Juarez v. Queen Furniture et al
Filing
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ORDER FINDING NO COGNIZABLE CLAIMS AND REQUIRING PLAINTIFF TO AMEND OR RESPOND (ECF NO. 1 ); THIRTY (30) DAY DEADLINE, signed by Magistrate Judge Michael J. Seng on 12/3/2017. (Bernacchi, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MATTHEW MICHAEL JUAREZ, JR.,
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Plaintiff,
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v.
QUEEN FURNITURE, et al.,
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Defendants.
CASE NO. 1:17-cv-01550-DAD-MJS
ORDER FINDING NO COGNIZABLE
CLAIMS AND REQUIRING PLAINTIFF TO
AMEND OR RESPOND
(ECF NO. 1)
THIRTY (30) DAY DEADLINE
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Plaintiff is proceeding pro se and in forma pauperis in this complaint brought
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pursuant to 42 U.S.C. § 1983. His complaint is before the Court for screening.
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I.
Screening Requirement
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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the
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complaint to determine if it states a cognizable claim. The Court must dismiss a
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complaint or portion thereof if it determines that the action has raised claims that are
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legally "frivolous or malicious," "fails to state a claim upon which relief may be granted,"
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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2)(B). "Notwithstanding any filing fee, or any portion thereof, that may have
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been paid, the court shall dismiss the case at any time if the court determines that . . .
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the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
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II.
Pleading Standard
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Section 1983 “provides a cause of action for the deprivation of any rights,
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privileges, or immunities secured by the Constitution and laws of the United States.”
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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
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Section 1983 is not itself a source of substantive rights, but merely provides a method for
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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94
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(1989).
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To state a claim under § 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated and
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(2) that the alleged violation was committed by a person acting under the color of state
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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d
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1243, 1245 (9th Cir. 1987).
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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.
Plaintiff’s Allegations
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Plaintiff purports to bring this action on behalf of himself and six other individuals.
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He names a myriad of Defendants. His allegations, in their entirety, state as follows: “On
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January 23, 2013 several Delano PD officers assaulted me and worked in cooperation
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with others to have me lose my job with Calif. Dept. of Corrections.” (ECF No. 1 at 5.)
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Attached to the complaint are over thirty non-consecutive pages of what appear to be
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diary entries, some relating to Plaintiff‟s interactions with law enforcement and others
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describing Plaintiff‟s upbringing and family life.
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Plaintiff seeks money damages, “payment of all fines, jail time and DUI classes,” a
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presidential pardon, and reinstatement with the California Department of Corrections and
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Rehabilitation.
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IV.
Analysis
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A.
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Plaintiff appears to bring this action on behalf of multiple Plaintiffs who are not
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signatories to the complaint. However, Plaintiff is proceeding pro se in this matter and he
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is not authorized to represent others in this suit. See C.E. Pope Equity Trust v. United
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States, 818 F.2d 696, 697 (9th Cir.1987) (holding that a pro se litigant may not appear
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as an attorney for others); Welch v. Terhune, 11 F. App'x 747, 747 (9th Cir. 2001)
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(same). Accordingly, the case should proceed only as to Plaintiff Matthew Michael
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Juarez, Jr.
Multiple Plaintiffs
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B.
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Plaintiff complains of conduct that occurred in January 2013. It appears his claim
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Statute of Limitations
is barred by the statute of limitations.
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A claim may be dismissed on the ground that it is “barred by the applicable statute
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of limitations only when 'the running of the statute is apparent on the face of the
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complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969
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(9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir.
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2006)). "[A] complaint cannot be dismissed [for untimeliness] unless it appears beyond
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doubt that the plaintiff can prove no set of facts that would establish the timeliness of the
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claim." Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995).
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Dismissal as time-barred at the pleading stage without leave to amend is inappropriate
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where a complaint alleges facts indicating potential tolling may apply. Cervantes v. City
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of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993).
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No statute of limitations is set out in 42 U.S.C § 1983. However, federal civil rights
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claims are subject to the forum state's statute of limitations applicable to personal injury
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claims. Wilson v. Garcia, 471 U.S. 261, 275-76 (1985), partially superseded by statute
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as stated in Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369, 377-380 (2004).
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Therefore, California‟s two year statute of limitations on personal injury claims applies.
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Cal. Code Civ. Proc. § 335.1. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir 2004);
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Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007); Maldonado v. Harris,
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370 F.3d 945, 954 (9th Cir. 2004). Under federal law, a civil rights claim like this accrues
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when plaintiff knows or has reason to know of the injury giving rise to the claim. Olsen v.
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Idaho State Bd. Of Med., 363 F.3d 916, 926 (9th Cir. 2004); Lukovsky v. City & Cty. of
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S.F., 535 F.3d 1044, 1050-1051 (9th Cir. 2008).
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1.
Statutory Tolling
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State law may toll the running of the statute of limitations on cases arising in that
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state and filed in Federal court. Hardin v. Straub, 490 U.S. 536, 543 (1989). Federal
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courts apply a forum state‟s law regarding tolling when not inconsistent with federal law.
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Id. at 537-39. In this case, California Code of Civil Procedure Section 352.1 tolls the
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running of California‟s statute of limitations for two years for people imprisoned for a
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term of less than life in prison. Although not entirely clear, it appears Plaintiff may have
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been imprisoned following the incident at issue.
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Here, the facts suggest that Plaintiff had reason to know of his injury when the
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incident occurred. Thus, his claims accrued on January 23, 2013. Under state statutory
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tolling provisions, Plaintiff had a maximum of four years from the date his claims accrued
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to file suit. That would mean that Plaintiff would have had to file by January 23, 2017.
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This complaint was filed on November 15, 2017. Therefore, Plaintiff‟s claims would be
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timed barred unless that period was extended by equitable tolling.
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2.
Equitable tolling
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In California law, equitable tolling applies where “an injured person has several
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legal remedies and, reasonably and in good faith, pursues one.” Elkins v. Derby, 525
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P.2d 81, 84 (Cal. 1974). It may apply where one action “stands to lessen the harm that
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is the subject of a potential second action; where administrative remedies must be
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exhausted before a second action can proceed; or where a first action, embarked upon
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in good faith, is found to be defective for some reason.” McDonald v. Antelope Valley
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Cmty. Coll. Dist., 194 P.3d 1026, 1032 (Cal. 2008).
Here, Plaintiff states no facts to suggest that equitable tolling applies. Accordingly,
it appears that the claims are barred by the statute of limitations.
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C.
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Plaintiff names a variety of defendants who do not appear to be state actors, e.g.,
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Private Parties
Queen Furniture, Motor City GMC Buick, Vallarta Supermarkets, and the like.
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To bring a claim under section 1983, Plaintiff must show a deprivation of his rights
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committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48,
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108 S.Ct. 2250 (1988) (citations omitted). The presumption is that “conduct by private
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actors is not state action” but “„state action may be found if . . . there is such a close
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nexus between the State and the challenged action that seemingly private behavior may
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be fairly treated as that of the State itself.‟” Florer v. Congregation Pidyon Shevuyim,
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N.A., 639 F.3d 916, 922, 924 (9th Cir. 2011). Here, there are no facts to suggest that
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these defendants acted under color of state law to deprive Plaintiff of his rights. He
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therefore fails to state a section 1983 claim against them. He will be given leave to
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amend to attempt to cure this defect.
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D.
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A plaintiff may not “lump all the defendants together” under a “team effort” theory
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of liability, but must, instead, “base each individual's liability on his own conduct.”
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Chuman v. Wright, 76 F.3d 292, 295 (9th Cir. 1996). Thus, under § 1983, Plaintiff must
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demonstrate that each named defendant personally participated in the deprivation of his
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rights. Iqbal, 556 U.S. 662, 676-77 (2009); Simmons v. Navajo Cnty., Ariz., 609 F.3d
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1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.
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2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability may not be
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imposed on supervisory personnel under the theory of respondeat superior, as each
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defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 676-77; Ewing,
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588 F.3d at 1235. Supervisors may only be held liable if they “participated in or directed
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the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List,
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880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th
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Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark
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Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d
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1189, 1204 (9th Cir. 1997).
Linkage
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Here, Plaintiff does not allege facts regarding any particular defendants. It is
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unclear how anyone named in the complaint participated in the alleged violations.
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Plaintiff will be given leave to amend.
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E.
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“[S]ection 1983 imposes liability only on „persons‟ who, under color of law, deprive
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others of their constitutional rights, [and] the Supreme Court has construed the term
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„persons‟ to include municipalities such as the County.” Castro v. Cty. of Los Angeles,
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797 F.3d 654, 670 (9th Cir. 2015) (citing Monell v. Dep‟t of Social Services, 436 U.S.
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658, 690-91 (1978)). Counties may not be held liable for the actions of their employees
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under a theory of respondeat superior, but they may be held liable for a constitutional
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violation if an action taken pursuant to a policy, be it a formal or informal policy, caused
Municipal Liability
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the underlying violation. Castro, 797 F.3d at 670 (citing City of St. Louis v. Praprotnik,
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485 U.S. 112, 131 (1989) and Monell, 436 U.S. at 691) (quotation marks omitted); see
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also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (municipal
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liability claim cannot be maintained unless there is an underlying constitutional violation).
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Municipal liability may also be imposed where the local government unit‟s
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omission led to the constitutional violation by its employee. Gibson v. Cty. Of Washoe,
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Nev., 290 F.3d 1175, 1186 (9th Cir. 2002). Under this route to municipal liability, the
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“plaintiff must show that the municipality‟s deliberate indifference led to its omission and
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that the omission caused the employee to commit the constitutional violation.” Id. This
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kind of deliberate indifference is found when the need to remedy the omission is so
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obvious, and the failure to act so likely to result in the violation of rights, that the
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municipality reasonably can be said to have been deliberately indifferent when it failed to
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act. Id. at 1195.
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Plaintiff names municipal entities as defendants but does not suggest how a
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policy or omission of the County led to a violation of his constitutional rights. He therefore
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fails to state a claim on this basis. He will be given leave to amend.
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F.
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As stated, Plaintiff‟s claims are inadequately pled and likely are barred by the
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statute of limitations. The Court nonetheless will provide Plaintiff the legal standard for
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bringing an excessive force claim in the event he chooses to amend.
Excessive Force
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A § 1983 claim for excessive force is analyzed under the framework outlined in
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Graham v. Connor, 490 U.S. 386 (1989). This analysis “requires balancing the „nature
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and quality of the intrusion‟ on a person's liberty with the „countervailing governmental
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interests at stake‟ to determine whether the use of force was objectively reasonable
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under the circumstances.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005)
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(quoting Graham, 490 U.S. at 396). The relevant question to ask is “whether the officers'
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actions are „objectively reasonable‟ in light of the facts and circumstances confronting
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them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397.
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Relevant factors in this reasonableness inquiry include “the severity of the crime at
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issue, whether the suspect poses an immediate threat to the safety of the officers or
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others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
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Id. at 396.
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G.
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As stated, Plaintiff submits with his complaint a series of unidentified documents,
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Attachments to Complaint
most of which do not appear to pertain to his allegations.
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Plaintiff‟s claims must be set forth simply, concisely and directly. Fed. R. Civ. P.
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8(d)(1) (“Each allegation must be simple, concise and direct.”); McHenry v. Renne, 84
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F.3d 1172, 1177 (9th Cir. 1996) (“The Federal Rules require that averments „be simple,
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concise, and direct.‟”).
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The courts do grant leeway to pro se plaintiffs in construing their pleadings. Even
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with leeway and liberal construction, however, the complaint must not force the Court
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and Defendant to guess at what is being alleged against whom, require the Court to
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spend its time “preparing the „short and plain statement‟ which Rule 8 obligated plaintiff
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to submit,” or require the Court and Defendant to prepare lengthy outlines “to determine
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who is being sued for what.” See, e.g., Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199
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(9th Cir. 1995) (“Although a pro se litigant . . . may be entitled to great leeway when the
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court construes his pleadings, those pleadings nonetheless must meet some minimum
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threshold in providing a defendant with notice of what it is that it allegedly did wrong.”).
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In this regard, the Court cannot, and will not, sort through miscellaneous
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documents to try to divine therefrom whether anything contained therein may state a
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cognizable claim. If Plaintiff chooses to amend, he should simply, concisely, and directly
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set forth the factual allegations underlying in his claims in his amended complaint,
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V.
Conclusion and Order
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Plaintiff‟s complaint appears to be barred by the statute of limitation and, in any
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event, does not state a cognizable claim for relief. The Court will grant Plaintiff an
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opportunity to file an amended complaint to cure noted defects. Noll v. Carlson, 809 F.2d
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1446, 1448-49 (9th Cir. 1987). If Plaintiff does not wish to amend, he may instead file a
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notice of voluntary dismissal, and the action then will be terminated by operation of law.
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Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, Plaintiff may forego amendment and notify
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the Court that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356
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F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). If the last
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option is chosen, the undersigned will issue findings and recommendations to dismiss
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the complaint without leave to amend, Plaintiff will have an opportunity to object, and the
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matter will be decided by a District Judge. No further opportunity to amend will be given
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by the undersigned.
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If Plaintiff chooses to amend, he must demonstrate that the alleged acts resulted
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in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set
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forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟” Id. at 678
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(quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each
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named Defendant personally participated in a deprivation of his rights. Jones v. Williams,
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297 F.3d 930, 934 (9th Cir. 2002). Plaintiff should note that although he has been given
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the opportunity to amend, it is not for the purposes of adding new claims. George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this screening
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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. Within thirty (30) days from the date of service of this order, Plaintiff must file
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either a first amended complaint curing the deficiencies identified by the Court
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in this order, a notice of voluntary dismissal, or a notice of election to stand on
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the complaint; and
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4. If Plaintiff fails to comply with this order, the Court will recommend the action
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be dismissed, with prejudice, for failure to obey a court order and failure to
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state a claim.
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IT IS SO ORDERED.
Dated:
December 3, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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