012) (citation omitted).

23

If the court finds the complaint should be dismissed for failure to state a

24

claim, the court has discretion to dismiss with or without leave to amend. Lopez v.

25

Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted

26

if it appears possible the defects in the complaint could be corrected, especially if

27

the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103,

28

1106 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint
3

1

cannot be cured by amendment, the court may dismiss without leave to amend.

2

Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th

3

Cir. 2009).

4

IV.

5

DISCUSSION

6

A.

PLAINTIFF FAILS TO STATE A CLAIM AGAINST DEFENDANT

7

COUNTY OF ORANGE

8

(1)

9

Because no respondeat superior liability exists under Section 1983, a state

APPLICABLE LAW

10

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

11

custom. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98

12

S. Ct. 2018, 56 L. Ed. 2d 611 (1978); see also City of Canton v. Harris, 489 U.S.

13

378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) (“A municipality can be liable

14

under § 1983 only where its policies are the ‘moving force [behind] the

15

constitutional violation.’ ”) (citing Polk Cty. v. Dodson, 454 U.S. 312, 326, 102 S.

16

Ct. 445, 70 L. Ed. 2d 509 (1981)). A plaintiff must allege facts to establish “that a

17

[county] employee committed the alleged constitutional violation pursuant to a

18

formal governmental policy or a longstanding practice or custom which constitutes

19

the standard operating procedure of the local governmental entity.” Gillette v.

20

Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (citations and internal quotation

21

marks omitted); see also Ziegler v. Indian River Cty., 64 F.3d 470, 474 (9th Cir.

22

1995) (noting “county not liable for acts of county officials unless the officials’

23

conduct was the consequence of county policy or custom”).

24

Proof of random acts or isolated events is insufficient to establish a custom

25

or practice. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989).

26

Rather, a plaintiff must prove widespread, systematic constitutional violations

27

which have become the force of law. Board of Cty. Comm’rs of Bryan Cty., Okl. v.

28

Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626 (1997). In
4

1

addition, a plaintiff must allege the policy was “(1) the cause in fact and (2) the

2

proximate cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911,

3

918 (9th Cir. 1996) (citing Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355

4

(9th Cir. 1981)).

5

Factual allegations sufficient to put a defendant on adequate notice of a

6

Monell claim “could include, but are not limited to, past incidents of misconduct

7

to others, multiple harms that occurred to the plaintiff himself, misconduct that

8

occurred in the open, the involvement of multiple officials in the misconduct, or

9

the specific topic of the challenged policy or training inadequacy.” Guevara v. Cty.

10

of Los Angeles, No. CV 14-08120-DDP, 2015 WL 224727, at *4 (C.D. Cal. Jan. 15,

11

2015) (quoting Thomas v. City of Galveston, Texas, 800 F. Supp. 2d 826, 844

12

(S.D. Tex. 2011)). These details are necessary, even at the pleading stage, to “help

13

to satisfy the requirement of providing not only fair notice of the nature of the

14

claim, but also grounds on which the claim rests,” id., and to “permit the court to

15

infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

16

(2)

ANALYSIS

17

Assuming Plaintiff adequately pled a constitutional violation when Orange

18

County sheriffs used allegedly excessive force against him, he has failed to state a

19

claim against defendant County of Orange, because Plaintiff does not adequately

20

allege the violation occurred pursuant to a County of Orange longstanding custom

21

or policy. Plaintiff conclusorily alleges “anyone who has spent any amount of time

22

in this Orange County Jail intake area, knows, the inmates are regularly slammed

23

face first into the wall without any justifiable cause.” FAC at 5. However,

24

Plaintiff’s single, isolated event is insufficient to establish a custom or practice.

25

Thompson, 885 F.2d at 1444. Hence, because the FAC contains insufficient facts

26

to plausibly state a valid Monell claim, Plaintiff has again failed to state a claim

27

against defendant County of Orange. Young v. City of Visalia, 687 F. Supp. 2d

28

1141, 1150; see also Iqbal, 556 U.S. at 679.
5

1

B.

PLAINTIFF’S CLAIM AGAINST DEFENDANT CITY OF

2

NEWPORT BEACH IS SUBJECT TO DISMISSAL AS

3

DUPLICATIVE OF PENDING LITIGATION

4

(1)

5

“Plaintiffs generally have no right to maintain two separate actions involving

APPLICABLE LAW

6

the same subject matter at the same time in the same court and against the same

7

defendant.” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (9th

8

Cir. 2007) overruled in part on other grounds by Taylor v. Sturgell, 553 U.S. 880,

9

128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008) (citations omitted) (affirming dismissal of

10

duplicative action); M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir.

11

2012) (affirming dismissal of duplicative claim, noting “[i]t is well established that

12

a district court has broad discretion to control its own docket, and that includes the

13

power to dismiss duplicative claims”).

14

(2)

ANALYSIS

15

Here, Plaintiff has a case currently pending before this Court alleging

16

defendant City of Newport Beach has a policy of arresting homeless persons

17

without probable cause and that Plaintiff has been arrested without probable cause

18

by City of Newport Beach police officers on multiple occasions. See Case No.

19

SACV 15-1154-SVW (KK), Dkt. 11, Second Amended Complaint.2 Plaintiff’s

20

claim against defendant City of Newport Beach in the instant FAC is identical. See

21

FAC. Therefore, Plaintiff’s claim against City of Newport Beach based on an

22

alleged policy of arresting homeless persons without probable cause is subject to

23

dismissal.

24

///

25

///

26
27
28

The Court takes judicial notice of Plaintiff’s prior proceedings in this Court and
in the state courts. See In re Korean Air Lines Co., 642 F.3d 685, 689 n.1 (9th Cir.
2011).
6
2

1

C.

PLAINTIFF’S CLAIMS DO NOT ARISE OUT OF THE SAME

2

TRANSACTION OR OCCURRENCE AND THUS, MAY NOT BE

3

RAISED IN A SINGLE COMPLAINT

4

(1)

5

A basic lawsuit is a single claim against a single defendant. Federal Rule of

6

Civil Procedure 18(a) allows plaintiffs to add multiple claims to the lawsuit when

7

they are against the same defendant. Fed. R. Civ. P. 18(a). Federal Rule of Civil

8

Procedure 20(a)(2) allows plaintiffs to join multiple defendants to a lawsuit where

9

the right to relief arises out of the same “transaction, occurrence, or series of

APPLICABLE LAW

10

transactions” and “any question of law or fact common to all defendants will arise

11

in the action.” Fed. R. Civ. P. 20(a)(2). In contrast, unrelated claims against

12

different defendants must be brought in separate lawsuits to avoid confusion and

13

prevent “the sort of morass [a multiple claim, multiple defendant] suit

14

produce[s].” Thomas v. Rest., No. 115-CV-01113-DAD-SKO, 2016 WL 500702, at

15

*3 (E.D. Cal. Feb. 9, 2016) (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir.

16

2007)). If the test for permissive joinder is not satisfied, the court “may at any

17

time, on just terms, add or drop a party” and “may also sever any claim against a

18

party.” Fed. R. Civ. P. 21; see also Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th

19

Cir. 1997) (noting if joined plaintiffs fail to meet requirements of Rule 20(a), “the

20

district court may sever the misjoined plaintiffs, as long as no substantial right will

21

be prejudiced by the severance”).

22

(2)

ANALYSIS

23

Here, the FAC alleges defendant County of Orange has a policy of using

24

excessive force during intake and defendant City of Newport Beach has a policy of

25

arresting homeless persons without probable cause. See FAC. Plaintiff’s claims

26

against defendant County of Orange arise out of an incident of excessive force

27

during intake, whereas his claim against defendant City of Newport Beach arises

28

out of his arrest before he arrived at the Orange County Jail. Id. Accordingly,
7

1

Plaintiff’s claims do not arise out of the same “transaction, occurrence, or series of

2

transaction.” Fed. R. Civ. P. 20(a)(2). In addition, the incidents do not appear to

3

involve common questions of law or fact, in that the facts necessary to prove the

4

claims are unique. As such, even if Plaintiff has stated valid civil rights claims

5

against both Defendants, he will not be permitted to proceed with both claims

6

combined into one complaint. Hence, the FAC is subject to dismissal for failure to

7

comply with the Federal Rules of Civil Procedure.

8

V.

9

LEAVE TO FILE A SECOND AMENDED COMPLAINT

10

For the foregoing reasons, the FAC is subject to dismissal. As the Court is

11

unable to determine whether amendment would be futile, leave to amend is

12

granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

13

curiam).

14
15
16

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 Second Amended Complaint to attempt to cure the

17

deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a

18

blank Central District civil rights complaint form to use for filing the Second

19

Amended Complaint, which the Court encourages Plaintiff to use.

20

If Plaintiff chooses to file a Second Amended Complaint, Plaintiff must

21

clearly designate on the face of the document that it is the “Second Amended

22

Complaint,” it must bear the docket number assigned to this case, and it must be

23

retyped or rewritten in its entirety, preferably on the court-approved form. Plaintiff

24

shall not include new defendants or new allegations that are not reasonably related

25

to the claims asserted in the FAC. In addition, the Second Amended Complaint

26

must be complete without reference to the Complaint, FAC, or any other pleading,

27

attachment, or document.

28
8

1

An amended complaint supersedes the preceding complaint. Ferdik v.

2

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will

3

treat all preceding complaints as nonexistent. Id. Because the Court grants

4

Plaintiff leave to amend as to all his claims raised here, any claim raised in a

5

preceding complaint is waived if it is not raised again in the Second Amended

6

Complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).

7

The Court advises Plaintiff that it generally will not be well-disposed toward

8

another dismissal with leave to amend if Plaintiff files a Second Amended

9

Complaint that continues to include claims on which relief cannot be granted. “[A]

10

district court’s discretion over amendments is especially broad ‘where the court

11

has already given a plaintiff one or more opportunities to amend his complaint.’”

12

Ismail v. County of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012) (citations

13

omitted); see also Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a Second

14

Amended Complaint with claims on which relief cannot be granted, the

15

Second Amended Complaint will be dismissed without leave to amend and

16

with prejudice.

17

Plaintiff is explicitly cautioned that failure to timely file a Second

18

Amended Complaint will result in this action being dismissed with prejudice

19

for failure to state a claim, prosecute and/or obey Court orders pursuant to

20

Federal Rule of Civil Procedure 41(b).

21

2.

Alternatively, Plaintiff may voluntarily dismiss the action without

22

prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court

23

is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court

24

encourages Plaintiff to use.

25
26
27
28

Dated: July 27, 2017
HONORABLE KENLY KIYA KATO
United States Magistrate Judge
9