Elliot v. The San Francisco Department of Public Health
Filing
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ORDER GRANTING: 3 MOTION for Leave to Proceed in forma pauperis filed by Vance S. Elliot; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND BY 8/13/2015. Signed by Judge Maria-Elena James on 7/10/2015. (cdnS, COURT STAFF) (Filed on 7/10/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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VANCE S. ELLIOT,
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Case No. 15-cv-03127-MEJ
Plaintiff,
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ORDER GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
v.
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THE SAN FRANCISCO DEPARTMENT
OF PUBLIC HEALTH,
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Defendant.
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United States District Court
Northern District of California
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
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INTRODUCTION
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On July 6, 2015, Plaintiff Vance S. Elliot (“Plaintiff”) filed a Complaint (Dkt. No. 1) and
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an Application to Proceed In Forma Pauperis (Dkt. No. 3). He also filed a consent to the
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jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Dkt. No. 4), and
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therefore, the undersigned may exercise jurisdiction to conduct all proceedings in this matter,
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including the entry of judgment. 1 For the reasons stated below, the Court GRANTS the
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application to proceed in forma pauperis and DISMISSES the Complaint WITH LEAVE TO
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AMEND.
BACKGROUND2
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Although not stated in the Complaint, it appears Plaintiff is a resident of a property owned
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and/or operated by Defendant San Francisco Department of Public Health. In February 2015,
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Plaintiff received a letter from the Director of the Department of Public Health “citing all kinds of
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Defendant has not been served, and therefore is not a party to the suit pursuant to 28 U.S.C. §
636(c). See Levy v. United States, 2012 WL 1439047, at *1 (N.D. Cal. Apr. 25, 2012);Third
World Media, LLC v. Does 1-1568, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011).
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The following factual allegations are taken from Plaintiff’s Complaint. Dkt. No. 1.
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filthy things had been found in my room by an Inspector of Department of Public Health and that I
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should clean up my my [sic] room forthwith or face eviction.” Plaintiff also alleges he appeared
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for an Abatement Hearing at 300 Grove Street where testimony was given by an inspector that his
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“room had feces on the floor, cobwebs on the ceinling [sic] and other noxious conditions [sic]
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were present.” He alleges he was not given the opportunity to cross-examine the Inspector or see
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any evidence that was presented. He further alleges that none of these conditions were present in
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his room, “therefore, the man’s testimony was perjured throughout.”
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Plaintiff captions his Complaint as “Perjury and Slander.” On the Civil Cover Sheet, he
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states the nature of his suit is “Personal Injury” for “Assault, Libel & Slander.” He requests the
Court order Defendant to cease and desist any further action “until a person representing me shall
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United States District Court
Northern District of California
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have the opportunity to testify on my behalf at trial that I was the victim of a Kangroo [sic] Court
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in which an Inspector of the Department [of Public] Health had perjured himself.”
APPLICATION TO PROCEED IN FORMA PAUPERIS
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Pursuant to 28 U.S.C. § 1915, a district court may authorize the commencement of a civil
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action in forma pauperis if it is satisfied that the would-be plaintiff cannot pay the filing fees
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necessary to pursue the action. 28 U.S.C. § 1915(a)(1). Here, Plaintiff submitted the required
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documentation, and it is evident from the application that the listed assets and income are
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insufficient to enable Plaintiff to pay the filing fees. Accordingly, the Court GRANTS the
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Application to Proceed In Forma Pauperis.
SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)
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A.
Legal Standard
Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any
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person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory
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and sua sponte review and dismissal by the Court if it is frivolous, malicious, fails to state a claim
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upon which relief may be granted, or seeks monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001);
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Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates
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that the court reviewing an in forma pauperis complaint make and rule on its own motion to
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dismiss before directing that the complaint be served by the United States Marshal pursuant to
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Federal Rule of Civil Procedure (“Rule”) 4(c)(2). Lopez, 203 F.3d at 1127; see also Barren v.
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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that the language of § 1915(e) (2)(B)(ii)
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parallels the language of Rule 12(b)(6)). As the United States Supreme Court has explained, “[the
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in forma pauperis statute] is designed largely to discourage the filing of, and waste of judicial and
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private resources upon, baseless lawsuits that paying litigants generally do not initiate because of
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the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
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“Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. §
1915(d) and failure to state a claim under Rule 12(b)(6) are distinct concepts. A complaint is
“frivolous” when it lacks an arguable basis either in law or in fact. Id. at 325 (definition of
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United States District Court
Northern District of California
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“frivolous . . . embraces not only the arguable legal conclusion, but also the fanciful factual
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allegation”). When determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. §
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1915(e)(2)(B)(i), the Court has “‘the unusual power to pierce the veil of the complaint’s factual
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allegations,’” meaning that the Court “is not bound, as it usually is when making a determination
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based solely on the pleadings, to accept without question the truth of the plaintiff’s allegations.”
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Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Nietzke, 490 U.S. at 327). Further, the
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Ninth Circuit has expressly held that frivolous litigation “is not limited to cases in which a legal
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claim is entirely without merit . . . . [A] person with a measured legitimate claim may cross the
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line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.”
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Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007).
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The Court may also dismiss a complaint sua sponte under Rule 12(b)(6). Sparling v.
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Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). Under Rule 12(b)(6), a district court
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must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2)
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requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to
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relief. “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 570 (2007). The complaint need not contain detailed factual allegations, but the plaintiff
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must “provide the ‘grounds’ of his ‘entitle[ment]’ to relief,” which “requires more than labels and
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conclusions,” and merely “a formulaic recitation of the elements of a cause of action” is
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insufficient. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555.
In ruling on a motion to dismiss, courts may consider only “the complaint, materials
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incorporated into the complaint by reference, and matters of which the court may take judicial
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notice.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). The
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factual allegations pled in the complaint must be taken as true and reasonable inferences drawn
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from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
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337-38 (9th Cir. 1996). However, the Court cannot assume that “the [plaintiff] can prove facts
which [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of
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United States District Court
Northern District of California
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Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that
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are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v.
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Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted).
When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held
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that a district court should grant leave to amend even if no request to amend the pleading was
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made, unless it determines that the pleading could not possibly be cured by the allegation of other
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facts.” Lopez, 203 F.3d at 1130. Pro se pleadings are liberally construed. Haines v. Kerner, 404
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U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
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Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff
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proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.
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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
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B.
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Application to the Case at Bar
At first glance, it is not clear that Plaintiff’s Complaint is properly before this Court. As to
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Plaintiff’s claim for “perjury,” it must be dismissed because there is no private right of action for
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such a claim. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (criminal statutes
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“provide no basis for civil liability”); see also Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th
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Cir. 1999) (criminal statutes do not generally provide a private cause of action nor basis for civil
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liability). As to Plaintiff’s remaining claim for slander, the Federal district courts are courts of
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limited jurisdiction; “[t]hey possess only that power authorized by Constitution and statute, which
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is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
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375, 377 (1994) (internal citation omitted). Accordingly, “[i]t is to be presumed that a cause lies
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outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
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asserting jurisdiction.” Id.
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There are two bases for federal subject matter jurisdiction: (1) federal question jurisdiction
under 28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. Pursuant to the
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federal question jurisdiction statute, district courts have original jurisdiction over all civil actions
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arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. For
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diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff must be diverse from each
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United States District Court
Northern District of California
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defendant, and the amount in controversy must exceed $75,000.
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Diversity jurisdiction does not exist here because Plaintiff and Defendant both reside in
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California. As to federal question jurisdiction, Plaintiff alleges only a tort-based claim for slander,
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which does not fall within the limited jurisdiction of federal courts. Franklin v. Oregon, 662 F.2d
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1337, 1344 (9th Cir. 1981) (no subject matter jurisdiction over claim of slander by police officer
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because no violation of federal right). The Court may adjudicate state tort claims only through
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supplemental jurisdiction, which is discretionary, and should only be used to promote judicial
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economy or convenience. 28 U.S.C. § 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
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726 (1966). Accordingly, as Plaintiff does not allege a federal cause of action the Court is unable
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to exercise supplemental jurisdiction over his state law claim.
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Although Plaintiff does not currently allege a federal cause of action, the Court is mindful
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that pro se pleadings must be liberally construed. Haines, 404 U.S. at 520-21. Plaintiff alleges
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that he appeared for an abatement hearing, but was not given the opportunity to cross-examine the
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inspector or see any evidence that was presented. From this allegation, it appears Plaintiff may be
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attempting to state a claim under 42 U.S.C. § 1983 for violation of his due process rights. The
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Due Process Clause of the Fourteenth Amendment prohibits states from depriving “any person of
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life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This
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provision imposes “procedural limitations on a State’s power to take away protected entitlements.”
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Dist. Att’y’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 67 (2009). Procedural due
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process requires that the government’s deprivation of life, liberty, or property, even if consistent
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with substantive due process, “be implemented in a fair manner.” United States v. Salerno, 481
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U.S. 739, 746 (1987) (analyzing the Due Process Clause of the Fifth Amendment) (internal
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quotation marks and citation omitted).
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If Plaintiff intends to state a claim under 42 U.S.C. § 1983, he must allege two essential
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elements: (1) that a right secured by the Constitution or laws of the United States was violated,
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and (2) that the alleged violation was committed by a person acting under the color of state law.
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West v. Atkins, 487 U.S. 42, 48 (1988).
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Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show
United States District Court
Northern District of California
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that the defendant proximately caused the deprivation of a federally protected right. Leer v.
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Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th
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Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he
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does an affirmative act, participates in another’s affirmative act or omits to perform an act which
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he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844
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F.2d at 633.
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Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official
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policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658,
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690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional
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acts of its employees under the theory of respondeat superior, see Bd. of Cty. Comm’rs. of Bryan
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Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability
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under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff
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possessed a constitutional right of which he or she was deprived; (2) that the municipality had a
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policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights;
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and (4) that the policy is the moving force behind the constitutional violation. Plumeau v. Sch.
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Dist. # 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
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CONCLUSION
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Based on the analysis above, the Court finds dismissal appropriate. However, given
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Plaintiff’s pro se status and because it is not clear that the deficiencies of the Complaint could not
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be cured by amendment, the Court shall grant Plaintiff leave to amend. Accordingly, the Court
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GRANTS the Application to Proceed In Forma Pauperis and DISMISSES the Complaint WITH
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LEAVE TO AMEND.
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If Plaintiff files an amended complaint, it must comply with the guidelines set forth in Rule
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8(a). This rule requires that a complaint for relief include (1) a short and plain statement of the
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grounds for the court’s jurisdiction; (2) a short and plain statement of the claim showing that the
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pleader is entitled to relief; and (3) a demand for the relief sought. A pleading may not simply
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allege a wrong has been committed and demand relief; it must state the elements of the claim
plainly and succinctly. Plaintiff must allege with at least some degree of particularity the facts in
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United States District Court
Northern District of California
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which the defendant(s) engaged to support the claim. Jones v. Cmty. Redev. Agency, 733 F.2d
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646, 649 (9th Cir. 1984).
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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. This is because, as a general rule, an amended
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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
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Once Plaintiff files an amended complaint, the original pleading no longer serves any function in
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the case. Therefore, in an amended complaint, as in an original complaint, each claim and the
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involvement of each defendant must be sufficiently alleged.
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In preparing the amended complaint, Plaintiff may wish to seek assistance from the Legal
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Help Center, a free service of the Volunteer Legal Services Program, by calling 415-782-8982, or
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by signing up for an appointment on the15th Floor of the Federal Courthouse in San Francisco,
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450 Golden Gate Avenue, San Francisco, California. At the Legal Help Center, you will be able
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to speak with an attorney who may be able to provide basic legal help but not representation.
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More information is available at http://cand.uscourts.gov/helpcentersf. The Court also
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recommends that Plaintiff obtain a copy of the Court’s Handbook for Litigants Without a Lawyer,
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which is available free of charge in the Clerk’s Office, or online at
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http://cand.uscourts.gov/prosehandbk. This handbook provides an explanation of the required
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components of a complaint.
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Consistent with the instructions in this Order, Plaintiff shall file any amended complaint by
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August 13, 2015. Failure to file an amended complaint by this deadline shall result in the
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dismissal of this case with prejudice. The Clerk is directed to close the file in this case if an
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amended complaint is not filed by August 13.
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IT IS SO ORDERED.
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Dated: July 10, 2015
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge
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United States District Court
Northern District of California
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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VANCE S. ELLIOT,
Case No. 15-cv-03127-MEJ
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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THE SAN FRANCISCO DEPARTMENT
OF PUBLIC HEALTH,
Defendant.
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United States District Court
Northern District of California
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on July 10, 2015, 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
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.
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Vance S. Elliot
640 Eddy Street, Room 214
San Francisco, CA 94109
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Dated: July 10, 2015
Richard W. Wieking
Clerk, United States District Court
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________________________
Chris Nathan, Deputy Clerk to the
Honorable MARIA-ELENA JAMES
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