Wynn v. California, State of et al

Filing 13

ORDER: Sua Sponte Dismissing Second Amended Complaint Without Prejudice; and Denying as Moot 12 Motion-Request for Appointment of Counsel. The Court finds Plaintiff's equal protection claim, as currently pled, necessarily fails, and Dismisses the Second Amended Complaint. It is hereby ordered that Plaintiff shall have 30 days from the date of this Order to file a Third Amended Complaint curing all deficiencies. Signed by Judge Michael M. Anello on 8/16/2013. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE LIVELL WYNN,
Plaintiff,

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CASE NO. 13CV1479-MMA (DHB)
ORDER:
SUA SPONTE DISMISSING
SECOND AMENDED
COMPLAINT WITHOUT
PREJUDICE;

vs.

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DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
AS MOOT

STATE OF CALIFORNIA;
DEPARTMENT OF JUSTICE;
OFFICE OF THE ATTORNEY
GENERAL KAMALA D. HARRIS,

[Doc. No. 12]

Defendants.

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On July 10, 2013, the Court granted Plaintiff George L. Wynn’s Amended

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Motion for Leave to Proceed In Forma Pauperis (“IFP”). However, upon

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undertaking the further analysis required by 28 U.S.C. § 1915(e)(2)(B), the Court

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sua sponte dismissed Plaintiff’s First Amended Complaint (“FAC”) because it failed

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to comply with federal pleading standards or demonstrate plausible liability. [See

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July 10, 2013 Order, Doc. No. 9.] The Court granted Plaintiff thirty days to file a

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Second Amended Complaint (“SAC”).

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On August 9, 2013, Plaintiff filed a SAC. Aside from an added introductory
paragraph, the SAC is largely identical to the FAC. As such, the Court remains
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13cv1479

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unable to identify with any reasonable degree of certainty the specific nature of

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Plaintiff’s claims. Consequently, defendants have not been given “fair notice of

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what the plaintiff’s claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 554, 555 (2007).

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Plaintiff appears to claim that California Penal Code § 290.5 violates his equal

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protection rights by treating him differently than other sex offenders. Section 290.5

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provides for automatic registration relief upon receipt of a certificate of

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rehabilitation for some registered sex offenders, but not others. However, Plaintiff

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fails to allege that he is similarly situated to those sex offenders who do qualify for

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automatic registration relief. Nor does he allege that the classification scheme as

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applied to him is irrational. See D.M. v. Dep’t of Just., 209 Cal. App. 4th 1439, 1450

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(Cal. Ct. App. 2012) (“[T]o sustain an equal protection challenge to section 290.5, it

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must be shown that the classification scheme is irrational.”).

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Thus, Plaintiff’s equal protection claim, as currently pled, necessarily fails.

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Accordingly, the SAC is sua sponte DISMISSED pursuant to 28 U.S.C. §

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1915(e)(2)(B). The Court GRANTS Plaintiff thirty (30) days from the date of this

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order to file a third amended complaint curing the deficiencies noted above and in

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the Court’s July 10, 2013 Order. The Court cautions Plaintiff that submitting a third

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amended complaint that is largely identical to his previously-filed complaints will

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not be sufficient to cure the deficiencies and will be subject to immediate dismissal.

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Plaintiff’s pending request for appointment of counsel is DENIED as moot.

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IT IS SO ORDERED.

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DATED: August 16, 2013

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Hon. Michael M. Anello
United States District Judge

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13cv1479