Austin v. United States Government et al

Filing 17

ORDER Sua Sponte Dismissing Without Prejudice Plaintiff's Complaint for Failure to State a Claim; Denying 16 Plaintiff's Motion to Direct Service. The Court grants Plaintiff thirty (30) days from the date this Order is stamped "Filed" to file an amended complaint that addresses the pleading deficiencies noted above. Signed by Judge Gonzalo P. Curiel on 8/25/15.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARY JANE AUSTIN,

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CASE NO. 3:14-cv-2148-GPC-BGS
Plaintiff,

ORDER:
(1) SUA SPONTE DISMISSING
WITHOUT PREJUDICE
PLAINTIFF’S COMPLAINT FOR
FAILURE TO STATE A CLAIM;

v.

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UNITED STATES GOVERNMENT,
STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, CITY OF SAN
DIEGO, and SAN DIEGO
MRTROPLIPAN TRANSIT,

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(2) DENYING PLAINTIFF’S
MOTION TO DIRECT SERVICE

Defendants.

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[ECF No. 16]

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I. INTRODUCTION
On September 10, 2014, Plaintiff Mary Jane Austin (“Plaintiff”), proceeding pro

22 se, commenced this action against defendants United States Government, State of
23 California, County of San Diego, City of San Diego, and San Diego Mrtroplipan
24 Transit. (ECF No. 1) On October 20, 2014, this Court granted Plaintiff leave to proceed
25 in forma pauperis (“IFP”) under 28 U.S.C. § 1915(a) and sua sponte dismissed
26 Plaintiff’s complaint for failure to state a claim. (ECF No. 8.) On November 12, 2014,
27 Plaintiff filed a motion for extension of time to file her amended complaint, (ECF No.
28 10), which the Court granted. (ECF No. 11.) On February 27, 2015, Plaintiff filed her
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1 First Amended Complaint (“FAC”). (ECF No. 13.) Finding that Plaintiff’s FAC fails
2 to state a claim, the Court sua sponte DISMISSES WITHOUT PREJUDICE
3 Plaintiff’s FAC.
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II. FACTUAL ALLEGATIONS
Based on the foregoing, Plaintiff alleges that defendants “the U.S. Government

6 personnel, State of California, County of San Diego, City of San Diego, and The San
7 Diego Metropolitan Transit” conspired to violate her civil rights through “threats,
8 physical harm and falsifying documents.” (ECF No. 13, at 1–2.)1 It appears that
9 Plaintiff is attempted to allege causes of action: (1) violation of 42 U.S.C. § 1985
10 (based on Plaintiff’s citation to Carpenters v. Scott, 463 U.S. 825 (1983)); (2) violation
11 of 42 U.S.C. § 1983; (3) violation of the Civil Rights Act of 1964; and (4) violation of
12 the Americans with Disabilities Act of 1990; and (5) claims under the Federal Tort
13 Claims Act. (Id. at 2–3.)
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Plaintiff alleges that “U.S. Governmental personnel, State of California, Cunty

15 of San Diego, City of San Diego, and The San Diego Metropolitan Transit did carry out
16 this threat against plaintiff” “to violate her Constitution Rights [sic] with threats,
17 physical harm and falsifying documents.” (Id. at 1–2.) Plaintiff further alleges that
18 “[t]he defendant continue [sic] to commit crimes against plaintiff” and that “Plaintiff
19 and her family had a contract placed on their lives, evicted, poison, medical evidence
20 wrote [sic], and medical records given to police.” (Id. at 2.) Plaintiff also alleges that
21 “San Diego State University continues to discriminate and harass plaintiff.” (Id. at 3.)
22 Plaintiff also alleges that the “state hearing judge did conspire to hindering with
23 obstructing, due course of justice in the State [sic].” (Id. at 4.)
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III. LEGAL STANDARD
A complaint filed by any person proceeding IFP pursuant to § 1915(a) is subject

26 to mandatory sua sponte review and dismissal by the Court if it is “frivolous, or
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Pursuant to Plaintiff’s reference to the Fourteenth Amendment and Carpenters
28 v. Scott, 463 U.S. 825 (1983), (see ECF No. 13, at 1–2), the Court construes Plaintiff’s
FAC as a cause of action for violation of 42 U.S.C. § 1985(3).
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1 malicious; fails to state a claim upon which relief may be granted; or seeks monetary
2 relief against a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);
3 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.
4 § 1915(e)(2)(B) are not limited to prisoners.”).
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The requirements under 28 U.S.C. § 1915(e)(2)(B)(ii) are analogous to those

6 under Federal Rule of Civil Procedure 12(b)(6). While a plaintiff need not give
7 “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise
8 a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
9 545 (2007). To state a claim upon which relief may be granted “a complaint must
10 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
11 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
12 550 U.S. at 547). A claim is facially plausible when the factual allegations permit “the
13 court to draw the reasonable inference that the defendant is liable for the misconduct
14 alleged.” Id. In other words, “the non-conclusory ‘factual content,’ and reasonable
15 inferences from that content, must be plausibly suggestive of a claim entitling the
16 plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
17 “Determining whether a complaint states a plausible claim for relief will . . . be a
18 context-specific task that requires the reviewing court to draw on its judicial experience
19 and common sense.” Iqbal, 556 U.S. at 679.
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In reviewing a complaint for whether it fails to state a claim on which relief may

21 be granted, the court must assume the truth of all factual allegations and must construe
22 all inferences from them in the light most favorable to the nonmoving party. Thompson
23 v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d
24 336, 337–38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true
25 merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349
26 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th
27 Cir. 1981).
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III. DISCUSSION

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The Court will address each of the alleged factual bases in turn.

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First, Plaintiff alleges that the U.S. government is liable under the FTCA because

4 the IRS “with healed [sic]” her “earn [sic] check,” did not call her when she applied for
5 a job, and “commit[s] criminal acts on people.” (ECF No. 13, at 4.) However,
6 Plaintiff’s complaint does not allege that she was entitled to a check from the IRS nor
7 does it allege what “criminal acts” the IRS committed. (Id.) Additionally, failure to call
8 a job applicant is not tortious conduct that the U.S. would be subject to liability for
9 under the FTCA. See 28 U.S.C. § 1346(b)(1). Accordingly, the Court finds that the
10 allegations regarding the IRS fail to state a claim upon which relief can be granted.
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Second, Plaintiff alleges that “defendants did Conspire by force of intimidation,

12 threat to deprive the plaintiff of necessary medical equipments need to attend a court
13 of the United States from testifying [sic].” (ECF No. 13, at 4.) Again, Plaintiff’s
14 complaint does not specifically allege who actually deprived Plaintiff of medical
15 equipment nor does it allege that she was somehow entitled to medical equipment from
16 that defendant. Accordingly, the Court finds that the allegations regarding the alleged
17 conspiracy fail to state a claim upon which relief can be granted.
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Third, Plaintiff alleges that she was “injured by an action.” (ECF No. 13, at 4.)

19 Yet Plaintiff fails to adequately allege what this “action” is and also fails to allege how
20 that “action” is a cognizable cause of action under the Civil Rights Act of 1964 or the
21 Americans with Disabilities Act of 1990. Accordingly, the Court finds that the
22 allegations regarding an “action” under the ADA and CRA fail to state a claim upon
23 which relief can be granted.
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Fourth, Plaintiff alleges that an “accident was caused by the city bus her legs

25 began to swell [sic].” (ECF No. 13, at 5.) However, Plaintiff fails to show how this
26 amounts to a violation of 42 U.S.C. § 1983 which requires a deprivation of
27 constitutional rights and Plaintiff does not show how an automobile accident amounts
28 to a constitutional violation. Accordingly, the Court finds that the allegations regarding
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1 the automobile accident fail to state a claim upon which relief can be granted.
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Fifth, Plaintiff alleges that a representative from the United States Department

3 of Justice “allowed government employees to give people money she know who was
4 violating.” (ECF No. 13, at 6.) Here Plaintiff has failed to allege how this alleged
5 transfer of money is a viable cause of action. Accordingly, the Court finds that the
6 allegations regarding the DoJ and HUD fail to state a claim upon which relief can be
7 granted.
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Sixth, Plaintiff alleges that the “State of California has allowed state judges to

9 deny me justice in the medical” and that there is “documentation which would prove
10 people working for the state were lying.” (ECF No. 13, at 6.) She also alleges that the
11 HUD gave the City of San Diego money to build “racial housing” and “not to let people
12 move in new housing in San Diego on Broadway Street who made under $17,00 per
13 year [sic].” (Id.) Again, Plaintiff has failed to allege how these actions represent a
14 viable cause of action. Accordingly, the Court finds that the allegations regarding the
15 State of California and HUD fail to state a claim upon which relief can be granted.
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As all of Plaintiff’s alleged factual bases have failed to state a claim upon which

17 relief can be granted, the Court DISMISSES without prejudice Plaintiff’s FAC, (ECF
18 No. 13). Additionally, as the IFP statute requires a sua sponte screening that Plaintiff’s
19 complaint has not yet passed, it is not yet appropriate to direct service. Accordingly,
20 the Court DENIES without prejudice Plaintiff’s motion to direct service, (ECF No. 16).
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IV. CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s FAC, (ECF No. 13), is sua sponte DISMISSED without
prejudice;

2.

The Court GRANTS Plaintiff thirty (30) days from the date this Order

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is stamped “Filed” to file an amended complaint that addresses the

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pleading deficiencies noted above. Plaintiff’s amended complaint must be

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complete in itself without reference to the superseded pleading in
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accordance with Civil Local Rule 15.1. Defendants not named and all

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claims not re-alleged in the amended complaint will be deemed to have

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been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); and

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3.

Plaintiff’s Motion to Direct Service, (ECF No. 16), is DENIED without
prejudice.

6 DATED: August 25, 2015
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HON. GONZALO P. CURIEL
United States District Judge

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