McDaniel v. The United States, et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/23/2015 DISMISSING the 5 First Amended Complaint with leave to amend; GRANTING the plaintiff thirty days to file a second amended complaint; CAUTIONING the plaintiff that a failure to timely file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TANYA GRACE McDANIEL,

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No. 2:14-cv-2213-TLN-EFB PS

Plaintiff,
v.

ORDER

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THE UNITED STATES, et al.,

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Defendants.

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This case, in which plaintiff is proceeding in propria persona and in forma pauperis,

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proceeds on plaintiff’s first amended complaint.1 ECF No. 5. Pursuant to § 1915(e)(2), the court

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must dismiss the case at any time if it determines the allegation of poverty is untrue, or if the

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action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks

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monetary relief against an immune defendant.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).
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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 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 (1976),

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

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

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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“requires a complaint to include a short and plain statement of the claim showing that the pleader

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

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

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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. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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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 complaint is brought under 42 U.S.C. § 1983 and purports to allege various

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federal and state law claims against the United States of America; County of Yolo; the Yolo

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County Public Agency Risk Management Insurance Authority (“YCPARMIA”); Robert Martin

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and Mirana Griese, both employees of the YCPARMIA; Yolo County District Attorney Resieg;

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the City of Davis; the Davis Police Department; fifteen Davis Police Officers; and three

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employees working dispatch for the Davis Police Department. ECF No. 1 at 3-4.

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Plaintiff, who describes herself as a disabled multiracial woman, alleges an ongoing

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“pattern of abuse from the” Davis Police Department. Id. at 7. She includes various disjointed

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and incoherent allegations that defendants, among other actions, “harassed, stalked, and misused

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their sirens for years to scare and unnerve the Plaintiff;” engaged in racial profiling; refused to

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investigate plaintiff’s “drug trafficking neighbors; vandalism crimes to her car and bike, threats to

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harm her, racist slurs and other harassments,” and “refus[ed] to prevent crimes committed against

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her.” See generally ECF No. 1. The events allegedly occurred as early as April 2005, and as late

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as the filing of the operative complaint. Plaintiff further claims that she requested help from the

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District Attorney, the Mayor of Davis, and the Department of Justice, but each were unwilling to

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investigate the Davis Police Department. Plaintiff claims that defendants’ conduct violated her

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rights under the Fourth, Eighth, Ninth, and Fourteenth Amendments to the United States

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Constitution, and denied her equal protection of law and procedural due process.

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Plaintiff’s complaint must be dismissed for failure to state a claim. Her allegations are so

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vague and conclusory that the court cannot determine where one alleged incident giving rise to a

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claim stops and another begins. Plaintiff fails to allege the specific facts that support each

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particular violation of her constitutional rights. She also fails to identify which defendant she

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believes are responsible for each violation. Instead, she provides a prolix narrative of various

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unrelated events that she believes violated numerous constitutional rights. As drafted, plaintiff

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has failed to give each defendant fair notice of the claims asserted against them. Furthermore,

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given that many of the alleged events appear to be unrelated and involve different defendants, the

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complaint appears to violate Federal Rule of Civil Procedure 20(a)(2).2

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The bulk of plaintiff’s claims appear to be brought under 42 U.S.C. § 1983 for violation of

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plaintiff’s constitutional rights. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege

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two essential elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting under the color

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of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant is not liable on a

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civil rights claim unless the facts establish the defendant’s personal involvement in the

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constitutional deprivation or a causal connection between the defendant’s wrongful conduct and

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the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989);

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Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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Although a supervisor’s failure to train subordinates may constitute the type of personal

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involvement on which § 1983 liability may be premised, to state a claim for failure to train a

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plaintiff must allege facts that show that the alleged failure amounted to deliberate indifference.

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Cannell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998). The complaint must allege facts

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showing that the training provided was inadequate and that the inadequacy was the result of a

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conscious choice by the supervisory defendant. Id. at 1213–14; see also Clement v. Gomez, 298

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F.3d 898, 905 (9th Cir. 2002) (a plaintiff must allege facts showing that, in light of the duties

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assigned to specific individuals, the need for more or different training is so obvious, and the

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inadequacy so likely to result in violations of constitutional rights, that the policy-makers can

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reasonably be said to have been deliberately indifferent to that need).

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A municipal entity or its departments (such as a county, a county jail, or a county

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employee acting in an official capacity) is liable under section 1983 only if a plaintiff shows that

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his constitutional injury was caused by employees acting pursuant to the municipality’s policy or

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Federal Rule of Civil Procedure 20(a)(2) provides, in relevant part, that “[p]ersons . . .
may be joined in one action as defendants if: (A) a right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and (B) any question of law or fact common to all
defendants will arise in the action.”
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custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New

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York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival

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Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). In addition, such local government entities may not be

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held vicariously liable under section 1983 for the unconstitutional acts of its employees under a

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theory of respondeat superior. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997).

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That is, a plaintiff may not sue any defendant on the theory that the defendant is automatically

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liable for the alleged misconduct of subordinate officers. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009).

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Plaintiff’s allegations are too vague and conclusory to identify which defendant engaged

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in which specific act that deprived plaintiff of a federally protected right. Nor do the allegations

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identify as to each defendant what right was deprived and how the alleged acts would constitute a

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violation of that right. Although the Federal Rules adopt a flexible pleading policy, a complaint

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must give fair notice of the claims asserted against each defendant and state the elements of the

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claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984). Plaintiff must allege at least some conduct by each defendant which, if taken as true,

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would entitle plaintiff to relief under section 1983. As plaintiff has failed to do so, any claim

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under section 1983 must be dismissed.

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The complaint also references Title VI of the Civil Rights Act of 1964. To state a claim

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under Title VI, “a plaintiff must allege that (1) the entity involved is engaging in racial

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discrimination; and (2) the entity involved is receiving federal financial assistance.” Fobbs v.

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Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994). “Because Title VI is directed

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at programs that receive federal assistance, there is no right of action against individual

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employees or agents of those entities.” Aguirre v. San Leandro Police Dept., 2011 WL 738292,

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at *3 (N.D. Cal. Feb. 22, 2011). Plaintiff has failed to allege specific facts establishing these two

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elements and therefore has failed to state a claim under Title VII.

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Plaintiff also makes reference to the Americans with Disabilities Act. Title II of the

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Americans with Disabilities Act (“ADA”), prohibits a public entity from discriminating against a

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qualified individual with a disability on the basis of disability. 42 U.S.C. § 12132. In order to
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state a claim that a public program or service violated Title II of the ADA, a plaintiff must show:

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(1) he is a “qualified individual with a disability”; (2) he was either excluded from participation in

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or denied the benefits of a public entity’s services, programs, or activities, or was otherwise

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discriminated against by the public entity; and (3) such exclusion, denial of benefits, or

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discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265

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(9th Cir. 2004); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (“If a

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public entity denies an otherwise ‘qualified individual’ ‘meaningful access’ to its ‘services,

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programs, or activities’ ‘solely by reason of’ his or her disability, that individual may have an

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ADA claim against the public entity.”).

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“To recover monetary damages under Title II of the ADA . . . , a plaintiff must prove

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intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 F.3d

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1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate indifference,

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which “requires both knowledge that a harm to a federally protected right is substantially likely,

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and a failure to act upon that likelihood.” Id. at 1139.

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“In suits under Title II of the ADA . . . the proper defendant usually is an organization

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rather than a natural person . . . . Thus, as a rule, there is no personal liability under Title II.”

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Roundtree v. Adams, No. 1:01-cv-06502-OWW-LJO, 2005 U.S. Dist. LEXIS 40517, at *22 (E.D.

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Cal. Dec. 1, 2005) (quotations and citations omitted). Indeed, a plaintiff cannot bring an action

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under 42 U.S.C. § 1983 against a State official in his individual capacity to vindicate rights

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created by Title II of the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). Thus, an

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ADA plaintiff may seek injunctive relief against an individual defendant only if the defendant is

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sued in his or her official capacity. Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir.

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2003). Although plaintiff describes herself as disabled, she has failed to allege that she was

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denied any benefit on account of her disability. Accordingly, she also fails to state an ADA

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claim.

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The complaint also names District Attorney Resieg as a defendant. Prosecutors, however,

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are generally immune from suit for acts taken in their official capacity. See Kalina v. Fletcher,

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522 U.S. 118, 123–24 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 269–70 (1993); Imbler v.
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Pachtman, 424 U.S. 409, 427, 430–31 (1976). Plaintiff does not allege that Resieg acted outside

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his official capacity and therefore it appears that he is immune from suit.

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Lastly, plaintiff names the United States of America as a defendant and purports to assert

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claims under the Federal Torts Claims Act and Bivens v. Six Unknown Named Agents of Federal

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Bureau of Narcotics, 403 U.S. 388 (1971). The complaint, however, is devoid of any factual

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allegations concerning federal actors. Instead, all of plaintiff’s claims appear to be based on

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conduct by county employees and police officers working for the Davis Police Department.

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Accordingly, plaintiff also fails to allege a claim against the United States of America.

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For all the foregoing reasons, plaintiff’s compliant must be dismissed for failure to state a

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claim. Plaintiff, however, will be granted leave to file an amended complaint, if she can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ.

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P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, the

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claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). Unrelated claims against

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different defendants must be pursued in multiple lawsuits. See Fed. R. Civ. P. 20(a)(2).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s compliant is dismissed with leave to amend, as provided herein; and

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2. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint. The amended complaint must bear the docket number assigned to this case and be

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titled “Second Amended Complaint.” Failure to timely file an amended complaint in accordance

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with this order will result in a recommendation this action be dismissed.

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DATED: November 23, 2015.

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