Johnson v. County of Monterey

Filing 46

ORDER ACCEPTING "DUE PROCESS" BRIEF AS SECOND AMENDED COMPLAINT AND DISMISSING ACTION WITH PREJUDICE. Signed by Judge Jeffrey S. White on 4/20/12. (jjoS, COURT STAFF) (Filed on 4/20/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

ROY JOHNSON,

11
For the Northern District of California

United States District Court

10

12

No. C 10-04633 JSW

Plaintiff,
ORDER ACCEPTING “DUE
PROCESS” BRIEF AS SECOND
AMENDED COMPLAINT AND
DISMISSING ACTION WITH
PREJUDICE

v.
COUNTY OF MONTEREY,

13

Defendant.
/

14
15

On March 9, 2012, this Court issued an Order granting Defendant’s motion to dismiss.

16

(Docket No. 40 (Order Granting Motion to Dismiss First Amended Complaint).) Plaintiff had

17

asserted a claim that Defendant violated his due process rights, which he brought pursuant to 42

18

U.S.C. § 1983. The Court dismissed that claim, because Plaintiff had not alleged facts to show

19

that Defendant had a custom, policy or practice relating to the alleged constitutional violations.

20

(See id. at 7:1-8:2.) However, the Court granted Plaintiff one final opportunity to amend, and it

21

directed that Plaintiff file his amended complaint by no later than April 27, 2012.

22

On April 9, 2012, the Court received an envelope of materials from Plaintiff. According

23

to the proof of service submitted with those materials, Plaintiff submitted a “due process brief”

24

and “various attachments.” The Court only received pages 17 and 18 of the purported brief.

25

Because the Court did not receive a complete copy of the “due process brief,” the Court could

26

not construe the documents it did receive as an amended complaint. As such, it required

27

Plaintiff to file a complete copy of his brief by April 20, 2012, if he wanted the Court to

28

consider it.

1

On April 18, 2012, the Court received a fully copy of the due process brief, which shall

2

be filed forthwith. The Court liberally construes this brief to be Plaintiff’s Second Amended

3

Complaint. When Plaintiff filed his original complaint, he was granted leave to proceed in

4

forma pauperis, pursuant to 28 U.S.C. § 1915. The in forma pauperis statute provides that the

5

Court shall dismiss the case if at any time the Court determines the action (1) is frivolous or

6

malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

7

against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

8
9

The Court has reviewed the Second Amended Complaint. Plaintiff still fails to allege
any facts that show the Defendant has a custom, policy or practice that relates to his alleged
violations of his due process rights. Accordingly, Plaintiff still fails to state a claim against the

11
For the Northern District of California

United States District Court

10

Defendant under 42 U.S.C. § 1983. See Monell v. New York City Dep’t of Social Services, 436

12

U.S. 658, 691 (1978); Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th Cir. 2000); Oviat v.

13

Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). The Court also advised Plaintiff that it was his

14

final opportunity to amend his claims. Having failed to state a claim, the Court DISMISSES

15

this action WITH PREJUDICE.

16

The Court shall issue a separate judgment, and the Clerk shall close this file.

17

IT IS SO ORDERED.

18

Dated: April 20, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
2

1

UNITED STATES DISTRICT COURT

2

FOR THE

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
ROY JOHNSON,

Case Number: CV10-04633 JSW

6
Plaintiff,

CERTIFICATE OF SERVICE

7
v.
8
COUNTY OF MONTEREY et al,
9
Defendant.

/

11
For the Northern District of California

United States District Court

10

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on April 20, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
15
16
17 Roy Johnson
P.O. Box 5371
18 Corning, CA 96021
19
20 Dated: April 20, 2012
21
22
23
24
25
26
27
28

Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk

1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
ROY JOHNSON,
6

Case Number: CV10-04633 JSW
Plaintiff,

7

CERTIFICATE OF SERVICE
v.

8
COUNTY OF MONTEREY et al,
9
Defendant.

/

11
For the Northern District of California

United States District Court

10

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on April 20, 2012, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.
15
16
17 Roy Johnson
P.O. Box 5371
18 Corning, CA 96021
19
20 Dated: April 20, 2012
21
22
23
24
25
26
27
28

Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk