Lopes v. City of Livermore, California et al

Filing 11

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT; GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Maxine M. Chesney on December 2, 2008. (mmclc2, COURT STAFF) (Filed on 12/2/2008)

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court are plaintiff's First Amended Complaint ("FAC"), filed November 21, 2008, and plaintiff's application to proceed in forma pauperis, filed September 23, 2008. When a party seeks to proceed in forma pauperis, the district court is required to dismiss the case if the court determines the complaint fails to state a claim upon which relief can be granted. See 28 U.S.C. 1915(e)(2)(B)(ii). On September 29, 2008, the Court dismissed plaintiff's original complaint for failure to state a claim. The Court noted plaintiff had "failed to allege his constitutional rights were violated pursuant to an official policy, practice, or custom of defendants," and granted plaintiff leave to amend to cure such deficiencies. (See Order filed Sept. 29, 2008.) In the FAC, plaintiff has again attempted to plead a violation of 42 U.S.C. 1983 by defendant v. CITY OF LIVERMORE, Defendant. / CORNELIUS LOPES, Plaintiff, No. C-08-4433 MMC ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT; GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City of Livermore.1 The FAC, however, has failed to cure the deficiencies noted in that, like the original complaint, the FAC fails to allege plaintiff's constitutional rights were violated pursuant to an official policy, practice, or custom of defendant, and, consequently, the FAC likewise fails to state a claim. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978); Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) ("Congress intended to hold municipalities liable only when `action pursuant to official municipal policy of some nature caused a constitutional tort.'") (quoting Monell, 436 U.S. at 691). Accordingly, plaintiff's FAC is hereby DISMISSED without further leave to amend.2 IT IS SO ORDERED. Dated: December 2, 2008 MAXINE M. CHESNEY United States District Judge Plaintiff's original complaint also named the City of Livermore Police Department and the City of Livermore Parks Department as defendants; such entities have not been named in the FAC. 2 1 Plaintiff's application to proceed in forma paupers is hereby GRANTED. 2

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