Gonzales v. City Of Fresno

Filing 4

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 5/23/2016. First Amended Complaint due by 6/27/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY LEONARD GONZALES,

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Plaintiff,

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CASE NO. 1:15-cv-00579----MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
CITY OF FRESNO,

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Defendant.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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Plaintiff is a County inmate proceeding pro se and in forma pauperis in this

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eminent domain action. His complaint is before the Court for screening.

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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

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PLAINTIFF’S ALLEGATIONS
Plaintiff is detained at the Fresno County Jail. His allegations are unrelated to his

detention. He names the City of Fresno as sole defendant in this action.

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On March 25, 2015, Plaintiff was “kicked out” of his house by the City of Fresno,

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acting through “housing development,” City police officers, and “City Coding.” Plaintiff

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was told that his house was unstable and not up to code. The following day, March 26,

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2015, Plaintiff’s house was knocked down. Plaintiff did not have time to remove

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anything. Plaintiff believes the City wishes to take his property through eminent domain.

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He seeks money damages and a restraining order.
IV.

ANALYSIS

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A.

Eminent Domain

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The Takings Clause of the Fifth Amendment provides that “private property [shall

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not] be taken for public use, without just compensation.” U.S. Const. amend. V. The law

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on condemnations and physical takings is governed by the simple rule that “[w]hen the

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government physically takes possession of an interest in property for some public

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purpose, it has a categorical duty to compensate the former owner.” Tahoe–Sierra Pres.

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Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002).

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Plaintiff has not alleged that the City actually took possession of his property and

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thus he fails to state a claim under the Takings Clause. His belief that the City intends to

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take the property under eminent domain is, apparently, based on speculation. Absent

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further facts showing that the City intends to take possession of Plaintiff’s property

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without just compensation, this allegation fails to state a cognizable claim.

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B.

Due Process

Plaintiff may be able to state a due process claim in relation to the destruction of
his home.

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Procedural due process imposes constraints on governmental decisions which

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deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due

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Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S.

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319, 332 (1976). Due process requires: (1) notice, and (2) an opportunity to be heard at

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a meaningful time and in a meaningful manner.” Brock v. Roadway Express, Inc., 481

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U.S. 252, 261 (1987); Mathews, 424 U.S. at 333 (“The fundamental requirement of due

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process is the opportunity to be heard ‘at a meaningful time and in a meaningful

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manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))). The Supreme Court

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has generally held that “some form of hearing is required before an individual is finally

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deprived of a property interest.” Mathews, 424 U.S. at 333 (citations omitted).

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Here, Plaintiff does not state whether he had any notice of or opportunity to

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participate in hearings regarding the destruction of his home. He states that he did not

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have time between March 25 and March 26 to remove his belongings, but does not

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explain whether he had any prior notice regarding the purported safety and coding

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issues that the City identified as motivation for its actions. Absent facts to show that

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Plaintiff had neither notice nor an opportunity to be heard on these issues, he fails to

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state a cognizable claim.

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V.

CONCLUSION AND ORDER

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Plaintiff’s complaint fails to state a cognizable claim. The Court will grant Plaintiff

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an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). If Plaintiff chooses to amend, he must demonstrate that the alleged acts

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resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff

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must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’”

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Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff should carefully read this

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screening order and focus his efforts on curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed for failure to state a claim upon which relief

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may be granted;

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2. Within thirty (30) days from the date of service of this order, Plaintiff must file a

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first amended complaint curing the deficiencies identified by the Court in this

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order or a notice of voluntary dismissal; and

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3. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal,

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this action will be dismissed, with prejudice, for failure to obey a court order

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and failure to state a claim.

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IT IS SO ORDERED.
Dated:

May 23, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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