(PS) Ciurar v. State of California et al

Filing 3

ORDER signed by Magistrate Judge Deborah Barnes on 3/31/2021 DISMISSING the 1 complaint with leave to amend within 28 days. Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAGDALINA C. CIURAR,

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Plaintiff,

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No. 2:20-cv-2089 JAM DB PS

v.

ORDER

STATE OF CALIFORNIA, et al.,

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Defendants.

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Plaintiff Magdalina C. Ciurar is proceeding in this action pro se. This matter was referred

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to the 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 seeks reinstatement of a State of California

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issued pharmacy technician license.
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

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.

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Plaintiff’s Complaint
Review of plaintiff’s complaint finds it is defective in several respects. In this regard, the

complaint alleges that this action is brought “pursuant to California Business and Professions

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Code § 4060” and the “Fair Labor Standards Act,” but does not allege a specific cause of action

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or facts in support of a stated cause of action. Although the Federal Rules of Civil Procedure

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adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s

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claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R.

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Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A

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pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of

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action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of

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‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (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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From the allegations found in the complaint it appears that plaintiff wishes to challenge

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the decision of the California “State Pharmacy Board” to revoke plaintiff’s Pharmacy Technician

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License. (Compl. (ECF No. 1) at 4-5.) “Courts have long recognized that licenses which enable

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one to pursue a profession or earn a livelihood are protected property interests for purposes of a

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Fourteenth Amendment analysis.” Jones v. City of Modesto, 408 F.Supp.2d 935, 950 (E.D. Cal.

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2005). “The Fourteenth Amendment protects individuals against the deprivation of liberty or

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property by the government without due process. A section 1983 claim based upon procedural

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due process thus has three elements: (1) a liberty or property interest protected by the

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Constitution; (2) a deprivation of the interest by the government; (3) lack of process.” Portman v.
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County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A plaintiff may state a substance due

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process claim where they show “they are unable to pursue an occupation . . . and, second, that this

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inability is due to actions that substantively were ‘clearly arbitrary and unreasonable, having no

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substantial relation to the public health, safety, morals, or general welfare.’” Wedges/Ledges of

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California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 65 (9th Cir. 1994) (quoting FDIC v.

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Henderson, 940 F.2d 465, 474 (9th Cir. 1991)).

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However, it appears that the only defendants named in the complaint are the State of

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California or departments of the State of California. In general, the Eleventh Amendment bars

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suits against a state, absent the state’s affirmative waiver of its immunity or congressional

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abrogation of that immunity. Pennhurst v. Halderman, 465 U.S. 89, 98-99 (1984); Simmons v.

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Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Yakama Indian Nation

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v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999); see also Krainski v.

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Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010)

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(“The Eleventh Amendment bars suits against the State or its agencies for all types of relief,

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absent unequivocal consent by the state.”). “[T]he Eleventh Amendment [also] bars a federal

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court from hearing claims by a citizen against dependent instrumentalities of the state.” Cerrato

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v. San Francisco Community College Dist., 26 F.3d 968, 972-73 (9th Cir. 1994).

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To be a valid waiver of sovereign immunity, a state’s consent to suit must be

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“unequivocally expressed in the statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996); see also

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Pennhurst, 465 U.S. at 99; Yakama Indian Nation, 176 F.3d at 1245. “[T]here can be no consent

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by implication or by use of ambiguous language.” United States v. N.Y. Rayon Importing Co.,

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329 U.S. 654, 659 (1947). Courts must “indulge every reasonable presumption against waiver,”

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Coll. Sav. Bank v. Florida Prepaid, 527 U.S. 666, 682 (1999), and waivers “must be construed

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strictly in favor of the sovereign and not enlarged beyond what the [statutory] language requires.”

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United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citations, ellipses, and internal

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quotation marks omitted). “To sustain a claim that the Government is liable for awards of

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monetary damages, the waiver of sovereign immunity must extend unambiguously to such

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monetary claims.” Lane, 518 U.S. at 192.
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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)).

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III.

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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 and over which the court would have jurisdiction. “Valid reasons for

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denying leave to amend include undue delay, bad faith, prejudice, and futility.” California

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Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also

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Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)

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(holding that while leave to amend shall be freely given, the court does not have to allow futile

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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, it appears plaintiff may be able to amend the complaint to allege a claim against an

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individual in their official capacity for injunctive relief. See Dittman v. California, 191 F.3d

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1020, 1029 (9th Cir. 1999) (“In the end, Plaintiff’s only viable claim is one for prospective

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injunctive relief against defendant Nielsen in her official capacity for allegedly violating the due

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process clause of the Fourteenth Amendment.”). Plaintiff’s complaint will therefore be

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dismissed, and plaintiff will be granted leave to file an amended complaint. Plaintiff is cautioned,
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however, that if plaintiff elects to file an amended complaint “the tenet that a court must accept as

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true all of the allegations contained in a complaint is inapplicable to legal conclusions.

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

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

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

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must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 680

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(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.
CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. The complaint filed October 19, 2020 (ECF No. 1) is dismissed with leave to

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amend. 1

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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. 2 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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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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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: March 31, 2021

/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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