McCullom v. Ahorn et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND Signed by Judge Beth Labson Freeman on 7/14/2021. Amended Complaint due by 8/11/2021. (tshS, COURT STAFF) (Filed on 7/14/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN L. MCCULLOM,

United States District Court
Northern District of California

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Plaintiff,

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v.

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Case No. 21-01524 BLF (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

GREGORY J. AHORN, et al.,

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Defendants.

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Plaintiff, a state prisoner currently confined at the Santa Rita Jail in Dublin,

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California, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against

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Sheriff Gregory J. Ahern of Alameda County, Chief Jeremy Young of the Livermore

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Police Department, and Probation Officer Wendy Still. Dkt. Not. 5 at 1.1 Plaintiff’s

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motion for leave to proceed in forma pauperis will be addressed in a separate order.

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///

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Plaintiff filed a two-page handwritten document, labeled “42 U.S.C. 1983,” which the
Clerk of the Court construed as an attempt to file a civil rights complaint. Dkt. No. 1.
Plaintiff was directed to file a complaint on the court’s form, Dkt. No. 3, which he did on
April 7, 2021. Dkt. No. 5. Accordingly, the complaint filed under Docket No. 5 is the
operative complaint in this action. Plaintiff indicates at the top of the complaint that this
action is filed as “join[d]er to Case No. 21-cv-01172-BLF and Case No. 21-cv-01742BLF.” Dkt. No. 5 at 1. The Court will consider whether joinder of these actions is
appropriate if these matters proceed past initial screening.

DISCUSSION

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A.

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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally

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construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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United States District Court
Northern District of California

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims

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As with several of Plaintiff’s prior complaints,2 the handwritten complaint in this

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matter is lengthy, i.e., 144 pages long, and contains allegations that are disorganized and

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incoherent. Dkt. Nos. 5, 5-1, 5-2, 5-3. For example, he begins with alleging that Judge

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Paul Delucchi “enjoys 100% immunity from any 42 U.S.C. 1983 civil action at lawsuit in

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equity but is not immune from criminal prosecution within (his) secretive facilitations of a

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racially motivate[d] hate crimes….” Dkt. No. 5 at 2. Plaintiff claims that county officials

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“illegally joined, bonded, or combined themselves together to willfully and unlawfully…

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threaten and intimidate (me) and others free exercises and enjoyments of mine and others

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constitutionally secured and protected every day (and/or) daily engagements in activities

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within the federalisms of laws under the Unites States constitution.” Id. at 3. Plaintiff

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asserts that he is entitled to damages for pain and suffering associated with the defamation

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See, e.g., McCullom v. Alameda Sheriff’s Dept., Case No. 19-06003 BLF (PR); In re
McCullom, Case No. 21-01172 BLF (PR).
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of his character, and for the solicitation of his “murder for hire on the dark websites.” Id.

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at 4; ibid. at 8. Plaintiff also alludes to errors in the police database, id. at 6, unlawful

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surveillance, id. at 10-11, planting of DNA evidence, id. at 14, defamation and slander, id.

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at 16-17, various gang dynamics, id. at 21-23, and additional allegations against Judge

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Delucchi, id. at 23, 26, 28. The complaint continues for over 100 pages, repeating similar

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allegations against Judge Delucchi, the Livermore Police Department, and Alameda

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County Sheriff’s Department, and then includes additional allegations against the Santa

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Rita Jail. Dkt. No. 5-1. Plaintiff seeks exemplary damages, as well as compensatory and

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punitive damages. Id. at 3.

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There are several problems with this complaint. First, none of allegations, even

United States District Court
Northern District of California

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liberally construed, state sufficient facts linked to specific state actors for the Court to

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discern a cognizable claim under § 1983. Furthermore, Federal Rule of Civil Procedure

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8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” “Specific facts are not necessary; the statement need only ‘“give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’”

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). The complaint is neither

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short nor plainly written to provide fair notice of any claims or the grounds upon which

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they rest. Moreover, where the allegations in a complaint are “argumentative, prolix,

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replete with redundancy and largely irrelevant,” the complaint is properly dismissed for

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failure to comply with Rule 8(a). McHenry v. Renne, 84 F.3d 1172, 1177, 1178-79 (9th

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Cir. 1996). But “verbosity or length is not by itself a basis for dismissing a complaint

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based on Rule 8(a).” Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1131 (9th

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Cir. 2008). A complaint, even if lengthy, is permissible if it is “coherent, well-organized,

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and state[s] legally viable claims.” Id. Here, Plaintiff’s complaint is incoherent,

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disorganized, and fails to state any legally viable claim.

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In addition, none of the allegations are obviously related, and therefore the

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complaint appears to violate Rules 18(a) and 20(a) of the Federal Rules of Civil Procedure.

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“A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as

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independent or alternative claims, as many claims as it has against an opposing party.”

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Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single party are fine, but

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Claim A against Defendant 1 should not be joined with unrelated Claim B against

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Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims

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against different defendants belong in different suits,” not only to prevent the sort of

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“morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that

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prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the

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number of frivolous suits or appeals that any prisoner may file without prepayment of
required fees.” Id. (citing 28 U.S.C. § 1915(g)). Rule 20(a) provides that parties may be

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United States District Court
Northern District of California

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joined as defendants in one action only “if any right to relief is asserted against them

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jointly, severally, or in the alternative with respect to or arising out of the same transaction,

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occurrence, or series of transactions or occurrences; and any question of law or fact

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common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).

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Lastly, the references to various criminal proceedings indicate that the related claim

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for damages may possibly be barred by Heck v. Humphrey, 512 U.S. 477, 486-487 (1994)

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(to recover damages for an allegedly unconstitutional conviction or imprisonment or for

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other harm caused by actions who unlawfulness would render a conviction or sentence

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invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been

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reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

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authorized to make such determination, or called into question by a federal court's issuance

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of a writ of habeas corpus). A claim for damages bearing that relationship to a conviction

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or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487.

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Plaintiff shall be granted one opportunity to file an amended complaint to cure the

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deficiencies discussed above. Plaintiff must comply with Rules 8(a)(2), 18(a) and 20(a) of

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the Federal Rules of Civil Procedure. “Factual allegations must be enough to raise a right

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to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-

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56 (2007) (citations omitted). To state a claim that is plausible on its face, a plaintiff must

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allege facts that “allow[] the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Liability

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may be imposed on an individual defendant under § 1983 only if Plaintiff can show that

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

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v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a

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constitutional right within the meaning of section 1983 if he does an affirmative act,

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participates in another’s affirmative act or omits to perform an act which he is legally

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required to do, that causes the deprivation of which the plaintiff complaints. See Leer, 844

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F.2d at 633.

United States District Court
Northern District of California

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

The complaint is DISMISSED with leave to amend. Within twenty-eight

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(28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct

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the deficiencies described above. The amended complaint must include the caption and

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civil case number used in this order, Case No. 21-01524 BLF (PR), and the words

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“AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff

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must answer all the questions on the form in order for the action to proceed. The amended

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complaint supersedes the original, the latter being treated thereafter as non-existent.

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Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently,

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claims not included in an amended complaint are no longer claims and defendants not

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named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963

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F.2d 1258, 1262 (9th Cir.1992).

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2.

Failure to respond in accordance with this order in the time provided

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will result in the dismissal with prejudice of this action for failure to state a claim,

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without further notice to Plaintiff.

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3.

The Clerk shall include two copies of the court’s complaint with a copy of

this order to Plaintiff.
IT IS SO ORDERED.
Dated: ___July 14, 2021___________

________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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Order of Dism. With Leave to Amend
PRO-SE\BLF\CR.21\01524McCullom_dwlta

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