Revoal v. Brown

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/4/13 DISMISSING CASE WITH LEAVE TO AMEND ; Second Amended Complaint due 30 days from the date of service of this order. (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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WILLIAM R. REVOAL, II,
Plaintiff,

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No. 2:13-cv-580-JAM-EFB PS

vs.
EDMUND BROWN, JR.;
COMMUNITY SERVICE PARTNERSHIP,

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Defendants.
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ORDER
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This case, in which plaintiff is proceeding in propria persona and in forma pauperis, was

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referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On

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March 28, 2013, the undersigned granted plaintiff’s application to proceed in forma pauperis but

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dismissed plaintiff’s initial complaint pursuant to 28 U.S.C. § 1915(e)(2) because plaintiff’s

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complaint failed to state any viable federal claims. Dckt. No. 3; see also 28 U.S.C. § 1915(e)(2)

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(directing the court to dismiss an in forma pauperis case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant). After the

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court issued the March 28 order, an amended complaint that plaintiff filed on March 27, 2013

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appeared on the court docket. Therefore, the court has now reviewed plaintiff’s amended

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complaint under § 1915(e)(2). Once again, however, the court determines that plaintiff has
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failed to state any viable federal claims. Accordingly, plaintiff’s first amended complaint will be

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dismissed with leave to amend.

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As noted in the March 28 order, although pro se pleadings are liberally construed, see

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be

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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.

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Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &
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1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question

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jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2)

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allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or

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(3) be authorized by a federal statute that both regulates a specific subject matter and confers

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federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Plaintiff’s original complaint alleges that on March 25, 2013, he was walking past the

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Sacramento County jail and “was approached by an Italian old man who began acting as if

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[plaintiff] had assaulted him.” Compl., Dckt. No. 1, at 2. Plaintiff contends that the man

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“proceeded into the courthouse where [plaintiff] was greeted by [two deputies].” Id. Thereafter,

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the Caucasian man and an unknown Caucasian woman, who appeared to be an employee, “began

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to make false allegations in regards to a false charge [plaintiff] never committed.” Id. Plaintiff

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contends that he then asked the deputies to apprehend “the two frauds” so that plaintiff could

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protect himself from further mishaps, but the deputies denied plaintiff justice and asked plaintiff

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to leave the building, while plaintiff’s “two accusers went free as if nothing happened.” Id.

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Plaintiff contends that this was a direct violation of the U.S. Constitution and negligence by the

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authorities.1 Id. Accordingly, plaintiff requests “sanctions and representation of such actions by

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the Supreme Court.” Id.

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In the Civil Cover Sheet attached to plaintiff’s complaint, plaintiff contends that the
action is brought under the Fourteenth Amendment. Dckt. No. 1 at 3.
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Plaintiff’s first amended complaint seeks to add Community Service Partnership as a

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defendant in plaintiff’s action. Dckt. No. 4. According to plaintiff, on March 27, 2013, plaintiff

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was resting his knees when he “was illegally approached by a community partnership service

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representative requesting [that plaintiff] leave [his] secured area at 9th [and] J [Streets].” Id. at

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2. Plaintiff contends that although he was not blocking the sidewalk or loitering, he was

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harassed by two Community Partnership Service representatives who had a “racial motive.” Id.

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According to plaintiff, within five minutes he was surrounded by Sacramento police, but once it

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was determined that no laws had been broken, plaintiff “was released.” Id.

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Plaintiff’s first amended complaint once again fails to state any viable federal claims.

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Although plaintiff’s first amended complaint once again does not reference any federal statutes,

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plaintiff is again reminded that to state a claim under § 1983, plaintiff must allege: (1) the

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violation of a federal constitutional or statutory right; and (2) that the violation was committed

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by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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Here, plaintiff has not alleged how his federal constitutional or statutory rights were violated.

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Nor has he alleged that the defendant he wishes to add to this action – Community Partnership

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Service – is either a state actor or was otherwise acting under color of law. See Sutton v.

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Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (The party charged with a

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constitutional deprivation under § 1983 must be a person who may fairly be said to be a

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governmental actor) (citation and quotations omitted). Section “1983 excludes from its reach

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merely private conduct, no matter how discriminatory or wrong.” Id. (citing Am. Mfrs. Mut. Ins.

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Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted)). Nor has

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plaintiff shown how the allegations in his first amended complaint against Community

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Partnership Service arise out of the same transaction, occurrence, or series of transactions or

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occurrences as the allegations against Governor Brown in his initial complaint, and/or that there

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are common questions of law or fact common to those defendants, such that joinder of

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plaintiff’s claims against those two defendants would be permissible. See Fed. R. Civ. P.

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20(a)(2); Fed. R. Civ. P. 21.

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Accordingly, plaintiff’s first amended complaint must be dismissed. However, plaintiff

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is granted leave to file a second amended complaint, if he can cure the defects set forth herein

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and in the March 28, 2013 order, if he can allege a basis for this court’s jurisdiction, and if he

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can allege a cognizable legal theory and sufficient facts in support of that cognizable legal

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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file a second amended complaint, the second amended complaint shall

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clearly set forth the allegations against each defendant and shall specify a basis for this court’s

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subject matter jurisdiction. Any second amended complaint shall plead plaintiff’s claims in

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“numbered paragraphs, each limited as far as practicable to a single set of circumstances,” as

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required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper

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that bears line numbers in the left margin, as required by Eastern District of California Local

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Rules 130(b) and 130(c). Any second amended complaint shall also use clear headings to

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delineate each claim alleged and against which defendant or defendants the claim is alleged, as

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required by Rule 10(b), and must plead clear facts that support each claim under each header.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make his second amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Accordingly, once plaintiff files a second amended complaint, the original and first amended

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complaint no longer serve any function in the case. Therefore, “a plaintiff waives all causes of

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action alleged in the original complaint which are not alleged in the amended complaint,”

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London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants not named in

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an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th
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Cir. 1992). Finally, the court cautions plaintiff that failure to comply with the Federal Rules of

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Civil Procedure, this court’s Local Rules, or any court order may result in a recommendation that

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this action be dismissed. See Local Rule 110.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed with leave to amend, as provided

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herein.
2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint. The second amended complaint must bear the docket number assigned to

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this case and must be labeled “Second Amended Complaint.” Failure to timely file a second

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amended complaint in accordance with this order will result in a recommendation this action be

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dismissed.

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DATED: April 4, 2013.

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