Porter v. City of Davis Police Department et al

Filing 4

ORDER signed by Magistrate Judge Dale A. Drozd on 6/16/15 GRANTING 2 Motion to Proceed IFP. The complaint is DISMISSED with leave to amend within 28 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LASONJA PORTER,

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No. 2:14-cv-2984 KJM DAD PS

Plaintiff,
v.

ORDER

CITY OF DAVIS POLICE, et al.,
Defendants.

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Plaintiff Lasonja Porter is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has

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requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff has submitted an in forma pauperis application that make the showing required

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by 28 U.S.C. § 1915(a)(1). Plaintiff’s request for leave to proceed in forma pauperis will

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therefore be granted.

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The determination that plaintiff may proceed in forma pauperis does not complete the

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inquiry required by the statutes. The court must dismiss an in forma pauperis case at any time if

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the allegation of poverty is found to be untrue or if it is determined that the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it

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lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin
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v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western

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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:
A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.
FED. R. CIV. P. 8(a).

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Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing

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that she in entitled to relief. In this regard, plaintiff’s complaint names as defendants the City of

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Davis Police Department, Chief of Police Landy Black, Assistant Chief of Police Darren Pytel,

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Lieutenant Tom Waltz, Police Officer Jeff Vignau and Police Officer Derek Russell. In her

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complaint plaintiff “alleges multiple unlawful acts committed by employees of the government of

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the City of Davis, California which have unlawfully terrorized and targeted plaintiff . . . in part

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because she is black.” (Compl. (Dkt. No. 1) at 2.) The complaint then goes on to discuss “[s]ome

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specific examples involving same officer (Jeff, Vignau).” (Id. at 3.) Thereafter, the complaint

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recounts an incident on November 14, 2013, where the vehicle plaintiff was traveling in as a

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passenger was stopped by “a Davis Police car” for a suspected DUI, even though the driver of the
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vehicle allegedly “did not receive a breathalyzer test or any test . . . nor did he get a ticket for a

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DUI.” (Id. at 4-5.) The complaint also recounts a December 28, 2013 incident involving “Officer

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Vignau,” “Officer Russell,” and “Lieutenant Waltz,” which plaintiff alleges “resulted in use of

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extreme force.” (Id. at 5-7.) Finally, the complaint references a January 18, 2014 incident in

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which plaintiff’s husband was allegedly stopped by “Officer Viganu” (sic) for riding a bicycle

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without a light. (Id. at 10.) After recounting these various distinct “examples,” (id. at 3),

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plaintiff’s complaint purports to assert several state law causes of action, as well as a claim

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against all defendants for the violation of plaintiff’s right “to equal protection under the law.” (Id.

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at 15.) In this regard, plaintiff alleges that the defendants discriminated against her “due to her

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ethnicity and past history of complaints.” (Id. at 15-16.)
In order to state a claim for violation of the Equal Protection clause of the Fourteenth

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Amendment, a plaintiff must allege that the individual defendants, acting under color of state law

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“acted in a discriminatory manner and that the discrimination was intentional.” Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000) (citation omitted). A “long line of

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Supreme Court cases make clear that the Equal Protection clause requires proof of discriminatory

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intent or motive.” Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995) (citations omitted).

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Plaintiff’s complaint, however, does not clearly allege how each defendant allegedly

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violated plaintiff’s rights under the Equal Protection clause. Instead, the complaint merely refers

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to identified examples involving defendant Officer Vignau. Although the Federal Rules of Civil

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Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the

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plaintiff’s claims and must allege facts that state the elements of each claim plainly and

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succinctly. FED. R. CIV. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th

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Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

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elements of cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked

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assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009)

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(quoting Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of

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particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones,

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733 F.2d at 649.
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In her complaint plaintiff also alleges in conclusory fashion that the defendants violated

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her rights “pursuant to 42 U.S.C. ' 1981.” (Compl. (Dkt. No. 1) at 16.) “In order to establish a

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claim under § 1981, a plaintiff must establish that (1) he or she is a member of a racial minority;

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(2) the defendant intended to discriminate against plaintiff on the basis of race; and (3) the

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discrimination concerned one or more of the activities enumerated in the statute (i.e., the right to

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make and enforce contracts, sue and be sued, give evidence, etc.).” Jones v. Tozzi, No. 1:05-CV-

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0148 OWW DLB, 2006 WL 1582311, at *7 (E.D. Cal. June 2, 2006) (citing Mian v. Donaldson,

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Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)). See also Green v. State Bar of

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Texas, 27 F.3d 1083, 1086 (5th Cir. 1994) (“To establish a claim under § 1981, a plaintiff must

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allege facts in support of the following elements: (1) the plaintiff is a member of a racial

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minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the

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discrimination concerns one or more of the activities enumerated in the statute.”). Here,

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plaintiff’s complaint fails to allege how any defendant intended to discriminate against her or how

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the discrimination concerned one or more of the activities enumerated in 42 U.S.C. '1981.

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Finally, plaintiff’s complaint asserts a claim for “MONELL LIABILITY,” arguing that

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“high-ranking officials in the City of Davis Police Department and Manager’s Office have

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approved and set in place discriminatory law enforcement policies, practices, procedures and

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customs.” (Compl. (Dkt. No. 1) at 16. ) A municipality may be liable under § 1983 where the

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municipality itself causes the constitutional violation through a “policy or custom, whether made

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by its lawmakers or those whose edicts or acts may fairly be said to represent official policy[.]”

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Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Municipal liability in a §

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1983 case may be premised upon: (1) an official policy; (2) a “longstanding practice or custom

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which constitutes the standard operating procedure of the local government entity;” (3) the act of

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an “official whose acts fairly represent official policy such that the challenged action constituted

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official policy;” or (4) where “an official with final policy-making authority delegated that

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authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir.

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2008). To sufficiently plead a Monell claim, allegations in a complaint “may not simply recite

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the elements of a cause of action, but must contain sufficient allegations of underlying facts to
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give fair notice and to enable the opposing party to defend itself effectively.” AE ex rel.

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Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d

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1202, 1216 (9th Cir. 2011)).

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Here, the Monell claim presented in plaintiff’s complaint fails to contain any allegations

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of underlying facts. Moreover, plaintiff’s Monell claim is alleged against “all defendants.”

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(Compl. (Dkt. No. 1) at 17.) As noted above, a municipality may be liable under Monell.

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“Monell does not concern liability of individuals acting under color of state law.” Guillory v.

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Orange County, 731 F.2d 1379, 1382 (9th Cir. 1984).

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Accordingly, plaintiff’s complaint will be dismissed for failure to state a cognizable claim.

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The undersigned has carefully considered whether plaintiff may amend the complaint to state a

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claim upon which relief can be granted. “Valid reasons for denying leave to amend include

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undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan

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Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake Pharm. Ass’n v. Klamath

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Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall

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be freely given, the court does not have to allow futile amendments). However, when evaluating

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the failure to state a claim, the complaint of a pro se plaintiff may be dismissed “only where ‘it

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appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (quoting

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Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v. Shapiro, 488 F.3d 1202, 1205

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(9th Cir. 2007) (“Dismissal of a pro se complaint without leave to amend is proper only if it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”)

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(quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)).

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Here, the court cannot yet say that it appears beyond doubt that leave to amend would be

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futile. Plaintiff’s complaint will therefore be dismissed, and she will be granted leave to file an

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amended complaint to attempt to cure the deficiencies noted above. Plaintiff is cautioned,

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however, that if she elects to file an amended complaint in this action “the tenet that a court must

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accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.

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Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the

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complaint’s framework, they must be supported by factual allegations.” Id. at 679. Those facts

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must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 680

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(quoting Twombly, 550 U.S. at 557).

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Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an

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amended complaint complete. Local Rule 220 requires that any amended complaint be complete

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in itself without reference to prior pleadings. The amended complaint will supersede the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,

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just as if it were the initial complaint filed in the case, each defendant must be listed in the caption

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and identified in the body of the complaint, and each claim and the involvement of each

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defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file

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in this action must also include concise but complete factual allegations describing the conduct

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and events which underlie plaintiff’s claims.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s December 29, 2014, application to proceed in forma pauperis (Dkt. No. 2) is

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granted.

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2. The complaint filed December 29, 2014 (Dkt. No. 1) is dismissed with leave to amend.

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3. Within twenty-eight days from the date of this order, an amended complaint shall be

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filed that cures the defects noted in this order and complies with the Federal Rules of Civil

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Procedure and the Local Rules of Practice. The amended complaint must bear the case number

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assigned to this action and must be titled “Amended Complaint.”1

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Alternatively, if plaintiff no longer wishes to pursue this action, plaintiff may file a notice of
voluntary dismissal without prejudice pursuant to Rule 41 of the Federal Rules of Civil
Procedure.
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4. Failure to comply with this order in a timely manner may result in a

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recommendation that this action be dismissed.

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Dated: June 16, 2015

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DAD:6
Ddad1\orders.pro se\porter2984.ifp.lta.ord.docx

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