Elliott v Sands et al

Filing 6

ORDER signed by Magistrate Judge Craig M. Kellison on 2/20/13 ORDERING that Plaintiff's complaint is DISMISSED with leave to amend; and Plaintiff shall file a amended complaint within 30 days of the date ofservice of this order.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY ANDREW ELLIOTT,

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No. 2:10-cv-0174-LKK-CMK

Plaintiff,
vs.

ORDER

REGISTRAR OF CONTRACTORS,
et al.,

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Defendants.
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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
court is plaintiff’s complaint (Doc. 1).
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. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and
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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must

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dismiss an action “[w]henever it appears . . . that the court lacks jurisdiction of the subject

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matter . . . .” Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma

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pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h),

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the court will also consider as a threshold matter whether it has subject-matter jurisdiction.

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The undersigned originally screened plaintiff’s complaint and found that this court

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should abstain from exercising jurisdiction over plaintiff’s claims under the Rooker-Feldman

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abstention doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia

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Court of Appeals v. Feldman, 460 U.S. 462 (1983). The undersigned therefore recommended

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that this action be dismissed. The district court declined to adopt the findings and

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recommendations, determining that it is unclear whether there was a final determination in a

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judicial proceeding. The undersigned was then directed to determine whether there is any other

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basis for screening the complaint.

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As stated in the undersigned’s prior screening order, plaintiff names as defendants

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the California Contractor’s State License Board, as well as various of its members and/or

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employees. Plaintiff’s lawsuit challenges a decision by a state administrative law judge to deny

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him a state contractor’s license. He states that he brings this case under 42 U.S.C. § 1983 for

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violation of his civil rights. Specifically he claims the defendants’ handling of the decision to

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deny him a state contractor’s license violated his due process and equal protection rights.

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The undersigned finds several defects in plaintiff’s case. First, it appears that the

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defendants plaintiff has named in this action may be immune from this suit. Second, it appears

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that plaintiff is unable to state a claim for violation of his equal protection rights, as he attempts

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to do. Finally, it is still unclear to the undersigned whether this action should properly proceed

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in this court.

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As stated above, the defendants named in this action all appear to all be

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employees of a state agency. The Eleventh Amendment prohibits federal courts from hearing

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suits brought against a state both by its own citizens, as well as by citizens of other states. See

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Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This

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prohibition extends to suits against states themselves, and to suits against state agencies. See

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Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989). Claims for damages against the state, its agencies or its officers for

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actions performed in their official capacities are barred under the Eleventh Amendment, unless

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the state waives its immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also Will v.

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Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (neither a state nor its officials acting in

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their official capacities are persons under §1983). It is unclear from plaintiff’s complaint

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whether or not he is suing these individuals in their official or personal capacities. In the

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complaint, plaintiff states the individual defendants “are being sued in their representative

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capacity and as a result of decisions they individually made which impaired plaintiff’s rights.”

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(Compl., Doc. 1, at 2). Thus, it appears he is in fact naming these defendants in their official

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capacity, for actions performed in that capacity. If that is the case, the defendants would be

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immune from this suit. Similarly, plaintiff’s claims against the agency itself fall well within the

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Eleventh Amendment immunity protection.

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As to plaintiff’s equal protection claim, plaintiff fails to plead sufficient facts to

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state a claim. To state a claim for a violation of the equal protection clause, a plaintiff must show

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that the defendants acted with an intent or purpose to discriminate against the plaintiff based

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upon membership in a protected class. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998). Plaintiff fails to allege membership in any protected class. Rather, plaintiff’s claim

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appears to rest on being treated different from other applicants based on an old history of drug

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use. This is not a protected class, and plaintiff has thus failed to state a claim for violations of his

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rights under the Equal Protection clause.
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Finally, it remains unclear whether this action should proceed in this court. As the

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undersigned set forth in the prior review of plaintiff’s complaint, this court lacks jurisdiction to

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hear matters already decided in state court under the Rooker-Feldman abstention doctrine. See

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Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v.

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Feldman, 460 U.S. 462 (1983). Plaintiff is in essence, seeking to have this court review the

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decision denying him a state contractor’s license. The district court determined there was

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insufficient information to determine whether the decision being challenged was a final

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determination in a judicial proceeding. Plaintiff indicates the decision denying his license was

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reviewed by an Administrative Law Judge. However, he fails to inform this court whether that

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decision is a “final order,” whether there were additional state judicial remedies available to him,

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and whether he availed himself of any of those additional state remedies. Thus, if plaintiff

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wishes to proceed with this action in this court, he will be required to provide this court with

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additional information for this court to determine whether the Rooker-Feldman abstention

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doctrine applies. Plaintiff is required to inform the court as to what additional administrative or

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judicial remedies were available to him, and how he availed himself of those remedies, such as

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any potential opportunity for state judicial review of the Administrative Law Judge’s decision.

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Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.
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If plaintiff chooses to amend the complaint, plaintiff must cure the defects

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identified above. He must plead sufficient facts to show the defendants he has named are not

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immune from suit under the Eleventh Amendment, that he is included in some protective group

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giving rise to his equal protection claim, and that this court has jurisdiction to hear this action

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under the Rooker-Feldman abstention doctrine.

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file a amended complaint within 30 days of the date of

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service of this order.

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DATED: February 20, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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