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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LASONJA PORTER, 12 13 14 15 No. 2:14-cv-2984 KJM DAD PS Plaintiff, v. ORDER CITY OF DAVIS POLICE, et al., Defendants. 16 17 Plaintiff Lasonja Porter is proceeding in this action pro se. This matter was referred to the 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has 19 requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 Plaintiff has submitted an in forma pauperis application that make the showing required 21 by 28 U.S.C. § 1915(a)(1). Plaintiff’s request for leave to proceed in forma pauperis will 22 therefore be granted. 23 The determination that plaintiff may proceed in forma pauperis does not complete the 24 inquiry required by the statutes. The court must dismiss an in forma pauperis case at any time if 25 the allegation of poverty is found to be untrue or if it is determined that the action is frivolous or 26 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 27 an immune defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it 28 lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin 1 1 v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 2 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 3 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 4 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 5 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 6 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 7 true the material allegations in the complaint and construes the allegations in the light most 8 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 9 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 10 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 11 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 12 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 13 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 14 15 16 17 18 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). 19 Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 20 that she in entitled to relief. In this regard, plaintiff’s complaint names as defendants the City of 21 Davis Police Department, Chief of Police Landy Black, Assistant Chief of Police Darren Pytel, 22 Lieutenant Tom Waltz, Police Officer Jeff Vignau and Police Officer Derek Russell. In her 23 complaint plaintiff “alleges multiple unlawful acts committed by employees of the government of 24 the City of Davis, California which have unlawfully terrorized and targeted plaintiff . . . in part 25 because she is black.” (Compl. (Dkt. No. 1) at 2.) The complaint then goes on to discuss “[s]ome 26 specific examples involving same officer (Jeff, Vignau).” (Id. at 3.) Thereafter, the complaint 27 recounts an incident on November 14, 2013, where the vehicle plaintiff was traveling in as a 28 passenger was stopped by “a Davis Police car” for a suspected DUI, even though the driver of the 2 1 vehicle allegedly “did not receive a breathalyzer test or any test . . . nor did he get a ticket for a 2 DUI.” (Id. at 4-5.) The complaint also recounts a December 28, 2013 incident involving “Officer 3 Vignau,” “Officer Russell,” and “Lieutenant Waltz,” which plaintiff alleges “resulted in use of 4 extreme force.” (Id. at 5-7.) Finally, the complaint references a January 18, 2014 incident in 5 which plaintiff’s husband was allegedly stopped by “Officer Viganu” (sic) for riding a bicycle 6 without a light. (Id. at 10.) After recounting these various distinct “examples,” (id. at 3), 7 plaintiff’s complaint purports to assert several state law causes of action, as well as a claim 8 against all defendants for the violation of plaintiff’s right “to equal protection under the law.” (Id. 9 at 15.) In this regard, plaintiff alleges that the defendants discriminated against her “due to her 10 11 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 12 Amendment, a plaintiff must allege that the individual defendants, acting under color of state law 13 “acted in a discriminatory manner and that the discrimination was intentional.” Reese v. 14 Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000) (citation omitted). A “long line of 15 Supreme Court cases make clear that the Equal Protection clause requires proof of discriminatory 16 intent or motive.” Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995) (citations omitted). 17 Plaintiff’s complaint, however, does not clearly allege how each defendant allegedly 18 violated plaintiff’s rights under the Equal Protection clause. Instead, the complaint merely refers 19 to identified examples involving defendant Officer Vignau. Although the Federal Rules of Civil 20 Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the 21 plaintiff’s claims and must allege facts that state the elements of each claim plainly and 22 succinctly. FED. R. CIV. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th 23 Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 24 elements of cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked 25 assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) 26 (quoting Twombly, 550 U.S. at 555, 557. A plaintiff must allege with at least some degree of 27 particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 28 733 F.2d at 649. 3 1 In her complaint plaintiff also alleges in conclusory fashion that the defendants violated 2 her rights “pursuant to 42 U.S.C. ' 1981.” (Compl. (Dkt. No. 1) at 16.) “In order to establish a 3 claim under § 1981, a plaintiff must establish that (1) he or she is a member of a racial minority; 4 (2) the defendant intended to discriminate against plaintiff on the basis of race; and (3) the 5 discrimination concerned one or more of the activities enumerated in the statute (i.e., the right to 6 make and enforce contracts, sue and be sued, give evidence, etc.).” Jones v. Tozzi, No. 1:05-CV- 7 0148 OWW DLB, 2006 WL 1582311, at *7 (E.D. Cal. June 2, 2006) (citing Mian v. Donaldson, 8 Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)). See also Green v. State Bar of 9 Texas, 27 F.3d 1083, 1086 (5th Cir. 1994) (“To establish a claim under § 1981, a plaintiff must 10 allege facts in support of the following elements: (1) the plaintiff is a member of a racial 11 minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the 12 discrimination concerns one or more of the activities enumerated in the statute.”). Here, 13 plaintiff’s complaint fails to allege how any defendant intended to discriminate against her or how 14 the discrimination concerned one or more of the activities enumerated in 42 U.S.C. '1981. 15 Finally, plaintiff’s complaint asserts a claim for “MONELL LIABILITY,” arguing that 16 “high-ranking officials in the City of Davis Police Department and Manager’s Office have 17 approved and set in place discriminatory law enforcement policies, practices, procedures and 18 customs.” (Compl. (Dkt. No. 1) at 16. ) A municipality may be liable under § 1983 where the 19 municipality itself causes the constitutional violation through a “policy or custom, whether made 20 by its lawmakers or those whose edicts or acts may fairly be said to represent official policy[.]” 21 Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Municipal liability in a § 22 1983 case may be premised upon: (1) an official policy; (2) a “longstanding practice or custom 23 which constitutes the standard operating procedure of the local government entity;” (3) the act of 24 an “official whose acts fairly represent official policy such that the challenged action constituted 25 official policy;” or (4) where “an official with final policy-making authority delegated that 26 authority to, or ratified the decision of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 27 2008). To sufficiently plead a Monell claim, allegations in a complaint “may not simply recite 28 the elements of a cause of action, but must contain sufficient allegations of underlying facts to 4 1 give fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. 2 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 3 1202, 1216 (9th Cir. 2011)). 4 Here, the Monell claim presented in plaintiff’s complaint fails to contain any allegations 5 of underlying facts. Moreover, plaintiff’s Monell claim is alleged against “all defendants.” 6 (Compl. (Dkt. No. 1) at 17.) As noted above, a municipality may be liable under Monell. 7 “Monell does not concern liability of individuals acting under color of state law.” Guillory v. 8 Orange County, 731 F.2d 1379, 1382 (9th Cir. 1984). 9 Accordingly, plaintiff’s complaint will be dismissed for failure to state a cognizable claim. 10 The undersigned has carefully considered whether plaintiff may amend the complaint to state a 11 claim upon which relief can be granted. “Valid reasons for denying leave to amend include 12 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 13 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988). See also Klamath-Lake Pharm. Ass’n v. Klamath 14 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 15 be freely given, the court does not have to allow futile amendments). However, when evaluating 16 the failure to state a claim, the complaint of a pro se plaintiff may be dismissed “only where ‘it 17 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 18 would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (quoting 19 Haines v. Kerner, 404 U.S. 519, 521 (1972). See also Weilburg v. Shapiro, 488 F.3d 1202, 1205 20 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to amend is proper only if it is 21 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 22 (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)). 23 Here, the court cannot yet say that it appears beyond doubt that leave to amend would be 24 futile. Plaintiff’s complaint will therefore be dismissed, and she will be granted leave to file an 25 amended complaint to attempt to cure the deficiencies noted above. Plaintiff is cautioned, 26 however, that if she elects to file an amended complaint in this action “the tenet that a court must 27 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. 28 Threadbare recitals of the elements of a cause of action, supported by mere conclusory 5 1 statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the 2 complaint’s framework, they must be supported by factual allegations.” Id. at 679. Those facts 3 must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 680 4 (quoting Twombly, 550 U.S. at 557). 5 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 6 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 7 in itself without reference to prior pleadings. The amended complaint will supersede the original 8 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 9 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 10 and identified in the body of the complaint, and each claim and the involvement of each 11 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 12 in this action must also include concise but complete factual allegations describing the conduct 13 and events which underlie plaintiff’s claims. 14 CONCLUSION 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s December 29, 2014, application to proceed in forma pauperis (Dkt. No. 2) is 17 granted. 18 2. The complaint filed December 29, 2014 (Dkt. No. 1) is dismissed with leave to amend. 19 3. Within twenty-eight days from the date of this order, an amended complaint shall be 20 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 21 Procedure and the Local Rules of Practice. The amended complaint must bear the case number 22 assigned to this action and must be titled “Amended Complaint.”1 23 ///// 24 ///// 25 ///// 26 27 28 1 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. 6 1 4. Failure to comply with this order in a timely manner may result in a 2 recommendation that this action be dismissed. 3 Dated: June 16, 2015 4 5 6 DAD:6 Ddad1\orders.pro se\porter2984.ifp.lta.ord.docx 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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