McColm v. Trinity County et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 2/12/2016 ORDERING that Plaintiff's complaint is DISMISSED with leave to amend. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRICIA A. McCOLM,
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No. 2:12-cv-1984-MCE-CMK
Plaintiff,
vs.
ORDER
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TRINITY COUNTY, et al.,
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Defendants.
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Plaintiff, proceeding pro se, brings this civil action. Pending before the court is
plaintiff’s complaint (Doc. 1).
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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. 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 matter
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. . . .” 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).
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The Federal Rules of Civil Procedure require that complaints contain a “short and
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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,
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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied
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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon
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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). “Although a pro se
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litigant . . . may be entitled to great leeway when the court construes his pleadings, those
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pleadings nonetheless must meet some minimum threshold in providing a defendant with notice
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of what it is that it allegedly did wrong.” Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th
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Cir. 1995). “[A] pro se litigant is not excused from knowing the most basic pleading
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requirements.” Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th
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Cir. 2000).
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In order to survive dismissal for failure to state a claim a complaint must contain
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more than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” ” Bell Atlantic Corp.
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v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964 (2007). While “[s]pecific facts are not
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necessary; the statement [of facts] need . . . . give the defendant fair notice of what the . . . claim
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is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200
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(2007) (internal quotes omitted). In reviewing a complaint under this standard, the court must
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accept as true the allegations of the complaint in question, see id., and construe the pleading in
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the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
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II. BACKGROUND
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Plaintiff brings this action against numerous defendants, including Trinity County,
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Trinity County Superior Court, various court employees and judicial officers, several individual
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deputy marshals for the court, the Trinity County Sheriff’s Department and several individual
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deputies, the Trinity County District Attorney’s Office as well as several individual deputy
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district attorneys, the Department of Health and Human Services and several employees thereof,
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the State of California, The California Highway Patrol and one CHP officer. Generally, plaintiff
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alleges she has been mistreated by the above defendants, apparently in relation to her activities in
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the Trinity County Court. She claims the judges and court employees harassed her, made it
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difficult to access the court including filing of documents, instigated charges being brought
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against her, and failed to accommodate her disabilities. The claims she alleges range from
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violations of her civil rights, violations of the American’s with Disability Act, and numerous
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state law claims. Her requested relief includes declaratory and injunctive relief, building
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modifications, and damages.
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III. ANALYSIS
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A. Pleading Errors
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Here, plaintiff’s complaint suffers from numerous deficiencies. Overall,
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plaintiff’s claims and allegations are too vague for the court to determine whether she is able to
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state a claim for relief. The court has an obligation to construe pro se pleadings liberally. Bretz
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v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal
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interpretation of a pro se complaint may not supply essential elements of the claim that were not
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pled. Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The
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claims the court has been able to decipher from the complaint are addressed below.
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1. Joinder of Claims
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There are several seemingly unrelated claims raised in the compliant. Plaintiff’s
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allegations range from mistreatment by the court staff and law enforcement, to violations of the
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American’s with Disabilities Act, and Age Discrimination in Employment. These various claims
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are not related and should be separated into different actions. While plaintiff may bring multiple
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claims against one defendant under Federal Rule of Civil Procedure 18(a), Rule 20(a)(2)
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circumscribes her ability to join multiple defendants to the same action. Under Rule 20(a)(2), a
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plaintiff may only sue multiple defendants in the same action if at least one claim against each
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defendant arises out of the same “transaction, occurrence, or series of transactions or
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occurrences” and there is a “question of law or fact common to all defendants.” As discussed
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individually below, plaintiff’s various claims appear to arise out of several “transactions or
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occurrences” and involve many different questions of law and fact. If any claims survive
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dismissal, plaintiff will be required to choose which claims she goes forward with in this action.
2. Linkage
To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual
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connection or link between the actions of the named defendants and the alleged deprivations.
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See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the
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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts, or
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omits to perform an act which he is legally required to do that causes the deprivation of which
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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and
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conclusory allegations concerning the involvement of official personnel in civil rights violations
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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the
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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged
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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
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In addition, supervisory personnel are generally not liable under § 1983 for the
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actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that
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there is no respondeat superior liability under § 1983). A supervisor is only liable for the
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constitutional violations of subordinates if the supervisor participated in or directed the
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violations. See id. The Supreme Court has rejected the notion that a supervisory defendant can
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be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct
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because government officials, regardless of their title, can only be held liable under § 1983 for
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his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 129
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S.Ct. 1937, 1949 (2009). Supervisory personnel who implement a policy so deficient that the
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policy itself is a repudiation of constitutional rights and the moving force behind a constitutional
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violation may, however, be liable even where such personnel do not overtly participate in the
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offensive act. See Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).
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When a defendant holds a supervisory position, the causal link between such
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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel
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in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the
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official’s own individual actions, has violated the constitution.” Iqbal, 129 S.Ct. at 1948.
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Plaintiff names several defendants in the title of her complaint and identifies them
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within the body of the complaint, but fails to allege any specific facts against them. In addition,
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it appears that some of the defendants identified are named solely in their supervisorial capacity
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not based on their individual actions, which fails to provide a basis for liability. If plaintiff files
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an amended complaint, as discussed below, she must specifically allege facts related to each and
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every one of the defendants, setting forth the basis for liability.
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B. Immunity
1. Judicial Immunity
Several of the defendants named in the complaint are entitled to judicial
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immunity. Judges are absolutely immune from damage actions for judicial acts taken within the
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jurisdiction of their courts. See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988)
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(per curiam). This immunity is lost only when the judge acts in the clear absence of all
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jurisdiction or performs an act that is not judicial in nature. See id. Judges retain their immunity
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even when they are accused of acting maliciously or corruptly, see Mireles v. Waco, 502 U.S. 9,
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11 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978), and when they are
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accused of acting in error, see Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999).
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This immunity extends to the actions of court personnel when they act as “an integral part of the
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judicial process.” See Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987).
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Therefore, the judges and court employees named in the complaint are immune
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from this action, and must be dismissed. There are no allegations in the complaint that any of
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these defendants are being named as defendants for acts outside of their employment position.
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Even to the extent that plaintiff alleges the judges were acting outside their judicial functions,
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those allegations are belied by the other allegations in the complaint. Plaintiff brings this action
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based on the way she was treated during the court proceedings, not for actions unrelated to the
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judges’ position. The allegations of bias, prejudice, and the like, all relate to the way she was
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treated by the judges and court employees in and out of court proceedings.
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Accordingly, those defendants identified in the complaint as judges and/or court
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employees are entitled to judicial immunity and plaintiff cannot proceed in this action against
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them.
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In addition, under 28 U.S.C. § 1651(a), all federal courts may issue writs “in aid
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of their respective jurisdictions. . .” District courts have original jurisdiction under 28 U.S.C. §
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1361 to issue writs of mandamus. That jurisdiction is limited, however, to writs of mandamus to
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“compel an officer or employee of the United States or any agency thereof to perform a duty. . .”
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28 U.S.C. § 1361 (emphasis added). It is also well-established that, with very few exceptions
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specifically outlined by Congress, the federal court cannot issue a writ of mandamus
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commanding action by a state or its agencies. See e.g. Demos v. U.S. Dist. Court for Eastern
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Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991). To the extent plaintiff is requesting this court
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order the state court to issue a specific ruling or to complete some specific action, this court has
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no jurisdiction to do so under 28 U.S.C. § 1361.
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2. Prosecutorial Immunity
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Plaintiff also claims several deputy district attorneys brought baseless charges
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against her at the direction of the judges and court employees, thus committing prosecutorial
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misconduct. More specifically, plaintiff alleges the defendants filed questionable charges against
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her based on false and misleading allegations. It is unclear whether plaintiff was prosecuted on
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these charges, which would render this claim barred under Heck v. Humphrey, 512 U.S. 477,
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(1994). However, either way filing charges is a prosecutorial action which is entitled to
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immunity.
Prosecutorial immunity protects eligible government officials when they are
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acting pursuant to their official role as advocate for the state. See Imbler v. Pachtman, 424 U.S.
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409, 430 (1976). This immunity extends to actions during both the pre-trial and post-trial phases
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of a case. See Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). State prosecutors
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are entitled to absolute prosecutorial immunity for acts taken in their official capacity. See
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Kalina v. Fletcher, 522 U.S. 118, 123-25 (1997).
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To the extent plaintiff is attempting to challenge the charges brought against her
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or any conviction thereon, such a challenge sounds in habeas and is not cognizable under 42
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U.S.C. § 1983, as the sole federal remedy is a petition for a writ of habeas corpus. See Preiser v.
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Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir.
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1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Where a
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§ 1983 action seeking monetary damages or declaratory relief alleges constitutional violations
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which would necessarily imply the invalidity of a conviction or sentence, such a claim is not
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cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal,
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by habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477,
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483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to
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malicious prosecution action which includes as an element a finding that the criminal proceeding
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was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997)
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(concluding that § 1983 claim not cognizable because allegations of procedural defects were an
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attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding
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that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and
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not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005)
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(concluding that § 1983 action seeking changes in procedures for determining when an inmate is
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eligible for parole consideration not barred because changed procedures would hasten future
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parole consideration and not affect any earlier parole determination under the prior procedures).
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If a § 1983 complaint states claims which sound in habeas, the court should not convert the
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complaint into a habeas petition. See id.; Trimble, 49 F.3d at 586. Rather, such claims must be
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dismissed without prejudice and the complaint should proceed on any remaining cognizable §
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1983 claims. See Edwards v. Balisok, 520 U.S. 641, 649 (1987); Heck, 512 U.S. at 487;
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Trimble, 49 F.3d at 585.
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3. Eleventh Amendment Immunity
The Eleventh Amendment prohibits federal courts from hearing suits brought
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against a state both by its own citizens, as well as by citizens of other states. See Brooks v.
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Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition
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extends to suits against states themselves, and to suits against state agencies. See Lucas v. Dep’t
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of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th
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Cir. 1989). A state’s agency responsible for incarceration and correction of prisoners is a state
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agency for purposes of the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782
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(1978) (per curiam); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th cir. 1993) (en banc).
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The Eleventh Amendment also bars actions seeking damages from state officials
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acting in their official capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995);
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Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam). The Eleventh Amendment
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does not, however, bar suits against state officials acting in their personal capacities. See id.
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Under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not
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bar suits for prospective declaratory or injunctive relief against state officials in their official
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capacities. See Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). The Eleventh
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Amendment also does not bar suits against cities and counties. See Monell v. Dep’t of Soc.
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Servs., 436 U.S. 658, 690 n.54 (1978).
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Municipalities and other local government units are among those “persons” to
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whom § 1983 liability applies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
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Counties and municipal government officials are also “persons” for purposes of § 1983. See id.
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at 691; see also Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989).
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However, a local government unit may not be held responsible for the acts of its employees or
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officials under a respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown,
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520 U.S. 397, 403 (1997). Thus, municipal liability must rest on the actions of the municipality,
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and not of the actions of its employees or officers. See id. To assert municipal liability,
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therefore, the plaintiff must allege that the constitutional deprivation complained of resulted from
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a policy or custom of the municipality. See id. A claim of municipal liability under § 1983 is
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sufficient to withstand dismissal even if it is based on nothing more than bare allegations that an
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individual defendant’s conduct conformed to official policy, custom, or practice. See Karim-
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Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988).
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Here, plaintiff names both the State of California and the California Highway
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Patrol. Both of these defendants would appear to be immune from this action under the Eleventh
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Amendment. Plaintiff also names Trinity County, the Trinity County Superior Court, the Trinity
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County Marshal’s Department, the Trinity County Sheriff’s Department, the Trinity County
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District Attorney’s Office, and the Trinity County Department of Health and Human Services.
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However, plaintiff fails to allege any specific facts against these county agencies. A county
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agency is only liable for the actions of the agency itself, not the individual employees. Plaintiff
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does not allege any specific policy or custom of any of these agencies nor any other basis for
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liability to apply.
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C. Claims
1. Eighth Amendment - Use of Excessive Force
The treatment a prisoner receives in prison and the conditions under which the
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prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
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and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,
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511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
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of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102
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(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.
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Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with
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“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
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801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only
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when two requirements are met: (1) objectively, the official’s act or omission must be so serious
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such that it results in the denial of the minimal civilized measure of life’s necessities; and (2)
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subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of
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inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison
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official must have a “sufficiently culpable mind.” See id.
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When prison officials stand accused of using excessive force, the core judicial
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inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or
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maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);
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Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as
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opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims,
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is applied to excessive force claims because prison officials generally do not have time to reflect
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on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475
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U.S. at 320-21. In determining whether force was excessive, the court considers the following
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factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship
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between the need for force and the amount of force used; (4) the nature of the threat reasonably
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perceived by prison officers; and (5) efforts made to temper the severity of a forceful response.
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See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force
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was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir.
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1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally,
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because the use of force relates to the prison’s legitimate penological interest in maintaining
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security and order, the court must be deferential to the conduct of prison officials. See Whitley,
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475 U.S. at 321-22.
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Here, plaintiff appears to claim she suffered mistreatment while being held in the
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Trinity County Jail. Most of the mistreatment she complains about, however, appears to relate to
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being harassed, or general allegations of mistreatment without any specific facts as to who did
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what. While undoubtedly unpleasant, harassment does not generally rise to the level of an Eighth
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Amendment violation. She does allege one instance of being grabbed by one of the officers, but
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without more, it does not appear that this one instance would be sufficient either. However, it is
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possible that plaintiff can cure the lack of facts alleged in order to state a claim for use of
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excessive force. If she decides to include this claim in any amended complaint she files, plaintiff
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is informed that she is required to plead sufficient facts to show that she the use of force used
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against her was done not in a good-faith effort to maintain or restore discipline, but rather was
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done with the malicious and sadistic intent to cause her harm.
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2. Fourteenth Amendment - Due Process
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The Due Process Clause protects from the deprivation of life, liberty, or property
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without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a
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claim of deprivation of due process, a plaintiff must allege the existence of a liberty or property
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interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 (1977);
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Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).
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Here, it is unclear what process plaintiff claims she was due but did not receive. It
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appears that this claim is based on the Trinity County Court’s failure to allow her access to files
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and to file documents. As discussed above, to the extent plaintiff is attempting to have this court
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direct the state court to perform some specific action, this court lacks jurisdiction to make such
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orders. It would appear possible that the state court issued some sort of vexation litigant order
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which can preclude an individual from filing documents without court approval. This court is
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empowered to issue such orders under 28 U.S.C. § 1651(a) so long as certain factors are met.
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See De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.1990) (setting forth the four facts
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to be considered as (1) notice and an opportunity to be heard; (2) the creation of an adequate
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record; (3) findings of frivolousness or harassment; and (4) that the order be narrowly tailored to
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prevent the litigant's abusive behavior). If that is plaintiff’s claim, she is simply in the wrong
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court to obtain the relief desired. However, as it is not clear what plaintiff’s due process claim is
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based on, it is unclear to the court whether this claim is frivolous or if this court would have
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jurisdiction. Again, if plaintiff decides to include this claim in any amended complaint she
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decides to file, she is required to set forth specific facts identifying what liberty or property
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interest she claims she did not receive protection for.
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3. Age Discrimination
Under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
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§§ 621-634, it is “unlawful for an employer . . . to fail or refuse to hire . . . any individual [who is
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at least 40 years of age but less than 70] . . . because of such individual’s age.” 29 U.S.C. §§
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623(a), 631(a). The elements of a prima facie case alleging failure to hire are similar to those for
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alleging discriminatory termination. A failure to hire claim that is premised upon intentional
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discrimination requires a showing that the plaintiff (1) was a member within the protected class
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of individuals between forty and seventy years of age; (2) applied for a position for which she
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was qualified; (3) was rejected; and (4) that the position was filled with a younger person with
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similar qualifications. See Cotton v. City of Alameda, 812 F.2d 1245, 1247 (9th Cir.1987).
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Plaintiff’s claim for age discrimination is vague and conclusory. She claims she
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was not allowed to submit an application for employment, and that the position was given to one
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of the court employee defendants, but she has not set forth facts alleging each of the prima facie
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factors, including whether she was of sufficient age to be entitled to protection under the ADEA,
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nor whether she was qualified for the position. Again, if plaintiff decides to pursue this claim,
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she will be required to plead sufficient facts to set forth a prima facie case of discrimination.
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4. American’s with Disabilities Act
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To establish a violation of Title II of the ADA, a plaintiff must show that (1) she
is a qualified individual with a disability; (2) she was excluded from participation in or otherwise
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discriminated against with regard to a public entity’s services, programs, or activities, and (3)
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such exclusion or discrimination was by reason of her disability. See Weinreich v. Los Angeles
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County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997).
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Plaintiff fails to indicate what title of the ADA she claims the defendants violated,
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but the court is assuming she intended to set forth a Title II violation. She again, however, fails
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to plead sufficient facts to state a prima facie violation. Not only does she fail to plead what
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disability she has to qualify her for ADA protection, she fails to set forth what services, programs
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or activities she was excluded from. She does mention the need for a cane or wheelchair, but use
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of such equipment is unclear. If she decides to pursue this claim, she will similarly need to plead
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sufficient facts as to her disability, and how she was excluded or discriminated against
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specifically.
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5. State Law Claims
Finally, plaintiff alleges a variety of state law violations. As she has not
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sufficiently plead violation of any Federal law, the court need not exercise its supplemental
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jurisdiction over these claims at this time. If plaintiff successfully identifies which claims she
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wishes to proceed on, and successfully files a complaint which sufficiently states a claim, she
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may also attempt to include those state law claims that are related to the Federal claims she
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1
chooses to proceed on.
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VI. CONCLUSION
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The factual statements in plaintiff’s complaint are simply too vague and
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conclusory for the court to determine whether this action is frivolous, fails to state a claim for
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relief, or if this court has jurisdiction over her claims. Either way, the court has determined that
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the complaint does not contain a short and plain statement as required by Federal Rule of Civil
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Procedures 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint
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must give fair notice and state the elements of the claim plainly and succinctly. See Jones v.
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Comty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least
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some degree of particularity overt acts which defendants engaged in that support her claim, and
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how those act violated her rights. See id. Because plaintiff has failed to comply with the
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requirements of Rule 8(a)(2), the complaint must be dismissed. However, as it appears possible
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that some of the deficiencies identified in this order may be cured by amending the complaint,
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plaintiff is entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith,
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203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).
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Plaintiff is informed that, as a general rule, an amended complaint supersedes the
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original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,
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following dismissal with leave to amend, all claims alleged in the original complaint which are
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not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th
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Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior
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pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An
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amended complaint must be complete in itself without reference to any prior pleading. See id.
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If plaintiff chooses to amend the complaint, plaintiff must decide which of the
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claims raised in the original complaint and discussed herein she wishes to proceed with.
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Pursuant to Rule 21, if plaintiff continues to attempt to proceed on unrelated claims against
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unrelated parties, the court may dismisses unrelated defendants and/or sever any claim against a
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1
party. Plaintiff must also demonstrate how the conditions or treatment complained of have
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resulted in a deprivation of her constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.
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1980). The complaint must allege in specific terms how each named defendant is involved, and
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must set forth some affirmative link or connection between each defendant’s actions and the
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claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,
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588 F.2d 740, 743 (9th Cir. 1978).
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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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1.
Plaintiff’s complaint is dismissed with leave to amend; and
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2.
Plaintiff shall file an amended complaint within 30 days of the date of
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service of this order.
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DATED: February 12, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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