Rogers v. Brown et al

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 10/23/17 ORDERING that The complaint filed 8/8/17 1 is DISMISSED with leave to amend. Within twenty-eight days from the date of this order, an amended complaint shall be filed that cures the defects noted in this order and complies with the FRCP and the Local Rules of Practice. The amended complaint must bear the case number assigned to this action and must be titled "Amended Complaint." (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KIM EDWARD ROGERS,

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Plaintiff,

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v.

No. 2:17-cv-1643 KJM DB PS

ORDER

EDMUND G. BROWN JR., et al.

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Defendants.

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Plaintiff, Kim Rogers, 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). Pending

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before the court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains of illegal traffic stops.
The court is required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated

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below, plaintiff’s complaint will be dismissed with leave to amend.

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I.

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Plaintiff’s Application to Proceed In Forma Pauperis
Plaintiff’s in forma pauperis application makes the financial showing required by 28

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U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma

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pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
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leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

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complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

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1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

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Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

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Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

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IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

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or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

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District Court to examine any application for leave to proceed in forma pauperis to determine

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whether the proposed proceeding has merit and if it appears that the proceeding is without merit,

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the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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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:

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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.

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Fed. R. Civ. P. 8(a).

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II.

Plaintiff’s Complaint

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As noted below, plaintiff’s complaint is deficient in several respects.

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A)

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The complaint is brought pursuant to 42 U.S.C. § 1983 and concerns incidents occurring

Statute of Limitations

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on September 11, 2013, November 15, 2014, and February 5, 2016. (Compl. (ECF No. 1) at 4-5.)

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Title 42 U.S.C. § 1983 provides that,

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[e]very person who, under color of [state law] ... subjects, or causes
to be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983 does not contain a specific statute of limitations. “Without a federal

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limitations period, the federal courts ‘apply the forum state’s statute of limitations for personal

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injury actions, along with the forum state’s law regarding tolling, including equitable tolling,

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except to the extent any of these laws is inconsistent with federal law.’” Butler v. National

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Community Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v.

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Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927

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(9th Cir. 2004). Before 2003, California’s statute of limitations for personal injury actions was

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one year. See Jones, 393 F.3d at 927. Effective January 1, 2003, however, in California that

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limitations period became two years. See id.; Cal. Code Civ. P. § 335.1.

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Here, this action was filed on August 8, 2017. (ECF No. 1.) Accordingly, in the absence

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of tolling, only the incident occurring on February 5, 2016, is within the applicable two-year

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statute of limitations period.

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B)

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Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that

Rule 8

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plaintiff is entitled to relief. In this regard, plaintiff’s complaint consists of vague and conclusory

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allegations. For example, the complaint alleges that on November 15, 2014, “said listed

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California Highway Patrol Officers had a duty to protect [plaintiff] from 4th Amendment

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constitutional violations infringed upon his person by Officer Wesley J Fish.” (Compl. (ECF No.

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1) at 12.) The complaint then fails to allege any factual allegations identifying a named defendant

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and any alleged wrongful conduct. The complaint also alleges that on February 5, 2016, “Officer

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Christopher L. Matthews followed plaintiff . . . before pulling plaintiff over for excessive speed.”

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(Id. at 13.) However, no wrongful conduct is alleged against defendant Matthews.

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Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

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complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

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state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

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and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

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does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

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enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

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557). A plaintiff must allege with at least some degree of particularity overt acts which the

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defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.

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C)

Eleventh Amendment Immunity

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The complaint names as defendants in their official capacities California Governor

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Edmund G. Brown, Jr., and former California Highway Patrol Commissioner Joseph A. Farrow,

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while seeking monetary and injunctive relief. (Compl. (ECF No. 1) at 2, 6-7.) A claim against a

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state official in their official capacity is a claim against the state itself. See Will v. Michigan

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Dep’t of State Police, 491 U.S. 58, 71 (1989) (“a suit against a state official in his or her official

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capacity is not a suit against the official but rather is a suit against the official’s office. As such, it

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is no different from a suit against the State itself”).

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The Ninth Circuit has recognized that “[t]he State of California has not waived its

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Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court, and

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the Supreme Court has held that § 1983 was not intended to abrogate a State’s Eleventh

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Amendment immunity.” Brown v. California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir.

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2009) (quoting Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999)). However,

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defendants sued in their official capacities are not entitled to Eleventh Amendment immunity with

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respect to claims seeking injunctive relief. Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988)

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(“[T]he eleventh amendment bars actions against state officers sued in their official capacities for

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past alleged misconduct involving a complainant’s federally protected rights, where the nature of

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the relief sought is retroactive, i.e., money damages, rather than prospective, e.g., an injunction”).

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In this regard, plaintiff cannot seek monetary damages from state officials sued in their

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official capacities.1

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III.

Leave to Amend
For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned

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has carefully considered whether plaintiff may amend the complaint to state a claim upon which

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relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,

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prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d

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1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

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701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the

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court does not have to allow futile amendments).

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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff

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may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts

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in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.

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Moreover, it appears that the allegations against defendant Brown concern “two Assembly bills
passed under Governor Edmund Brown, Jr.” (Compl. (ECF No. 1) at 10.) However, a governor
is entitled to absolute immunity for the act of signing a bill into law. See Torres-Rivera v.
Calderon-Serra, 412 F.3d 205, 213 (1st Cir. 2005) (“[A] governor who signs into law or vetoes
legislation passed by the legislature is also entitled to absolute immunity for that act.”).
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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

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1988)).

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Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend

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would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted

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leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file

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an amended complaint “the tenet that a court must accept as true all of the allegations contained

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in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause

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of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678.

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“While legal conclusions can provide the complaint’s framework, they must be supported by

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factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line

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from conceivable to plausible[.]” Id. at 680 (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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must also include concise but complete factual allegations describing the conduct and events

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which underlie plaintiff’s claims.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. The complaint filed August 8, 2017 (ECF No. 1) is dismissed with leave to

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amend.2
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Plaintiff need not file another application to proceed in forma pauperis at this time unless
plaintiff’s financial condition has improved since the last such application was submitted.
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2. 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.3 The amended complaint must bear the case number

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

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3. Failure to comply with this order in a timely manner may result in a recommendation

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that this action be dismissed.

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Dated: October 23, 2017

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DLB:6
DB\orders\orders.pro se\rogers1643.dism.lta.ord

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Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.
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