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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIM EDWARD ROGERS, 12 Plaintiff, 13 14 v. No. 2:17-cv-02070-TLN-CKD (PS) ORDER EDMUND G. BROWN, JR, et al., 15 Defendants. 16 17 Plaintiff Kim Edward Rogers, who is proceeding without counsel in this action, has 18 requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF No. 2.) 19 Plaintiff’s application in support of his request to proceed in forma pauperis makes the showing 20 required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiff’s request to proceed in 21 forma pauperis. The determination that a plaintiff may proceed in forma pauperis does not complete the 22 23 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 24 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 25 malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief 26 against an immune defendant. 27 28 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. 6 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 7 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 8 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 16 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. 17 Rhodes, 416 U.S. 232, 236 (1974). 18 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 19 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear 20 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 21 pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll 22 v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin v. Murphy, 745 F.2d 1221, 1230 (9th 23 Cir. 1984). 24 Here, plaintiff’s complaint purportedly bring claims under Title VI of the 1964 Civil 25 Rights Act and 42 U.S.C. § 1983 (see ECF No. 1 at 8), but it lacks sufficient specificity to state a 26 claim upon which relief may be granted. Broadly, plaintiff alleges that defendants, Governor 27 Edmund G. Brown, Attorney General Xavier Becerra, and Sacramento Mayor Darrell Steinberg 28 have instituted policies and programs that have caused “a deprivation of Constitutional and 2 1 federal rights for the majority of African-Americans.” (Id. at 10.) According to plaintiff, “[t]he 2 state of California and the city of Sacramento has particularly strong feelings against African- 3 American men, and focus on making traffic stops and arrests of men of African-American 4 descent, while ignoring actual Latin American illegal immigrant criminal offenders.” (Id. at 11.) 5 Plaintiff has not pointed to any specific conduct by defendants that has caused any specific harm 6 to him. Rather, he cites to laws passed in the state that may help or benefit undocumented 7 immigrants, and which he assumes harm African Americans. (See Id. at 11–13.) Plaintiff’s 8 complaint is entirely conclusory, and full of naked assertions. The complaint fails to state a claim 9 and lacks facial plausibility because plaintiff has failed to plead “factual content that [would] 10 allow[] the court to draw the reasonable inference that the defendant[s are] liable for the 11 misconduct alleged.” Iqbal, 556 U.S. at 678. To state a claim, plaintiff must provide more than a 12 list of general grievances with state and local policy decisions. 13 Additionally, to the extent that plaintiff attempts to bring claims on behalf of all African- 14 Americans in California, it appears that he lacks standing. See Lujan v. Defs. of Wildlife, 504 15 U.S. 555, 560, (1992) (“[T]he irreducible constitutional minimum of standing contains three 16 elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally 17 protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not 18 “conjectural” or “hypothetical,” ’ . . . Second, there must be a causal connection between the 19 injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the 20 challenged action of the defendant, and not ... th[e] result [of] the independent action of some 21 third party not before the court.’ . . . Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ 22 that the injury will be ‘redressed by a favorable decision.’”) Without a viable claim for relief, 23 however, the court is unable to adequately analyze standing. For these reasons, the complaint is 24 subject to dismissal. 25 Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that 26 plaintiff could allege additional facts to potentially state a claim, under 42 U.S.C. § 1983 and/or 27 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), the court finds it 28 appropriate to grant plaintiff an opportunity to amend the complaint. 3 1 If plaintiff elects to file an amended complaint, it shall be captioned “First Amended 2 Complaint,” shall be typed or written in legible handwriting, shall address the deficiencies 3 outlined in this order, and shall be filed within 28 days of this order. 4 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 5 to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended 6 complaint be complete in itself without reference to any prior pleading. As a general rule, an 7 amended complaint supersedes the original complaint, and once the first amended complaint is 8 filed, the original complaint no longer serves any function in the case. 9 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 10 plaintiff determines that he is unable to amend his complaint in compliance with the court’s order 11 at this juncture, he may file a notice of voluntary dismissal of his claims without prejudice 12 pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) within 28 days of this order. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 15 2. Plaintiff’s complaint is dismissed, but with leave to amend. 16 3. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in 17 accordance with this order, or (b) a notice of voluntary dismissal of the action without 18 prejudice. 19 4. Failure to file either a first amended complaint or a notice of voluntary dismissal by 20 the required deadline may result in the imposition of sanctions, including potential 21 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 22 41(b). 23 24 IT IS SO ORDERED. Dated: October 25, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 25 26 27 14/ 28 4

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