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McGee v. State

May 20, 2010



This case, in which plaintiff is proceeding in propria persona, was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On October 19, 2009, the undersigned granted plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and dismiss plaintiff's complaint with leave to amend. Dckt. No. 3. That order explained that the determination that a plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

The October 19, 2009 order further stated: The court notes initially that plaintiff is a frequent pro se litigant in this court. A cursory review of the court's dockets indicates that plaintiff has filed over ten complaints. The instant complaint generally challenges "the State of California's Policy of Discriminating Against African Americans in Law Enforcement Programs and Activities." Limiting the challenged programs to those receiving federal and state financial assistance, plaintiff asserts that this court has jurisdiction pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq, and the California Unruh Civil Rights Act, California Civil Code §§ 51 and 52. Plaintiff broadly alleges conduct in violation of these provisions by "the State of California Department of Fair Employment and Housing, the State of California Department of Justice, the State of California Department of Alcoholic Beverage Control, the County of Sacramento, the City of Sacramento, the City of Elk Grove, and City of Citrus Heights, the Elk Grove Unified School District and their law enforcement officers. . . ." Dckt. No. 1, at 2; see also, ¶ 8 (naming the "Elk Grove School District Police Department").

Although plaintiff names only the State of California as defendant on the title page of his complaint, he names several other entities (noted above) and individuals throughout his complaint. For example, plaintiff states that the following individuals "worked in concert to unlawfully seize plaintiff's property and to unlawfully keep plaintiff and his family away from their business and residence by use of intimidation by threats of violence and threats of arrest" -- "James Stinson, Mel Di Salvo, Willie Richardson, John Lawrence Tiner, John Benjamin Timer, John McGuiness. Lou Blanas, Thomas Hogan, Edward Brenner, and John T. White." Compl., at 18. Elsewhere plaintiff appears to name as defendants, inter alia, Arnold Schwarzenegger, Gray Davis, Peter Wilson, Edmund G. Brown Jr., William Lockyer, Daniel Lungren, Jan Scully and Thomas Hogan. Id. at 6-7.

Plaintiff indicates that this action is brought on behalf of himself, "doing business as McGee and Associates, and Valley Hi Sports Bar & Grill." Compl., at ¶ 4. He indicates that it is his intent to pursue a class action, noting that "Albert Glen Thiel, Anthony Lee, Javon Drake, Donald Venerable, Milton Baker, plaintiff, and their families consist of adult and minor citizens of the United States who are predominately African Americans who have been denied their rights secured by Title 42 §§ 1981, 1982 and 2000 and Cal. Civ. Code § 51 and 52 by the racial discriminatory polices of the State of California as set forth in this complaint." Compl., at ¶ 5; see also ¶ 11, adding Tibita Whittin.

In addition, throughout his complaint, plaintiff expands the legal bases upon which he brings this action, including 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, and 2000a, Cal. Gov't Code §§ 11135 et seq., and the Fourteenth Amendment. Plaintiff alleges generally that he and others have been denied adequate law enforcement protections, unequal to that provided white citizens, Compl., at ¶ 11; that government officials and some private citizens have participated in a "vast racially motivated conspiracy to violate plaintiff's and others rights," including conspiring, or aiding or inciting others, to commit against plaintiff and others "attempted murder; attempted kidnap; torture; assault with a deadly weapon; assault; battery; intimidation by threats of violence; extortion; false imprisonment; malicious prosecution; robbery; burglary; breaking and entering into plaintiff's property; perjury; forgery; unlawful sexual conduct; and unlawful search and seizure of plaintiff's property causing plaintiff to lose income." Compl., at ¶ 12.

In short, the court is unable to ascertain the precise conduct plaintiff challenges, against which defendant(s), and on what legal bases. The court will therefore dismiss the complaint for failure to state a claim, as well as failure to comply with the requirements of Fed. R. Civ. P. 8(a) (i.e., that the complaint set forth a short and plain statement of the claim(s), showing entitlement to relief and giving the defendant(s) fair notice of the claim(s) against them).

Dckt. No. 3 at 4-5 (internal footnote omitted).

Despite these admonishments, plaintiff thereafter filed a one hundred forty-three (143) page amended complaint and a one hundred fifty-five (155) page second amended complaint, both of which suffer from many of the same defects as plaintiff's previously lodged complaint. Upon review of both the amended complaint and the second amended complaint, it appears that plaintiff has disregarded the court's admonishments regarding Rule 8 and regarding other aspects of his pleading and claims.

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a complaint to plead "factual content that allows the court to draw reasonable that the defendant is liable for the misconduct alleged. " Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). This plausibility requirement is "not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.


The court finds that plaintiff's amended complaint and second amended complaint fail to comply with Fed. R. Civ. P. 8(a)(2), in that they do not contain a short and plain statement of plaintiff's claims showing entitlement to relief. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must state the elements of the claim sufficient to put defendants fairly on notice of the claims against them. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff's amended complaint and second amended complaint fail to concretely put any of the numerous named defendants on notice of how their specific action(s) resulted in a violation of plaintiff's civil rights.

Additionally, because of the lack of brevity, the court cannot determine whether the amended complaint and second amended complaint are frivolous or whether they can be amended to state a claim. Plaintiff appears to allege that he was treated disparately based on his race. To state a claim for a violation of the equal protection clause, a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Buckley v. Valeo, 424 U.S. 1, 93 (1976). Based on the conclusory allegations, plaintiff alleges that the State of California, its attorneys, officers, municipalities, agencies, employees, and all persons acting in concert with it, are all engaged in a conspiracy, the goal of which is to discriminate against African Americans, Latin Americans, and Asian Americans in California in violation of Title IX of the Civil Rights Act of 1964. Plaintiff, however, merely addresses a litany of what he believes to be actions taken by the State of California in furtherance of a racially discriminatory conspiracy. At no point does plaintiff sufficiently demonstrate that any of the named defendants acted with specific racial animus or discriminatory intent. Plaintiff merely concludes that each of the actions taken by defendants were fueled by racial animus. Therefore, plaintiff has not stated a claim for violation of the equal protection clause.

Additionally, in order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff's claims against private persons are thus improper under § 1983. Further, since there is no respondeat superior liability under § 1983, municipalities (and their departments) may be sued under § 1983 only upon a showing that an official policy or custom caused the constitutional tort. See Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003) (granting summary judgment to city and city police department under Monell). "A local government entity cannot be held liable under § 1983 unless the plaintiff alleges that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized [governmental] policy." Ortez v. Wash. County, 88 F.3d 804, 811 (9th Cir. 1996) (citation and quotations omitted) (alteration in ...

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