Thompson v. County of Sacramento Animal Control et al

Filing 5

ORDER (1) Granting Application to Proceed Without Prepayment of Fees; (2) Dismissing Complaint With Leave to Amend; And (3) Denying Motion For Temporary Restraining Order re 3 ; 4 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/16/11. Amended Complain t to be filed by 7/15/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

SHERRIE S. THOMPSON and
RICHARD MARTINEZ, TRUSTEE,

)
)
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Plaintiffs,
)
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vs.
)
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COUNTY OF SACRAMENTO
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ANIMAL CONTROL; DAVE
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DICKENSON; LIBBY SIMMONS;
)
AND REUBEN HERNANDEZ, in
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their individual and official capacities )
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Defendants.
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_______________________________ )

CIVIL NO. 11-00378 JMS/RLP
ORDER (1) GRANTING
APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF
FEES; (2) DISMISSING
COMPLAINT WITH LEAVE TO
AMEND; AND (3) DENYING
MOTION FOR TEMPORARY
RESTRAINING ORDER

ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES; (2) DISMISSING COMPLAINT WITH LEAVE
TO AMEND; AND (3) DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER
On June 15, 2011, Plaintiffs Sherri S. Thompson and Richard
Martinez (“Plaintiffs”) filed this action. Although not clear, it appears that
Plaintiffs are seeking return of their service animal from Defendants County of
Sacramento Animal Control, Dave Dickenson, Libby Simmons, and Reuben
Hernandez (collectively “Defendants”), and/or an Order preventing Defendants
from euthanizing or allowing the animal to be adopted.
Also on June 15, 2011, Plaintiffs filed an Application to Proceed

Without Prepayment of Fees and Affidavit (“Application”), and a Motion for
Temporary Restraining Order (“Motion for TRO”). Based on the following, the
court (1) GRANTS Plaintiffs’ Application; (2) DISMISSES the Complaint with
leave to amend; and (3) DENIES Plaintiffs’ Motion for TRO without prejudice.
ANALYSIS
A.

Plaintiffs’ Application
Plaintiffs’ Application indicates that they are not currently employed,

are not receiving any sources of income, and have no property. Because Plaintiffs
have made the required showing under 28 U.S.C. § 1915 to proceed in forma
pauperis (i.e., without prepayment of fees), the court GRANTS Plaintiffs’
Application.
B.

Plaintiffs’ Complaint
Based on the following, the court finds that Plaintiffs’ Complaint fails

to state a claim upon which relief can be granted.
1.

Framework
Because Plaintiffs are proceeding pro se, the court liberally construes

their pleadings. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365
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(1982) (per curiam))). The court also recognizes that “[u]nless it is absolutely clear
that no amendment can cure the defect . . . a pro se litigant is entitled to notice of
the complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
The court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to mandatory screening, and order the dismissal of any claims it
finds “frivolous, malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune from such relief.” 28
U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)
(en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the
court to sua sponte dismiss an in forma pauperis complaint that fails to state a
claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”).
The court may dismiss a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) if it fails to “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.
2008). This tenet -- that the court must accept as true all of the allegations
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contained in the complaint -- “is inapplicable to legal conclusions.” Iqbal, 129 S.
Ct. at 1949. Accordingly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 1949
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to
infer “the mere possibility of misconduct” do not show that the pleader is entitled
to relief as required by Rule 8. Id. at 1950.
A complaint must also meet the requirements of Federal Rule of Civil
Procedure 8, mandating that a complaint include a “short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), and that “each allegation must be simple, concise,
and direct.” Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its “true
substance, if any, is well disguised” may be dismissed sua sponte for failure to
satisfy Rule 8. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th
Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir.
1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996)
(“Something labeled a complaint but written . . ., prolix in evidentiary detail, yet
without simplicity, conciseness and clarity as to whom plaintiffs are suing for what
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wrongs, fails to perform the essential functions of a complaint.”).
Put differently, a district court may dismiss a complaint for failure to
comply with Rule 8 where the complaint fails to provide defendants with fair
notice of the wrongs they have allegedly committed. See McHenry, 84 F.3d at
1178-80 (affirming dismissal of complaint where “one cannot determine from the
complaint who is being sued, for what relief, and on what theory, with enough
detail to guide discovery”); cf. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
1097, 1105 n.4 (9th Cir. 2008) (finding dismissal under Rule 8 was in error where
“the complaint provide[d] fair notice of the wrongs allegedly committed by
defendants and [did] not qualify as overly verbose, confusing, or rambling”). Rule
8 requires more than “the-defendant-unlawfully-harmed-me accusation[s]” and “[a]
pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct.
1937, 1949 (2009) (citations and quotations omitted).
2.

Application
The Complaint appears directed to protecting and/or returning to

Plaintiffs a service animal in control and/or possession of Defendants. In support
of this relief, the Complaint mentions 42 U.S.C. § 1983, grand larceny,
unconscionability, unfair trade practices, and 42 U.S.C. § 1988. Completely
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missing from the Complaint, however, are any factual allegations against any
particular Defendant explaining what Defendants did to Plaintiffs that affords
Plaintiffs relief. Indeed, the Complaint is so vague and conclusory that, construing
the allegations in the light most favorable to the pro se Plaintiffs, see Eldridge, 832
F.2d at 1137, the court is unable to discern what Plaintiffs’ claims might be, or
whether any relief is possible under federal law. The Complaint therefore fails to
provide sufficient notice to Defendants as to any alleged wrongdoing, and certainly
fails to provide a “short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2),
with allegations that are “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
See, e.g., Hearns, 530 F.3d at 1131; McHenry, 84 F.3d at 1180.
The court therefore DISMISSES the Complaint for failure to comply
with Rules 8 and 12(b)(6). This dismissal is with leave to amend. Plaintiffs may
file an Amended Complaint that (1) complies with Rule 8’s requirement of
“simple, concise, and direct” allegations, and (2) contains a basis for federal
subject matter jurisdiction.
If Plaintiffs choose to file an Amended Complaint:
(1)

Plaintiffs must clearly state how each Defendant has injured
them. In other words, Plaintiffs should explain, in clear and
concise allegations, what each Defendant did and how those
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specific facts create a plausible claim for relief.
(2)

Plaintiffs must clearly state the relief sought and how there is
basis for a claim in federal court. In other words, Plaintiffs
must explain the basis of this court’s jurisdiction.

(3)

Plaintiffs must include all relevant facts that support their
claim(s) in the Amended Complaint.

Plaintiffs are further notified that an Amended Complaint supersedes
all previously-filed complaints. Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992);
Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990).
After amendment, the court will treat the original Complaint as nonexistent.
Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original
Complaint is waived if it is not raised in the Amended Complaint. King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987).
C.

Plaintiffs’ Motion for TRO
Due to the court’s dismissal of the Complaint for failure to state a

claim, Plaintiffs’ Motion for TRO fails; the court cannot grant injunctive relief
where Plaintiffs have failed to state a cognizable claim.
The court nonetheless explains several additional deficiencies in
Plaintiffs’ Motion for TRO in the event that they file an Amended Complaint and
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again seek injunctive relief.
First, a court may issue a TRO without written or oral notice to the
adverse party only if the party requesting the relief provides an affidavit or verified
complaint providing specific facts that “clearly show that immediate and
irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). In addition, the
movant or his attorney must certify in writing “any efforts made to give notice and
the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1)(B). Plaintiffs
have not complied with either of these requirements. As to the first requirement,
although Plaintiffs submitted a verified Complaint, the Complaint (as described
above) did not provide any specific facts establishing that “immediate and
irreparable injury, loss, or damage will result” to Plaintiffs. As to the second
requirement, Plaintiffs have not certified in writing any efforts made to put
Defendants on notice of the Motion, nor have they offered any reason as to why
notice should not be required.
Second, Plaintiffs’ Motion for TRO fails to establish why Plaintiffs
are entitled to relief. “The standard for issuing a temporary restraining order is
identical to the standard for issuing a preliminary injunction.” Brown Jordan Int’l,
Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); see
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also Burgess v. Forbes, 2009 WL 416843, at *2 (N.D. Cal. Feb. 19, 2009);
Magnuson v. Akhter, 2009 WL 185577, at *1 (D. Ariz. Jan. 27, 2009). In Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, __, 129 S. Ct. 365, 374
(2008), the Supreme Court explained that “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” So long
as all four parts of the Winter test are applied, “a preliminary injunction [may]
issue where the likelihood of success is such that ‘serious questions going to the
merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.’”
Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (quoting
Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)).
Except for its title, Plaintiffs’ Motion for TRO is the same as the
Complaint. Thus, the Motion for TRO fails to explain why Plaintiffs are likely to
succeed on the merits, why they will likely suffer irreparable harm in the absence
of preliminary relief, why the balance of equities tips in their favor, and why an
injunction is in the public interest. Plaintiffs have therefore failed to carry their
burden on their Motion for TRO.
For these reasons, the court DENIES Plaintiffs’ Motion for TRO. The
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dismissal of Plaintiffs’ Motion for TRO is without prejudice -- Plaintiffs may
attempt to remedy the deficiencies outlined above and file a new motion for
temporary restraining order after they have filed an Amended Complaint.
CONCLUSION
Based on the above, the court (1) GRANTS Plaintiffs’ Application;
(2) DISMISSES the Complaint with leave to Amend; and (3) DENIES Plaintiffs’
Motion for TRO without prejudice. Plaintiffs are allowed until July 15, 2011 to
file an Amended Complaint. Otherwise, this action will automatically be
dismissed without prejudice and the matter will be closed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 16, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Thompson et al. v. Cnty. of Sacramento Animal Control et al., Civ. No. 11-00378 JMS/RLP;
Order (1) Granting Application to Proceed Without Prepayment of Fees; (2) Dismissing
Complaint with Leave to Amend; and (3) Denying Motion for Temporary Restraining Order

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