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Lopez v. Johnson

July 19, 2010


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


(Doc. 18)

Plaintiff is proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. On May 20, 2010, the Court granted Plaintiff's IFP application but dismissed her complaint with leave amend. (Doc. 17). On June 15, 2010, Plaintiff filed a First Amended Complaint ("FAC"). (Doc. 18).

On June 21, 2010, the Court issued an order that found that the FAC stated a claim against defendant Richardson but did not state a claim against defendant Johnson.*fn1 (Doc. 19)

The Court granted Plaintiff 20 days leave to amend. Id. Alternatively, the Court permitted Plaintiff choose to not file an amended pleading if she decided that she could not state a cause of action against Johnson or if she decided not to pursue this defendant. Id. The order advised, "If Plaintiff fails to file a Second Amended Complaint within the time frame set forth below, the Court will presume that she has chosen to proceed on the First Amended Complaint and will recommend dismissal of defendants Johnson and the Kern County Housing Authority without leave to amend." Id. Plaintiff has not filed an amended complaint. As a result, the Court concludes that Plaintiff has chosen to proceed without defendant Johnson in the case. Thus, the Court recommends that defendant Johnson be dismissed from the FAC without leave to amend.

I. Complaint

A. Screening

The Court is required to review a case filed in forma pauperis. 28 U.S.C. §1915A(a); 28 U.S.C. 1915(e). The Court must review the complaint and dismiss the action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984)). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-1128 (9th Cir. 2000) (en banc).

1. Section 1983 complaint

Plaintiff's complaint seeks damages under 42 U.S.C. § 1983. To plead a § 1983 violation, the plaintiff must allege facts from which it may be inferred that (1) plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that right acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F. 2d 1145, 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the defendants' acts or omissions caused the deprivation of the plaintiff's constitutionally protected rights. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Id. There must be an actual causal connection or link between the actions of each defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658, 691-692 (1978)(citing Rizzo v. Goode, 432 U.S. 362, 370-371 (1976)).

B. Analysis

1. Summary of the Allegations

Plaintiff seeks to impose liability on defendants Martha Johnson and Renee Richardson of the Kern County Housing Authority pursuant to 42 U.S.C. § 1983 for violating her procedural due process rights under the Fourteenth Amendment. Specifically, she alleges that she received a letter from "defendants" informing her "that they made a pre-termination decision as to eligibility to her Section 8 housing voucher." (See Doc. 18 at 2). She asserts that the letter stated that these benefits were being terminated because she failed to "accurately report income of all household members as required by regulations." (Id.)

Plaintiff alleges that she requested an informal hearing to challenge the decision to terminate her housing assistance subsidy and contends that the regulations "entitled her to appoint a 'representative' to represent her at the scheduled hearing." (Doc. 18 at 2). She states that prior to the hearing her representative requested that defendants provide "'a verbatim recording of the 45 minute' (Annual Recertification Appointment)" but contends that they nevertheless "failed and refused to provide plaintiff or her representative... the above requested transcripts before the hearing." (Id.) She further contends that, in addition to the transcripts, none of "the information relied upon by the agency" in terminating her Section 8 benefits was given to her until "[a]pproximately ...

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