Cook-Morales et al v. Davis et al

Filing 10

ORDER signed by Magistrate Judge Craig M. Kellison on 5/23/2018 DISMISSING complaint with leave to amend. Plaintiff shall file an amended complaint within 30 days of the date of service of this order. (York, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FERNANDO REGGIE
COOK-MORALES, SR.,

No. 2:16-cv-2388-MCE-CMK

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Plaintiff,
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vs.

ORDER

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WILLIAM J. DAVIS, et al.,
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Defendants.
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Plaintiff, proceeding in propria persona, brings this civil rights action under 42
U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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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I. PLAINTIFF’S ALLEGATIONS
Plaintiff alleges his child was taken from his custody without due process. He

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states the defendants did not allow him to make temporary care arrangements for his child when

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he was incarcerated in a separate matter.

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II. DISCUSSION

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Plaintiff’s complaint suffers from numerous deficiencies. As to his complaint in

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general, § 1983 imposes liability upon any person who, acting under color of state law, deprives

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another of a federally protected right. 42 U.S.C. § 1983 (1982). “To make out a cause of action

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under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law

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(2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United

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States, 781 F.2d 1334, 1338 (9th Cir.1986).

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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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Plaintiff appears to be bringing in an official-capacity suit against county

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employees. The Supreme Court has explained the difference between personal- and

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official-capacity suits. “Personal-capacity suits seek to impose personal liability upon a

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government official for actions he takes under color of state law. Official-capacity suits, in
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contrast, ‘generally represent only another way of pleading an action against an entity of which

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an officer is an agent.’ ” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing Scheuer v.

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Rhodes, 416 U.S. 232, 237-38 (1974); quoting Monell, 436 U.S. at 690, n. 55). “Suits against

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state officials in their official capacity therefore should be treated as suits against the State.”

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Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Graham, 473 U.S. at 166). “[I]n an

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official-capacity action . . . a governmental entity is liable under § 1983 only when the entity

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itself is a ‘moving force’ behind the deprivation; thus, in an official-capacity suit the entity’s

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“policy or custom” must have played a part in the violation of federal law.” Graham, 473 U.S. at

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166 (citing Polk County v. Dodson, 454 U.S. 312, 326 (1981); Monell, 436 U.S. at 694).

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Here, there are no specific allegations in the complaint that any policy or custom

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played a part in the alleged violation of plaintiff’s rights. While exactly what happened is

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unclear, it appears that what ever happened in the removal of plaintiff’s child from his custody

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were defendants’ individual actions, not necessarily based on some policy or custom. Plaintiff’s

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requested relief is similarly unclear. It is possible he is asking for prospective declaratory or

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injunctive relief, as he has requested “reform and recourse,” but it is unclear what that means.

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In addition, if plaintiff is only seeking a declaratory judgment, it is unclear

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whether plaintiff can satisfy the case or controversy requirement. “It goes without saying that

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those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold

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requirement imposed by Article III of the Constitution by alleging an actual case or controversy.”

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City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (citing Flast v. Cohen, 392 U.S. 83,

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94–101 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421–425 (1969) (opinion of MARSHALL,

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J.)). “Past exposure to illegal conduct does not in itself show a present case or controversy

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regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.”

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O’Shea v. Littleton, 144 U.S. 488, 493 (1974).

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In this case, it appears that even if the events plaintiff’s alleges violated his
Constitutional rights, there does not appear to be any significant or real possibility of continuing
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or future injury. From what the court can understand of plaintiff’s complaint, the alleged

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violation, removal of his child from his custody without due process, occurred due to his arrest

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on a separate matter. It would appear, therefore, that any threat to plaintiff would only occur if

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plaintiff is arrested again, which “does not create the actual controversy that must exist for a

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declaratory judgment to be entered.” Lyons, 461 U.S. at 104.

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In addition, plaintiff has named three judges as defendants: William J. Davis,

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Laura Masunaga, and Karen L. Dixon. Judges are absolutely immune from damage actions for

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judicial acts taken within the jurisdiction of their courts. See Schucker v. Rockwood, 846 F.2d

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1202, 1204 (9th Cir. 1988) (per curiam). This immunity is lost only when the judge acts in the

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clear absence of all jurisdiction or performs an act that is not judicial in nature. See id. Judges

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retain their immunity even when they are accused of acting maliciously or corruptly, see Mireles

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v. Waco, 502 U.S. 9, 11 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978),

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and when they are accused of acting in error, see Meek v. County of Riverside, 183 F.3d 962,

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965 (9th Cir. 1999). This immunity extends to the actions of court personnel when they act as

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“an integral part of the judicial process.” See Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385,

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1390 (9th Cir. 1987). There is nothing in the complaint to indicate these individuals are named

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for actions arising outside of their judicial duties. In fact, as set forth above, these individuals are

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named only in their official capacity. It is therefore clear on the face of the complaint that these

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individuals are immune from this action. If plaintiff includes these individuals in any amended

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complaint that is filed, the undersigned will recommend they be dismissed as immune

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defendants.

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Overall, plaintiff’s claims and allegations are too vague for the court to determine

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whether he is able to state a claim for relief. The court has an obligation to construe pro se

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pleadings liberally. See Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc).

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However, the court’s liberal interpretation of a pro se complaint may not supply essential

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elements of the claim that were not pled. Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d
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266, 268 (9th Cir. 1982). The factual statements in plaintiff’s complaint are simply too vague

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and conclusory for the court to determine whether this action is frivolous, fails to state a claim

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for relief, or if this court has jurisdiction over the claims. Either way, the court has determined

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that the complaint does not contain a short and plain statement as required by Federal Rule of

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Civil Procedures 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. See

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Jones v. Comty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at

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least some degree of particularity overt acts which defendants engaged in that support his claim,

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and 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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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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Plaintiff’s complaint is dismissed with leave to amend; and

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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: May 23, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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