Lewis v. Duffy et al

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/9/2018 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend. Plaintiff is GRANTED 30 days from the date of this order to file an amended complaint. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK JEROME LEWIS,

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Plaintiff,

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No. 2:17-cv-934-TLN-EFB PS

v.

ORDER

JENNIFER DUFFY, et al,

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Defendants.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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Determining that plaintiff may proceed in forma pauperis does not complete the required

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the 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. As discussed

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below, plaintiff’s complaint must be dismissed for failure to state a claim.

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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). See 28 U.S.C. § 636(b)(1).
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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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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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Under this standard, the court must accept as true the allegations of the complaint in

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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the

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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading

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

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

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

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which it rests.” Twombly, 550 U.S. at 555 (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. 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 brings this action against various individuals, corporation, and local governments

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and their entities, alleging claims for violation of his rights under the Fifth, Sixth, and Fourteenth

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Amendments to the United States Constitution and for copyright infringement. Id. at 5. Plaintiff

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alleges that he “was a victim of identity theft and was being filmed under the name Derrick

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Lewis.” ECF No. 1 at 6. He further alleges that defendants Sacramento District Attorney’s

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Office, the Sacramento Sherriff’s Department, the “Sacramento Justice Department,” Jennifer

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Duffy, Monica Williams, Rachel McCain, Ramon Lenoir “were all party [sic] to the violation of”

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his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments. Id. He also alleges

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that defendant “Golden State Finance Authority is the holder of a trust for the employees of the

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state of California.” Id. at 6.

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Plaintiff’s complaint must be dismissed for failure to state a claim. Plaintiff purports to

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assert a claim for violation of his rights under the Fifth Amendment, but he fails to allege that any

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of the defendants are federal actors. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)

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(To state a claim for violation of plaintiff’s due process rights under the Fifth Amendment, a

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plaintiff must allege that the defendants are federal actors).

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Plaintiff also fails to allege facts sufficient to state a claim for violation of his

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

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allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was

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

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(1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not

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liable on a 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). Plaintiff does not allege that any of the

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individual defendants acted under color of state law.

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As for the named governmental entities, a municipal entity or its departments (such as a

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county, a county jail, or a county employee acting in an official capacity) is liable under section

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1983 only if plaintiff shows that his constitutional injury was caused by employees acting

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pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle,

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429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691

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(1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). Plaintiff fails

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to allege that his constitutional rights were violated pursuant to any policy or custom. Further,

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such local government entities may not be held vicariously liable under section 1983 for the

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unconstitutional acts of its employees under a theory of respondeat superior. See Board of Cty.

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Comm’rs. v. Brown, 520 U.S. 397, 403 (1997). That is, a plaintiff may not sue any defendant on

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the theory that the defendant is automatically liable for the alleged misconduct of subordinate

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officers. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).

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Plaintiff also cannot maintain a section 1983 claim against the corporate defendants.

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Section “1983 excludes from its reach merely private conduct, no matter how discriminatory or

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wrong.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999).

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Lastly, plaintiff fails to allege any facts in support of his conclusion that this case involves

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copyright infringement. Accordingly, plaintiff’s complaint must be dismissed for failure to state

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a claim. However, plaintiff is granted leave to file an amended complaint. Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an

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opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to

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file an amended complaint, the amended complaint shall clearly identify the claims asserted as to

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each defendant and set forth the factual allegations against that defendant(s) which give rise to a

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cause. It shall specify a basis for this court’s subject matter jurisdiction. Any amended complaint

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shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a

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single set of circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in

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double-spaced text on paper that bears line numbers in the left margin, as required by Eastern
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District of California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear

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headings to delineate each claim alleged and against which defendant or defendants the claim is

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

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

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

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

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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3. 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 must

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be labeled “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: January 9, 2018.

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