Flaugher v. San Francisco Housing

Filing 11

ORDER by Magistrate Judge Donna M. Ryu denying 9 Motion for Discovery and dismissing Amended Complaint with leave to amend. Amended Pleadings due by 5/5/2017. (dmrlc2, COURT STAFF) (Filed on 4/17/2017) (Additional attachment(s) added on 4/17/2017: # 1 Certificate/Proof of Service) (dtmS, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DOUGLAS FLAUGHER, Case No. 17-cv-00727-DMR Plaintiff, 7 ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND v. 8 9 SAN FRANCISCO HOUSING, Defendant. 10 United States District Court Northern District of California 11 Plaintiff Douglas Flaugher filed this suit along with an application to proceed in forma 12 pauperis (“IFP”) and a motion to appoint counsel. [Docket Nos. 1, 2, 4]. The court granted 13 Plaintiff’s IFP application, and dismissed the complaint with leave to amend to remedy the 14 deficiencies noted in the order. [Docket No. 6]. The court denied the motion to appoint counsel. 15 [Docket No. 6]. The court instructed Plaintiff to file an amended complaint by March 30, 2017. 16 Docket No. 6]. On March 27, 2017, Plaintiff filed a document entitled, “Motion of Discovery 17 14th Amendment.” [Docket No. 9]. Since Plaintiff did not file any other document by March 30, 18 2017, the court construes Plaintiff’s “Motion of Discovery 14th Amendment” as his amended 19 complaint. So construed, the court dismisses the amended complaint with leave to amend for the 20 21 22 23 24 25 26 27 28 following reasons. I. DISCUSSION A. Plaintiff’s Original Complaint and the Court’s Prior Order In his original complaint, Plaintiff alleged three claims for violations of the Eighth Amendment against Defendants arising out of their denial of his applications for affordable housing. See Compl. at 3-5. The court dismissed the Eighth Amendment claims without leave to amend because Plaintiff’s claims were not based on any acts connected with the criminal process, i.e. arrest, pretrial detention, or incarceration after a conviction. Order at 5-6. As explained in the court’s prior 1 order, Eighth Amendment claims “generally do not survive outside the criminal context.” Kaplan 2 v. Cal. Pub. Emps' Ret. Sys., No. C 98-1246 CRB, 1998 WL 575095, at *7 (N.D. Cal. Sept. 3, 3 1998), aff'd, 221 F.3d 1348 (9th Cir. 2000); see also Ingraham, 430 U.S. at 667–68 (“In the few 4 cases where the Court has had occasion to confront claims that impositions outside the criminal 5 process constituted cruel and unusual punishment, it has had no difficulty finding the Eighth 6 Amendment inapplicable.”); Belton v. Wheat, No. C 95-3311 MMC, 1996 WL 40236, at *5 (N.D. 7 Cal. Jan. 22, 1996), aff'd, 131 F.3d 145 (9th Cir. 1997) (dismissing pro se plaintiff’s Eighth 8 Amendment claim because “he does not allege that the acts he claims constituted ‘cruel and 9 unusual punishment’ occurred in connection with criminal process--arrest, pre-trial detention, or 10 United States District Court Northern District of California 11 incarceration following conviction”). The court construed Plaintiff’s original complaint as alleging a Plaintiff’s 14th 12 Amendment equal protection claim, and dismissed that claim with leave to amend. Order at 6-7. 13 As explained in the court’s prior order, “[t]o state a claim under 42 U.S.C. section 1983 for a 14 violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that 15 the defendants acted with an intent or purpose to discriminate against the plaintiff based upon 16 membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194–95 (9th Cir. 1998). 17 “Intentional discrimination means that a defendant acted at least in part because of a plaintiff's 18 protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (emphasis in original) 19 (citation and internal quotation marks omitted). The court found that Plaintiff failed to state a 20 section 1983 equal protection claim in his original complaint because he did not allege that 21 Defendants were state actors, or allege facts showing that he was a member of a protected class or 22 that Defendants acted with an intent or purpose to discriminate against Plaintiff based on his 23 membership in a protected class. Plaintiff’s “Amended” Complaint 24 B. 25 Plaintiff’s amended complaint asks this court to “recognize” his 8th and 14th Amendment 26 claims because he is uneducated and cannot afford counsel. However, the amended complaint 27 provides no facts to support either claim. 28 2 1 To the extent that Plaintiff seeks reconsideration of the court’s prior order, the court denies 2 the request because Plaintiff does not present any basis for reconsideration. See N.D. Civ. L.R. 7- 3 9(b) (explaining the bases for reconsideration). To the extent that Plaintiff re-alleges 8th and 14th 4 Amendment claims based on the facts in the original complaint, the court dismisses both claims 5 for the same reasons stated in the prior order. See Order at 5-7. In conclusion, the court dismisses Plaintiff’s 14th Amendment claim, but grants a final 6 7 opportunity for Plaintiff to amend his complaint to address the deficiencies noted in this order and 8 the court’s prior order. In his second amended complaint, Plaintiff may not incorporate by 9 reference any allegations in his prior pleadings; instead, Plaintiff must re-allege all facts upon which he bases his 14th Amendment claim. See Minor v. Fedex Office & Print Servs., Inc., 182 F. 11 Supp. 3d 966, 976 (N.D. Cal. 2016) (explaining that “as a general rule, an amended pleading 12 supersedes the original pleading and renders it of no legal effect, unless the amended complaint 13 incorporates by reference portions of the prior pleading”) (citation and internal quotation marks 14 omitted). For the reasons stated in this order and the court’s prior order, Plaintiff’s 8th Amendment 15 16 claims remain dismissed without leave to amend. Plaintiff may not re-allege any 8th Amendment 17 claims in his second amended complaint. 18 19 II. CONCLUSION For the reasons above, the court dismisses the amended complaint with leave to amend to 20 allege a 14th Amendment claim. By no later than May 5, 2017, Plaintiff may file a second 21 amended complaint that addresses the deficiencies noted in this order. 22 S ER H 28 3 R NIA a M. R onn Judge D FO RT 27 ______________________________________ DONNA M. RYU United States Magistrate Judge yu NO 26 DERED O OR IT IS S LI 25 Dated: April 17, 2017 A 24 IT IS SO ORDERED. S DISTRICT TE C TA RT U O 23 UNIT ED United States District Court Northern District of California 10 N F D IS T IC T O R C

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