(PS) Nelson-Rogers v. Allred

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/7/2022 RECOMMENDING that this action be Dismissed with prejudice for failure to comply with Fed. R. Civ. P. 8 and for failure state a claimupon which relief can be granted. Referred to Judge John A. Mendez. Objections due within 21 days after being served with these findings and recommendations. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARY ALICE NELSON-ROGERS,

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Plaintiff,

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No. 2:21-cv-1809 JAM AC PS

v.

FINDINGS AND RECOMMENDATIONS

DONNA ALLRED, Sacramento County
Clerk Recorder,
Defendant.

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Plaintiff proceeds in this action pro se, and the matter was accordingly referred to the

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undersigned for pretrial proceedings by E.D. Cal. R. 302(c)(21). Plaintiff has filed a Second

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Amended Complaint. For the reasons explained below, the court finds that this case should be

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dismissed without further leave to amend.
I.

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PROCEDURAL HISTORY

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On October 1, 2021, plaintiff filed the original complaint and a request for leave to

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proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915; she also submitted the affidavit

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required by that statute. ECF Nos. 1, 2. However, on October 4, 2021, plaintiff paid the filing

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fee and the request to proceed IFP was therefore stricken as moot. ECF No. 3. Accordingly, the

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complaint was not screened pursuant to 28 U.S.C. § 1915(e)(2).

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The complaint named Donna Allred, Sacramento County Clerk Recorder, as the sole

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defendant, under 42 U.S.C. § 1983. ECF No. 1 at 2, 4. The only fact alleged was that “The

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County Clerk Recorder of Sacramento County has allowed the use of its public facilities to

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corporations seeking to harm the Trust and Estate of Mary Alice Nelson Rogers, while at the

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same time denying the use of its public services to the Plaintiff, Mary Alice Nelson Rogers.” Id.

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at 5. Plaintiff alleged that unspecified incidents occurred on September 14, 2021 at 1:00 p.m. and

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on September 27, 2021 at 1:30 p.m. Id.

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On October 12, 2021, plaintiff requested entry of default against the defendant, and the
Clerk of Court entered default. ECF Nos. 9, 10. On November 19, 2021, plaintiff moved for

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default judgment. ECF No. 11. On November 29, 2021, plaintiff again moved for default

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judgment, this time setting a hearing date for January 5, 2022. ECF No. 12.

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On December 2, 2021, the court issued an order to show cause directed to plaintiff,

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explaining that the complaint did not state a claim upon which relief could be granted and

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ordering plaintiff to show cause in writing no later than December 22, 2021 why this case should

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not be dismissed for failure to state a claim. ECF No. 13. The court noted that plaintiff could

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discharge the order to show cause by filing an amended complaint that addressed the problems in

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the original complaint by setting forth the factual basis for plaintiff’s claims. Id. On December

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10, 2021, plaintiff filed an amended complaint. ECF No. 14.

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The first amended complaint again named Donna Allred, Sacramento County Clerk

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Recorder, as the sole defendant. ECF No. 14 at 3. In the “Introduction” section of the first

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amended complaint, plaintiff stated that she “seeks judicial redress for violations of her civil

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rights due to racial profiling” and seeks to confirm “that people of color may use public

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government facilities, just like white citizens, without having to suffer the indignities of racial

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discrimination at the hands of government officials.” Id. at 2. In the “Facts” section of the first

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amended complaint, plaintiff stated in conclusory fashion that defendant “has allowed the use of

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its public facilities to corporations seeking to harm the Trust and Estate of Mary Alice Nelson-

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Rogers, while at the same time denying the use of its public services and facility to the Plaintiff,

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Mary Alice Nelson Rogers.” Id. at 6. Plaintiff did not explain how or when she was denied use
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of the public services and facility at issue. The first complaint did not identify any specific

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instance of discrimination, or any act of defendant Donna Allred (or any other county official or

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employee).

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On December 22, 2021, the court rejected plaintiff’s first amended complaint for the same

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reason her initial complaint was rejected: it failed to identify any specific illegal act or harm

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resulting therefrom. As with the original complaint, the court could not tell from the first

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amended complaint how plaintiff was discriminated against or what the defendant did that might

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provide a basis for liability. ECF No. 16. The undersigned explained that conclusory statements

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that laws have been violated are not enough, and informed plaintiff that because she could not

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possibly win relief on the basis of the first amended complaint, sua sponte dismissal would be

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appropriate. Id. at 3. The undersigned provided plaintiff with the standards for a sufficient

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complaint under Federal Rule of Civil Procedure 8 and the elements of a claim under 42 U.S.C. §

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1983, and directed her to submit a second amended complaint that “briefly but plainly identif[ied]

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the discriminatory acts for which plaintiff seeks relief, and the factual basis for each claim.” ECF

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No. 16 at 5. Plaintiff filed her second amended complaint on January 5, 2022. ECF No. 17.

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II.

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THE SECOND AMENDED COMPLAINT
The second amended complaint is substantially similar to plaintiff’s first two complaints.

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It contains numerous conclusory statements that the law has been violated, and a great deal of

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legal language, but again provides no detail whatsoever as to what allegedly illegal act was

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committed by the defendant. The only sentence that contains any specific facts is this:

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The County Clerk Recorder of Sacramento County on the following
dates and approximate times, September 15, 2021 at 1:00 p.m.,
September 22, 2021 at 1:30 p.m. and September 27, 2021 at 1:30
p.m. allowed the use of its public facilities to corporations seeking to
harm the Trust and Estate of Mary Alice Nelson-Rodgers, while at
the same time denying the sue of its public services and facility to
the Plaintiff, Mary Alice Nelson-Rodgers.

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ECF No. 17 at 6.
III.

THE SECOND AMENDED COMPLAINT IS SUBJECT TO DISMISSAL
When a complaint clearly does not state a claim upon which the court can grant relief, a

court may dismiss the case on its own (“sua sponte”), at the outset, without leave to amend. See
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Reed v. Lieurance, 863 F.3d 1196, 1207-08 (9th Cir. 2017) (affirming district court’s sua sponte

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dismissal of claim under Rule 12(b)(6), Fed. R. Civ. P.). Though plaintiff asserts that several

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federal and state statutes and constitutional provisions have been violated, the second amended

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Complaint does not identify any specific illegal act. As with the original complaint and the first

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amended complaint, the court cannot tell from the second amended complaint how plaintiff was

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discriminated against or what the defendant did that might provide a basis for liability. Plaintiff

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has now been told twice that statements that laws have been violated are not enough. There is no

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relief that the court can possibly provide on the basis of the second amended complaint. Because

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plaintiff “cannot possibly win relief,” sua sponte dismissal is appropriate. See Wong v. Bell, 642

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F.2d 359, 362 (9th Cir. 1981); see also Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.

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1987).

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IV.

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FURTHER LEAVE TO AMEND IS NOT WARRANTED
A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as

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stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)). Leave to amend does not continue

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indefinitely, however, and prior failure to cure deficiencies may support denial of further

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amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). At this juncture, leave to amend is no

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longer appropriate. Plaintiff has had two opportunities to cure the deficiencies that persist in her

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second amended complaint. The undersigned finds that further leave to amend would be futile.

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V.

CONCLUSION
For the reasons explained above, IT IS HEREBY RECOMMENDED that this action be

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dismissed, with prejudice, for failure to comply with Fed. R. Civ. P. 8 and for failure state a claim

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upon which relief can be granted.

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These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: January 7, 2022

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