Singh v. The City of Elk Grove, et al.

Filing 5

ORDER signed by Magistrate Judge Deborah Barnes on 5/9/2018 DISMISSING 4 Amended Complaint WITH LEAVE TO AMEND. Within 28 days from the date of this order, a second amended complaint shall be filed that cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and the Local Rules of Practice. The second amended complaint must bear the case number assigned to this action and must be titled Second Amended Complaint. (Hunt, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RON SINGH,

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Plaintiff,

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No. 2:17-cv-2027 MCE DB PS

v.

ORDER

THE CITY OF ELK GROVE; NATHAN
CHAMPION,

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Defendants.

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

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accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court are

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plaintiff’s amended complaint and motion to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. 1 (ECF Nos. 1 & 4.) Plaintiff’s amended complaint alleges that the defendants engaged in

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an illegal search and seizure.

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The amended complaint purports to be brought on behalf of plaintiff, “all others similarly
situated,” and “others who will join this lawsuit . . . .” (Am. Compl. (ECF No. 4) at 1.) Plaintiff
is advised that the right to represent oneself pro se is personal to the plaintiff and does not extend
to other parties. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); see also Russell
v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing in propria persona has no
authority to represent anyone other than himself.”). Thus, a pro se plaintiff may not bring a
lawsuit on behalf of another. See McShane v. United States, 366 F.2d 286, 288 (9th Cir.1966)
(affirming the dismissal of a class action for lack of jurisdiction because a pro se plaintiff “has no
authority to appear as an attorney for others than himself”).
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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 amended 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
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.

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Plaintiff’s Amended Complaint
As was true of the original complaint, the amended complaint fails to contain a short and

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plain statement of a claim showing that plaintiff is entitled to relief. In this regard, the three-page

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amended complaint consists almost entirely of vague and conclusory allegations. The entirety of

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the amended complaint’s factual allegations are as follows:

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The subject property is located at 6136 Demonte Way, Elk Grove,
California. In 2017, the Elk Grove City had illegal surveillance at
the subject property without any warrant. Almost every week on
different occasions within last two years including on January 16,
2016, on March 15, 2016, on September 18, 2016, on December 28,
2016, on January 9, 2017 and on September 9, 2017, the Elk Grove
City Police and Nathan Champion both together illegally trespassed
the subject property, illegally damaged the subject property and
illegally seized the personal properties of plaintiffs without any
warrant but with a conspiracy to take the properties of plaintiffs
illegally. In 2017, the Police Chief and the attorneys for the City of
Elk Grove admitted to have a policy, practice and custom for such
said acts for the house owned by the Asian persons.
(Am. Compl. (ECF No. 4) at 2) (emphasis in original).

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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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Moreover, the amended complaint does not explain how defendant Nathan Champion
acted under color of state law. In this regard, the complaint cites to 42 U.S.C. § 1983. (Am.

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Compl. (ECF No. 1) at 1.) To state a cause of action under 42 U.S.C. § 1983, a complaint must

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allege: “(1) that defendant was acting ‘under color of state law’ at the time of the acts complained

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of, and (2) that defendant deprived plaintiff of [a] right, privilege, or immunity secured by the

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Constitution or Laws of the United States.” Freier v. New York Life Insurance Co., 679 F.2d

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780, 783 (9th Cir. 1982); see also Cobine v. City of Eureka, 250 F.Supp.3d 423, 437 (N.D. Cal.

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2017) (“In order to state a claim under Section 1983 for violation of the Constitution, a plaintiff

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must allege two essential elements: (1) that a right secured by the Constitution or laws of the

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United States was violated and (2) that the alleged violation was committed by a person acting

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under the color of state law.”). “[P]rivate parties are not generally acting under color of state law,

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and . . . ‘conclusionary allegations, unsupported by facts, will be rejected as insufficient to state a

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claim under the Civil Rights Act.’” Price v. State of Hawaii, 939 F.2d 702, 707-08 (9th Cir.

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1991) (quoting Jones, 733 F.2d at 649).

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With respect to defendant City of Elk Grove, “[i]n Monell v. Department of Social

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Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality may not be held liable

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for a § 1983 violation under a theory of respondeat superior for the actions of its subordinates.”

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Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc). In this regard,

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“[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice,

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or custom of the entity can be shown to be a moving force behind a violation of constitutional

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rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S.
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at 694). Thus, municipal liability in a § 1983 case may be premised upon: (1) an official policy;

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(2) a “longstanding practice or custom which constitutes the standard operating procedure of the

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local government entity;” (3) the act of an “official whose acts fairly represent official policy such

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that the challenged action constituted official policy;” or (4) where “an official with final policy-

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making authority delegated that authority to, or ratified the decision of, a subordinate.” Price v.

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Sery, 513 F.3d 962, 966 (9th Cir. 2008).

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To sufficiently plead a Monell claim, allegations in a complaint “may not simply recite the

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elements of a cause of action, but must contain sufficient allegations of underlying facts to give

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fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v.

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Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216

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(9th Cir. 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom,

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explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the

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plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference[.]”

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Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore,

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148 F.Supp.3d 936, 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims

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that fail to identify the specific content of the municipal entity’s alleged policy or custom.”).

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III.

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

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undersigned has carefully considered whether plaintiff may further 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).

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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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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, given plaintiff’s pro se status, the undersigned will provide plaintiff with a final

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opportunity to amend the complaint. Plaintiff’s amended complaint will therefore be dismissed,

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and plaintiff will be granted leave to file a second amended complaint. Plaintiff is again

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cautioned, however, that if plaintiff elects to file a second amended complaint “the tenet that a

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court must accept as true all of the allegations contained in a complaint is inapplicable to legal

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conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can

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

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Those facts must be sufficient to push the claims “across the line from conceivable to

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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 second amended complaint will supersede the

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amended complaint just as the amended complaint superseded the original complaint. See Loux

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v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended complaint, just as if it were

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the initial complaint filed in the case, each defendant must be listed in the caption and identified

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in the body of the complaint, and each claim and the involvement of each defendant must be

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sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include

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concise but complete factual allegations describing the conduct and events which underlie

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plaintiff’s claims.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. The amended complaint filed November 30, 2017 (ECF No. 4) is dismissed with leave

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to amend 2;

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2. Within twenty-eight days from the date of this order, a second amended complaint

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

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Civil Procedure and the Local Rules of Practice. 3 The second amended complaint must bear the

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case number assigned to this action and must be titled “Second Amended Complaint”; and

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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: May 9, 2018

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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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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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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