Watkins v. Pope et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 11/1/11 RECOMMENDING that 17 Second Amended Complaint filed by Robert Louis Watkins be dismissed without leave to amend; and that this action be dmismissed. Referred to Judge Lawrence K. Karlton. Objections to F&R due 14 days after being served with these findings and recommendations. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT LOUIS WATKINS,
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Plaintiff,
v.
JAMIE POPE, et al.,
FINDINGS AND RECOMMENDATIONS
Defendants.
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No. CIV S-10-0620 LKK DAD PS
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Plaintiff, Robert Watkins, is proceeding in this action pro se and in forma pauperis
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pursuant to 28 U.S.C. § 1915 against the California Public Employees Retirement System,
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(“CALPERS”), and an individual named Jamie Pope. The case was referred to the undersigned
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in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court is
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plaintiff’s second complaint.
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Under 28 U.S.C. § 1915(e)(2), the court must dismiss the complaint at any time if
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the court determines that the pleading is frivolous or malicious, fails to state a claim on which
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relief may be granted, or seeks monetary relief against an immune defendant. A complaint is
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legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.
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319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this
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standard, a court must dismiss a complaint as frivolous where it is based on an indisputably
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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at
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327; 28 U.S.C. § 1915(e).
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To state a claim on which relief may be granted, the plaintiff must allege “enough
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facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court
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accepts as true the material allegations in the complaint and construes the allegations in the light
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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg.
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Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242,
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1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as
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true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
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The minimum requirements for a civil complaint in federal court are as follows:
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A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.
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Fed. R. Civ. P. 8(a).
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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
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state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
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enhancements.’” Ashcroft v. Iqbal, --- U.S.---, ---, 129 S. Ct. 1937, 1949 (2009) (quoting
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Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of particularity
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overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at
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649.
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Here, plaintiff’s second amended complaint is comprised of a single page in
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which he states that due to “the nature of the event preparation and accomidation (sic) was so
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intense” that he missed “the filing date,” and seeks “mercy from the court and [to] continue my
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civil court proceeding.” (Sec. Am. Compl. (Doc. No. 17) at 1.) Plaintiff goes on to allege that at
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some point in time he was evicted from his residence, moved to a homeless shelter in Vallejo,
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California, for a year, returned to Sacramento, California, and “went to the court house and found
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out their (sic) was court proceeding.” (Id.) Plaintiff states he “waited over a year before they
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would even hear” his case and that he was told that the matter “was stuck on the bailiff’s desk for
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a year do (sic) to finicial (sic) evaluation.” (Id.) Attached to plaintiff’s second amended
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complaint are eight pages of documents from an unlawful detainer/eviction action in the Yolo
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County Superior Court dated August 11, 2010, in which plaintiff was named as a defendant.
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At the outset, the court notes that in this federal action plaintiff was granted leave
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to file a second amended complaint on October 11, 2011 and that the filing of his second
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amended complaint was timely. In this regard, it does not appear that plaintiff missed any
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applicable filing deadline with respect to this matter. Moreover, plaintiff filed his original
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complaint in this federal action on March 17, 2010, well over a year ago. Since that time,
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plaintiff has filed two amended complaints. Plaintiff’s original complaint and his first amended
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complaint contained allegations that the defendants discriminated against plaintiff based on his
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race. Plaintiff’s second amended complaint is devoid of any such allegations and is even more
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factually sparse, vague and conclusory then his first amended complaint, which this court
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previously found failed to state a cognizable claim. In short, after the filing of an original
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complaint and two amended complaints, it is still entirely unclear what plaintiff is attempting to
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allege that the named defendants did and how their actions allegedly harmed plaintiff.
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Accordingly, plaintiff’s second amended complaint should be dismissed for
failure to state a claim.
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The undersigned has carefully considered whether plaintiff may further amend his
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complaint to establish a jurisdictional basis for proceeding in federal court and to state a
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cognizable federal claim upon which relief could be granted. “Valid reasons for denying leave to
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amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.
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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake
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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that
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while leave to amend shall be freely given, the court does not have to allow futile amendments).
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In light of the nature of the allegations and plaintiff’s repeated failure to successfully amend his
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complaint, the undersigned finds that it would be futile to grant plaintiff further leave to amend.
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Accordingly, IT IS RECOMMENDED that:
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1. Plaintiff’s October 24, 2011 second amended complaint (Doc. No. 17) be
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dismissed without leave to amend; and
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2. This action be dismissed.
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These findings and recommendations will be submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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fourteen (14) days after being served with these findings and recommendations, plaintiff may file
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written objections with the court. A document containing objections should be titled “Objections
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to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may, under certain circumstances, waive the right to appeal
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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: November 1, 2011.
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DAD:6
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ddad1\orders.prose\watkins0620.dism.wolta.f&rs
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