Coleman v. County of San Mateo et al

Filing 6

ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 4/10/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/11/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TERRY RAY COLEMAN,

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Plaintiff,

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vs.

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COUNTY OF SAN MATEO, et al.,
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Defendants.
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No. C 13-0484 LHK (PR)
ORDER OF DISMISSAL

Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint

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pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in forma pauperis is

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granted in a separate order. For the reasons stated below, the Court dismisses the complaint for

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failure to state a claim.

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DISCUSSION
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Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss

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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
Order of Dismissal
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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
Plaintiff names as Defendants the County of San Mateo, the San Mateo County Sheriff’s

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Department, the San Mateo County Coroner’s Office, and Sergeant Linda Gibbons. In his

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statement of claim, Plaintiff writes, “My wife Kimberly Renee Johnson was murdered by her

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nephew Andre Combs Jan. 2005.” [Sic.] As his request for relief, Plaintiff states that he wants

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to be refunded for “what was taking out my wife bank account as well as safe deposit box all our

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assets and for the lost of my wife body.” [Sic.]

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As presented, it is unclear what federal constitutional rights Plaintiff believes that

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Defendants violated. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” “Specific facts are not

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necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and

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the grounds upon which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations

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omitted). Although in order to state a claim, a complaint “does not need detailed factual

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allegations, . . . a plaintiff’s obligation to provide the ‘grounds of his ‘entitle[ment] to relief’

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do. . . . Factual allegations must be enough to raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim for relief that is plausible on

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its face.” Id. at 1974. Plaintiff must state “enough facts to state a claim for relief that is

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plausible on its face.” Twombly, 127 S. Ct. at 1974. To state a claim arising under federal law, it

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must be clear from the face of Plaintiff’s complaint that there is a federal question. See Easton v.

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Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997).

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Further, Plaintiff has failed to link any named Defendant with his claim. Liability may be
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imposed on an individual defendant under 42 U.S.C. § 1983 if a plaintiff can show that a

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defendant proximately caused the deprivation of a federally protected right. See Leer v. Murphy,

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844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a constitutional right within the

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meaning of section 1983 if he does an affirmative act, participates in another’s affirmative act or

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omits to perform an act which he is legally required to do, that causes the deprivation of which

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the plaintiff complains. See id. at 633.

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The Court notes that Plaintiff has previously filed two similar civil rights complaints: (1)

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Coleman v. Ulshoeffer, et al., No. 11-6209 LHK (N.D. Cal. filed Dec. 14, 2011), and (2)

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Coleman v. County of San Mateo, et al., No. 11-5728 LHK (N.D. Cal. filed Nov. 30, 2011). The

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Court takes judicial notice of the pleadings in both cases. In Coleman v. Ulshoeffer, et al.,

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Plaintiff alleged that Andre Combs murdered Plaintiff’s wife, and Erica Ulshoeffer committed

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fraud, theft, and forgery by taking all of Plaintiff’s deceased wife’s property, money, and assets.

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Upon initial review, the Court pointed out that Plaintiff could not sue private actors in a Section

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1983 claim, and dismissed the complaint with leave to amend. Plaintiff did not file an amended

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complaint, and the Court ultimately dismissed the action on May 23, 2012. In Coleman v.

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County of San Mateo, et al., Plaintiff complained that the County and Sergeant Linda Gibbons

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mishandled procedures regarding his deceased wife’s body. Upon initial review, the Court

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pointed out that Plaintiff’s complaint was deficient because it was unclear what federal right

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Plaintiff was asserting, and dismissed the complaint with leave to amend. Plaintiff did not file an

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amended complaint, and the Court ultimately dismissed the action on May 23, 2012. The

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present complaint appears to combine portions of the previous two dismissed complaints,

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without attempting to correct any deficiencies about which this Court already advised Plaintiff.

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District courts must afford pro se prisoner litigants an opportunity to amend to correct

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any deficiency in their complaints. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

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(en banc). However, leave need not be granted where the amendment of the complaint would

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cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in

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futility, or creates undue delay. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir.

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1994); see also Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (recognizing that leave
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to amend is not necessary when plaintiff can provide no set of facts in support of his claim that

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would entitle him to relief) (citations and internal quotation marks omitted). Here, the Court will

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not grant leave to amend because, taking into consideration Plaintiff’s previous complaints, it is

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clear that such leave would be futile.

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CONCLUSION

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Plaintiff’s complaint is DISMISSED with prejudice for failure to state a claim.

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IT IS SO ORDERED.

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DATED: 4/10/13
LUCY H. KOH
United States District Judge

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Order of Dismissal
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