School v. Bice, et al.,

Filing 23

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/20/2018 GRANTING 10 Defendants' Motion to Dismiss; the Complaint is DISMISSED for failure to state a claim; Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint; the Initial Scheduling Conference set for 3/21/2018 is hereby VACATED to be reset as needed. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL C. SCHOOL,

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No. 2:17-cv-02156 JAM CKD (PS)

Plaintiffs,
v.

ORDER

BICE, et al.,
Defendants.

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On February 14, 2018, the undersigned held a hearing on defendants’ amended motion to

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dismiss this action pursuant to Rule 12(b)(6). (ECF No. 10.) Plaintiff opposed the motion (ECF

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No. 17), and defendants filed a reply (ECF No. 20). Nicole Roman appeared for defendants, and

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plaintiff appeared pro se. At the close of the hearing, the court took the matter under submission.

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I. BACKGROUND

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Plaintiff, a Grass Valley resident, is proceeding pro se and has paid the filing fee. This
action proceeds on the original complaint filed October 17, 2017. (ECF No. 1, “Compl.”)

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The complaint names as defendants four California Highway Patrol officers: Officer Bice,

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Officer Morrison, Sergeant Nevins, and Commander Steffenson. It purports to bring both Bivens

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and § 1983 claims against defendants. Plaintiff alleges that on May 30, 2017 at 9:15 a.m., he was

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driving his car near an auto parts parking lot when “Officer Bice profiled me, then detained and

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arrested me when there was no breach of the peace.” (Compl. at 5.) “Officer Bice stated he was
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taking me to the courthouse to see the magistrate but instead took me to county jail.” (Id. at 6.)

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Plaintiff characterizes this as a false arrest in which he was denied his federal due process rights,

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among other rights. (Id. at 4.)

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Plaintiff further alleges:

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I was bruised by the handcuffs and forced to sit in an uncomfortable
position unable to move my arms. I was placed under moral duress
when Sgt. Nevins placed his had on his weapon making angry
veiled threats to me in front of a witness. I have suffered
financially due to my kidnapping and the ransoming of my
automobile, and multiple court dates.

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(Id. at 6.) Plaintiff was never given a copy of the ticket until his third arraignment in September.

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(Id. at 8.) Plaintiff sues defendants in their individual and official capacities and seeks $1 million

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in damages. (Id. at 4, 6.)

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II. DISCUSSION

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In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it

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must contain factual allegations sufficient to “raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The pleading must contain something

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more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable

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right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp.

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235-236 (3d ed. 2004).

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Defendants argue that the complaint fails to state a claim under this standard. First, as the

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Eleventh Amendment prohibits damage actions against state officials in their official capacities,

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Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995), plaintiff’s official capacity claims must be

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dismissed. Second, as defendants are not federal officials, plaintiff’s Bivens claims must be

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dismissed.1 Third, as the complaint fails to allege any facts showing the involvement of

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defendants Morrison or Steffenson, these defendants must be dismissed. Moreover, insofar as

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Bivens is the federal analog to suits brought against state officials under 42 U.S.C. § 1983.
Ashcroft v. Iqbal, 556 U.S. 662, 676-76 (2009). “Only federal officials who actually participate in
alleged violations are subject to a Bivens-type suit.” O’Neal v. Eu, 866 F.2d 314 (9th Cir. 1989)
(collecting cases).
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plaintiff’s claims are based on alleged state law violations, they are not actionable under § 1983.

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Cornejo v. County of San Diego, 504 F.3d 853, 855 n. 3 (9th Cir. 2007) (“[A] claim for violation

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of state law is not cognizable under § 1983.”)

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As to the § 1983 claims against Bice and Nevins, plaintiff ‘s allegations do not show that
these defendants committed any constitutional violation. The Civil Rights Act provides:

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Every 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 ... 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. To state a § 1983 claim, a plaintiff must allege facts showing each named

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defendant either exhibited some sort of “direct personal participation in the deprivation” or “set[ ]

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in motion a series of acts by others which the actor [knew] or reasonably should [have known]

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would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-744

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(9th Cir. 1978). There must be an actual causal link between the actions of the named defendants

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and the alleged constitutional deprivation. See Monell, 436 U.S. at 691–92 (1978). Here,

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plaintiff’s vague and conclusory allegations as to Bice and Nevins fail to state cognizable claims

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under § 1983.

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Another defect of the complaint is its failure to meet Rule 8 pleading requirements. Fed.

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R. Civ. P. 8 sets forth general rules of notice pleading in the federal courts. See Swierkiewicz v.

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Sorema, 534 U.S. 506 (2002). Complaints are required to set a forth (1) the grounds upon which

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the court’s jurisdiction rests, (2) a short and plain statement of the claim showing entitlement to

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relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires only “sufficient allegations

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to put defendants fairly on notice of the claims against them.” McKeever v. Block, 932 F.2d 795,

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798 (9th Cir. 1991).

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In his opposition to the motion, plaintiff asserts that the complaint meets Rule 8 pleading

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requirements and “sufficiently alleges consumer harm and damage.” (ECF No. 17 at 1.)

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However, as discussed at the hearing, this is not a consumer or contract case. Plaintiff’s affidavit

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adds little to the complaint’s factual allegations and does not cure the defects outlined above.

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Thus defendants’ motion should be granted.
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III. LEAVE TO AMEND
If the court finds that a complaint should be dismissed for failure to state a claim, the court

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has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-

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30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the

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defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see

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also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given

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leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). Here, plaintiff will be granted an opportunity to

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amend the complaint.

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If plaintiff chooses to amend the complaint, plaintiff must set forth the jurisdictional

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grounds upon which the court’s jurisdiction depends. Federal Rule of Civil Procedure 8(a).

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Further, plaintiff must demonstrate how the conduct complained of has resulted in a deprivation

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of plaintiff’s rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ amended motion to dismiss (ECF No. 10) is granted;

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2. The complaint is dismissed for failure to state a claim;

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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 that complies with the requirements of the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case
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and must be labeled “Amended Complaint”; failure to file an amended complaint in accordance

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with this order will result in a recommendation that this action be dismissed; and

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4. The Initial Scheduling Conference set for March 21, 2018 is hereby vacated, to be reset

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as needed.

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Dated: February 20, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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