Rogers v. Brown et al

Filing 3

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/25/2017 ORDERING plaintiff's 2 Motion to Proceed IFP is GRANTED. Plaintiff's complaint is DISMISSED, but with leave to amend. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint or (b) a notice of voluntary dismissal of the action without prejudice. (Zignago, K.)

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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-02070-TLN-CKD (PS)

ORDER

EDMUND G. BROWN, JR, et al.,

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Defendants.

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Plaintiff Kim Edward Rogers, who is proceeding without counsel in this action, has

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requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.)

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Plaintiff’s application in support of his request to proceed in forma pauperis makes the showing

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required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiff’s request to proceed in

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forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any

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time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief

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against an immune defendant.

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This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. §
636(b)(1).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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To avoid dismissal for failure to state a claim, a complaint must contain more than “naked

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assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of

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action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21

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(1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear

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that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma

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pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th

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Cir. 1984).

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Here, plaintiff’s complaint purportedly bring claims under Title VI of the 1964 Civil

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Rights Act and 42 U.S.C. § 1983 (see ECF No. 1 at 8), but it lacks sufficient specificity to state a

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claim upon which relief may be granted. Broadly, plaintiff alleges that defendants, Governor

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Edmund G. Brown, Attorney General Xavier Becerra, and Sacramento Mayor Darrell Steinberg

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have instituted policies and programs that have caused “a deprivation of Constitutional and
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federal rights for the majority of African-Americans.” (Id. at 10.) According to plaintiff, “[t]he

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state of California and the city of Sacramento has particularly strong feelings against African-

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American men, and focus on making traffic stops and arrests of men of African-American

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descent, while ignoring actual Latin American illegal immigrant criminal offenders.” (Id. at 11.)

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Plaintiff has not pointed to any specific conduct by defendants that has caused any specific harm

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to him. Rather, he cites to laws passed in the state that may help or benefit undocumented

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immigrants, and which he assumes harm African Americans. (See Id. at 11–13.) Plaintiff’s

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complaint is entirely conclusory, and full of naked assertions. The complaint fails to state a claim

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and lacks facial plausibility because plaintiff has failed to plead “factual content that [would]

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allow[] the court to draw the reasonable inference that the defendant[s are] liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. To state a claim, plaintiff must provide more than a

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list of general grievances with state and local policy decisions.

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Additionally, to the extent that plaintiff attempts to bring claims on behalf of all African-

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Americans in California, it appears that he lacks standing. See Lujan v. Defs. of Wildlife, 504

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U.S. 555, 560, (1992) (“[T]he irreducible constitutional minimum of standing contains three

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elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally

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protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not

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“conjectural” or “hypothetical,” ’ . . . Second, there must be a causal connection between the

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injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the

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challenged action of the defendant, and not ... th[e] result [of] the independent action of some

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third party not before the court.’ . . . Third, it must be ‘likely,’ as opposed to merely ‘speculative,’

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that the injury will be ‘redressed by a favorable decision.’”) Without a viable claim for relief,

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however, the court is unable to adequately analyze standing. For these reasons, the complaint is

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subject to dismissal.

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Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that

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plaintiff could allege additional facts to potentially state a claim, under 42 U.S.C. § 1983 and/or

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), the court finds it

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appropriate to grant plaintiff an opportunity to amend the complaint.
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If plaintiff elects to file an amended complaint, it shall be captioned “First Amended

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Complaint,” shall be typed or written in legible handwriting, shall address the deficiencies

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outlined in this order, and shall be filed within 28 days of this order.

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Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order

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to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint, and once the first amended complaint is

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filed, the original complaint no longer serves any function in the case.

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Finally, nothing in this order requires plaintiff to file a first amended complaint. If

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plaintiff determines that he is unable to amend his complaint in compliance with the court’s order

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at this juncture, he may file a notice of voluntary dismissal of his claims without prejudice

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pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order.

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Accordingly, IT IS HEREBY ORDERED that:

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

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2. Plaintiff’s complaint is dismissed, but with leave to amend.

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3. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in

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accordance with this order, or (b) a notice of voluntary dismissal of the action without

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prejudice.

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4. Failure to file either a first amended complaint or a notice of voluntary dismissal by

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the required deadline may result in the imposition of sanctions, including potential

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dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure

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41(b).

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IT IS SO ORDERED.
Dated: October 25, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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14/17-2070.rogers.grantIFP.lta

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