Elliot v. The San Francisco Department of Public Health

Filing 5

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 VANCE S. ELLIOT, 7 Case No. 15-cv-03127-MEJ Plaintiff, 8 ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS v. 9 THE SAN FRANCISCO DEPARTMENT OF PUBLIC HEALTH, 10 Defendant. 11 United States District Court Northern District of California ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 12 INTRODUCTION 13 On July 6, 2015, Plaintiff Vance S. Elliot (“Plaintiff”) filed a Complaint (Dkt. No. 1) and 14 15 an Application to Proceed In Forma Pauperis (Dkt. No. 3). He also filed a consent to the 16 jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Dkt. No. 4), and 17 therefore, the undersigned may exercise jurisdiction to conduct all proceedings in this matter, 18 including the entry of judgment. 1 For the reasons stated below, the Court GRANTS the 19 application to proceed in forma pauperis and DISMISSES the Complaint WITH LEAVE TO 20 AMEND. BACKGROUND2 21 Although not stated in the Complaint, it appears Plaintiff is a resident of a property owned 22 23 and/or operated by Defendant San Francisco Department of Public Health. In February 2015, 24 Plaintiff received a letter from the Director of the Department of Public Health “citing all kinds of 25 26 27 28 1 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). 2 The following factual allegations are taken from Plaintiff’s Complaint. Dkt. No. 1. 1 filthy things had been found in my room by an Inspector of Department of Public Health and that I 2 should clean up my my [sic] room forthwith or face eviction.” Plaintiff also alleges he appeared 3 for an Abatement Hearing at 300 Grove Street where testimony was given by an inspector that his 4 “room had feces on the floor, cobwebs on the ceinling [sic] and other noxious conditions [sic] 5 were present.” He alleges he was not given the opportunity to cross-examine the Inspector or see 6 any evidence that was presented. He further alleges that none of these conditions were present in 7 his room, “therefore, the man’s testimony was perjured throughout.” 8 Plaintiff captions his Complaint as “Perjury and Slander.” On the Civil Cover Sheet, he 9 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 11 United States District Court Northern District of California 10 have the opportunity to testify on my behalf at trial that I was the victim of a Kangroo [sic] Court 12 in which an Inspector of the Department [of Public] Health had perjured himself.” APPLICATION TO PROCEED IN FORMA PAUPERIS 13 Pursuant to 28 U.S.C. § 1915, a district court may authorize the commencement of a civil 14 15 action in forma pauperis if it is satisfied that the would-be plaintiff cannot pay the filing fees 16 necessary to pursue the action. 28 U.S.C. § 1915(a)(1). Here, Plaintiff submitted the required 17 documentation, and it is evident from the application that the listed assets and income are 18 insufficient to enable Plaintiff to pay the filing fees. Accordingly, the Court GRANTS the 19 Application to Proceed In Forma Pauperis. SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2) 20 21 22 A. Legal Standard Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any 23 person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory 24 and sua sponte review and dismissal by the Court if it is frivolous, malicious, fails to state a claim 25 upon which relief may be granted, or seeks monetary relief from a defendant who is immune from 26 such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); 27 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates 28 that the court reviewing an in forma pauperis complaint make and rule on its own motion to 2 1 dismiss before directing that the complaint be served by the United States Marshal pursuant to 2 Federal Rule of Civil Procedure (“Rule”) 4(c)(2). Lopez, 203 F.3d at 1127; see also Barren v. 3 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that the language of § 1915(e) (2)(B)(ii) 4 parallels the language of Rule 12(b)(6)). As the United States Supreme Court has explained, “[the 5 in forma pauperis statute] is designed largely to discourage the filing of, and waste of judicial and 6 private resources upon, baseless lawsuits that paying litigants generally do not initiate because of 7 the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). 8 9 “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 11 United States District Court Northern District of California 10 “frivolous . . . embraces not only the arguable legal conclusion, but also the fanciful factual 12 allegation”). When determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 13 1915(e)(2)(B)(i), the Court has “‘the unusual power to pierce the veil of the complaint’s factual 14 allegations,’” meaning that the Court “is not bound, as it usually is when making a determination 15 based solely on the pleadings, to accept without question the truth of the plaintiff’s allegations.” 16 Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Nietzke, 490 U.S. at 327). Further, the 17 Ninth Circuit has expressly held that frivolous litigation “is not limited to cases in which a legal 18 claim is entirely without merit . . . . [A] person with a measured legitimate claim may cross the 19 line into frivolous litigation by asserting facts that are grossly exaggerated or totally false.” 20 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1060-61 (9th Cir. 2007). 21 The Court may also dismiss a complaint sua sponte under Rule 12(b)(6). Sparling v. 22 Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). Under Rule 12(b)(6), a district court 23 must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) 24 requires that a complaint include a “short and plain statement” showing the plaintiff is entitled to 25 relief. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 27 662, 678 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 28 544, 570 (2007). The complaint need not contain detailed factual allegations, but the plaintiff 3 1 must “provide the ‘grounds’ of his ‘entitle[ment]’ to relief,” which “requires more than labels and 2 conclusions,” and merely “a formulaic recitation of the elements of a cause of action” is 3 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 4 5 incorporated into the complaint by reference, and matters of which the court may take judicial 6 notice.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). The 7 factual allegations pled in the complaint must be taken as true and reasonable inferences drawn 8 from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 9 337-38 (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 11 United States District Court Northern District of California 10 Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that 12 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. 13 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 14 15 that a district court should grant leave to amend even if no request to amend the pleading was 16 made, unless it determines that the pleading could not possibly be cured by the allegation of other 17 facts.” Lopez, 203 F.3d at 1130. Pro se pleadings are liberally construed. Haines v. Kerner, 404 18 U.S. 519, 520-21 (1972); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 19 Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff 20 proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. 21 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 22 B. 23 Application to the Case at Bar At first glance, it is not clear that Plaintiff’s Complaint is properly before this Court. As to 24 Plaintiff’s claim for “perjury,” it must be dismissed because there is no private right of action for 25 such a claim. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (criminal statutes 26 “provide no basis for civil liability”); see also Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th 27 Cir. 1999) (criminal statutes do not generally provide a private cause of action nor basis for civil 28 liability). As to Plaintiff’s remaining claim for slander, the Federal district courts are courts of 4 1 limited jurisdiction; “[t]hey possess only that power authorized by Constitution and statute, which 2 is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 3 375, 377 (1994) (internal citation omitted). Accordingly, “[i]t is to be presumed that a cause lies 4 outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party 5 asserting jurisdiction.” Id. 6 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 8 federal question jurisdiction statute, district courts have original jurisdiction over all civil actions 9 arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. For 10 diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff must be diverse from each 11 United States District Court Northern District of California 7 defendant, and the amount in controversy must exceed $75,000. 12 Diversity jurisdiction does not exist here because Plaintiff and Defendant both reside in 13 California. As to federal question jurisdiction, Plaintiff alleges only a tort-based claim for slander, 14 which does not fall within the limited jurisdiction of federal courts. Franklin v. Oregon, 662 F.2d 15 1337, 1344 (9th Cir. 1981) (no subject matter jurisdiction over claim of slander by police officer 16 because no violation of federal right). The Court may adjudicate state tort claims only through 17 supplemental jurisdiction, which is discretionary, and should only be used to promote judicial 18 economy or convenience. 28 U.S.C. § 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 19 726 (1966). Accordingly, as Plaintiff does not allege a federal cause of action the Court is unable 20 to exercise supplemental jurisdiction over his state law claim. 21 Although Plaintiff does not currently allege a federal cause of action, the Court is mindful 22 that pro se pleadings must be liberally construed. Haines, 404 U.S. at 520-21. Plaintiff alleges 23 that he appeared for an abatement hearing, but was not given the opportunity to cross-examine the 24 inspector or see any evidence that was presented. From this allegation, it appears Plaintiff may be 25 attempting to state a claim under 42 U.S.C. § 1983 for violation of his due process rights. The 26 Due Process Clause of the Fourteenth Amendment prohibits states from depriving “any person of 27 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This 28 provision imposes “procedural limitations on a State’s power to take away protected entitlements.” 5 1 Dist. Att’y’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 67 (2009). Procedural due 2 process requires that the government’s deprivation of life, liberty, or property, even if consistent 3 with substantive due process, “be implemented in a fair manner.” United States v. Salerno, 481 4 U.S. 739, 746 (1987) (analyzing the Due Process Clause of the Fifth Amendment) (internal 5 quotation marks and citation omitted). 6 If Plaintiff intends to state a claim under 42 U.S.C. § 1983, he must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was violated, 8 and (2) that the alleged violation was committed by a person acting under the color of state law. 9 West v. Atkins, 487 U.S. 42, 48 (1988). 10 Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show United States District Court Northern District of California 11 that the defendant proximately caused the deprivation of a federally protected right. Leer v. 12 Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th 13 Cir. 1981). A person deprives another of a constitutional right within the meaning of § 1983 if he 14 does an affirmative act, participates in another’s affirmative act or omits to perform an act which 15 he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 16 F.2d at 633. 17 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official 18 policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 19 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional 20 acts of its employees under the theory of respondeat superior, see Bd. of Cty. Comm’rs. of Bryan 21 Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal liability 22 under § 1983 for a violation of constitutional rights, a plaintiff must show: (1) that the plaintiff 23 possessed a constitutional right of which he or she was deprived; (2) that the municipality had a 24 policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights; 25 and (4) that the policy is the moving force behind the constitutional violation. Plumeau v. Sch. 26 Dist. # 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). 27 CONCLUSION 28 Based on the analysis above, the Court finds dismissal appropriate. However, given 6 1 Plaintiff’s pro se status and because it is not clear that the deficiencies of the Complaint could not 2 be cured by amendment, the Court shall grant Plaintiff leave to amend. Accordingly, the Court 3 GRANTS the Application to Proceed In Forma Pauperis and DISMISSES the Complaint WITH 4 LEAVE TO AMEND. 5 If Plaintiff files an amended complaint, it must comply with the guidelines set forth in Rule 6 8(a). This rule requires that a complaint for relief include (1) a short and plain statement of the 7 grounds for the court’s jurisdiction; (2) a short and plain statement of the claim showing that the 8 pleader is entitled to relief; and (3) a demand for the relief sought. A pleading may not simply 9 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 11 United States District Court Northern District of California 10 which the defendant(s) engaged to support the claim. Jones v. Cmty. Redev. Agency, 733 F.2d 12 646, 649 (9th Cir. 1984). 13 In addition, Plaintiff is informed that the Court cannot refer to a prior pleading in order to 14 make Plaintiff’s amended complaint complete. This is because, as a general rule, an amended 15 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 16 Once Plaintiff files an amended complaint, the original pleading no longer serves any function in 17 the case. Therefore, in an amended complaint, as in an original complaint, each claim and the 18 involvement of each defendant must be sufficiently alleged. 19 In preparing the amended complaint, Plaintiff may wish to seek assistance from the Legal 20 Help Center, a free service of the Volunteer Legal Services Program, by calling 415-782-8982, or 21 by signing up for an appointment on the15th Floor of the Federal Courthouse in San Francisco, 22 450 Golden Gate Avenue, San Francisco, California. At the Legal Help Center, you will be able 23 to speak with an attorney who may be able to provide basic legal help but not representation. 24 More information is available at http://cand.uscourts.gov/helpcentersf. The Court also 25 recommends that Plaintiff obtain a copy of the Court’s Handbook for Litigants Without a Lawyer, 26 which is available free of charge in the Clerk’s Office, or online at 27 http://cand.uscourts.gov/prosehandbk. This handbook provides an explanation of the required 28 components of a complaint. 7 1 Consistent with the instructions in this Order, Plaintiff shall file any amended complaint by 2 August 13, 2015. Failure to file an amended complaint by this deadline shall result in the 3 dismissal of this case with prejudice. The Clerk is directed to close the file in this case if an 4 amended complaint is not filed by August 13. 5 IT IS SO ORDERED. 6 7 8 9 Dated: July 10, 2015 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 VANCE S. ELLIOT, Case No. 15-cv-03127-MEJ Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 8 THE SAN FRANCISCO DEPARTMENT OF PUBLIC HEALTH, Defendant. 9 10 United States District Court Northern District of California 11 12 13 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. 14 15 16 Vance S. Elliot 640 Eddy Street, Room 214 San Francisco, CA 94109 17 18 19 20 21 Dated: July 10, 2015 Richard W. Wieking Clerk, United States District Court 22 23 24 ________________________ Chris Nathan, Deputy Clerk to the Honorable MARIA-ELENA JAMES 25 26 27 28 9

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