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McGee v. State

August 24, 2010

JEFFERSON A. MCGEE, PLAINTIFF,
v.
THE STATE OF CALIFORNIA, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

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 dismissed plaintiff's complaint with leave to amend, pursuant to § 1915A(b). The court noted that, although plaintiff generally challenged "the State of California's Policy of Discriminating Against African Americans in Law Enforcement Programs and Activities,"*fn1 the court was unable to ascertain the precise conduct plaintiff challenged, against which defendant(s), and on what legal bases. Dckt. No. 3 at 4-5. Therefore, the complaint was dismissed for failure to state a claim, as well as failure to comply with the requirements of Federal Rule of Civil Procedure ("Rule") 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). Id. The court granted plaintiff leave to amend to cure these defects.

Thereafter, plaintiff filed a one hundred forty-three (143) page amended complaint and a one hundred fifty-five (155) page second amended complaint, both of which suffered from many of the same defects as plaintiff's previously filed complaint. After reviewing both complaints, the court dismissed them, again with leave to amend. Dckt. No. 9. The court noted that plaintiff disregarded the court's admonishments regarding Rule 8 and regarding other aspects of his pleading and claims, and found that the amended complaint and the second amended complaint each failed to comply with Rule 8(a)(2), in that they did not contain a short and plain statement of plaintiff's claims showing entitlement to relief. Id. at 4. The order added that "[p]laintiff'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," and stated that "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." Id. Nonetheless, the court noted that plaintiff appeared to be alleging that he was treated disparately based on his race; set forth what plaintiff's complaint must allege in order to state a claim for a violation of the equal protection clause and to state a claim under 42 U.S.C. § 1983 or 42 U.S.C. § 1985; reminded plaintiff that prosecutors are immune from liability under § 1983 for their conduct insofar as it is "intimately associated" with the judicial phase of the criminal process; reminded plaintiff that his claims for damages against the state, its agencies or its officers for actions performed in their official capacities are barred under the Eleventh Amendment, unless the state waives its immunity; reminded plaintiff that he could not assert claims on behalf of other individuals or a class; and then provided plaintiff with leave to file a third amended complaint that complies with Rule 8 and that remedies all of the deficiencies addressed in the order. Id. at 5-7.

Also, on March 17, 2010, plaintiff moved for a temporary restraining order preventing the State of California and her attorneys, officers, municipalities, agencies, employees, and all persons in active concert with them:

(1) from continuing to use intimidation by threats of violence and threats of arrest to prevent plaintiff and his family from returning to his residence located at 5617 Bonniemae Way Sacramento, California 95824 and his personal property; and (2) from further prosecuting the unlawful detainer action in the matter of McGee v. McGee et al., No. 09UD12194.

Dckt. No. 8 at 1. However, because plaintiff had not demonstrated any likelihood of success on the merits and because his motion was procedurally deficient, his motion for a temporary restraining order was denied. Dckt. Nos. 9, 17.

On June 29, 2010, plaintiff filed a two hundred and six (206) page third amended complaint, naming more than one hundred and fifty defendants and asserting thirty-seven causes of action. Dckt. No. 12. Then, on July 12, 2010, plaintiff filed another motion for a temporary restraining order and a motion for a preliminary injunction, which plaintiff noticed for hearing on August 25, 2010. Dckt. No. 13. For the reasons stated herein, plaintiff's third amended complaint will be dismissed pursuant to 28 U.S.C. § 1915A(b) with leave to file one further amended complaint, and the undersigned will recommend that plaintiff's motion for a temporary restraining order and a preliminary injunction be denied.

DISMISSAL OF THIRD AMENDED COMPLAINT

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). Although pro se pleadings are liberally construed, 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 the reasonable inference 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. Moreover, the court's liberal interpretation of a pro se complaint may not supply essential elements of a claim that are not plead, Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992), and "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A complaint that fails to comply with Rule 8 may be dismissed with prejudice pursuant to Rule 41(b). Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981). Further, "[t]he propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit." McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) ("Rule 8(e), requiring each averment of a pleading to be 'simple, concise, and direct,' applies to good claims as well as bad . . . .").

Once again, plaintiff's third amended complaint fails to comply with Rule 8 and with the court's previous orders. Although plaintiff's third amended complaint generally sets forth each separate claim for relief and the defendants alleged therein, most of the claims do not contain factual allegations specific to those claims for relief. Rather, almost all of plaintiff's factual allegations are included within plaintiff's first claim for relief and the defendants plaintiff seeks to name on that claim are not identified. Moreover, as noted above, the third amended complaint is 206 pages and asserts 37 claims against more than 150 defendants.

More importantly, plaintiff's third amended complaint fails to correct many of the substantive deficiencies delineated in the court's previous orders. Specifically, plaintiff (1) improperly continues to include factual allegations regarding injuries to other non-party individuals, see McShane v. United States, 366 F.2d 286 (9th Cir. 1966) (a layperson cannot ordinarily represent the interests of a class); (2) improperly continues to assert claims against immune defendants, see Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005) ("[p]rosecutors are absolutely immune from liability under § 1983 for their conduct insofar as it is 'intimately associated' with the judicial phase of the criminal process.") and Kentucky v. Graham, 473 U.S. 159, 169 (1985); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (plaintiff's claims for damages against the state, its agencies or its officers for actions performed in their official capacities are barred under the Eleventh Amendment, unless the state waives its immunity); (3) improperly continues to assert claims against private defendants under § 1983, see West v. Atkins, 487 U.S. 42, 48 (1988) (in order to state a claim under § 1983, a plaintiff must allege the violation of a federal constitutional or statutory right, and that the violation was committed by a person acting under the color of state law); and (4) continues to assert claims against municipalities (and their departments) under § 1983 without showing that an official policy or custom caused the alleged constitutional torts, 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); Ortez v. Wash. County, 88 F.3d 804, 811 (9th Cir. 1996) ("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."). The complaint also improperly includes numerous factual allegations based on conduct that occurred well in advance of the applicable statutes of limitations, including factual allegations dating back to 1979, and also improperly includes allegations that are barred under the doctrine of res judicata, at least as to those defendants who were parties or privities of the defendants named in plaintiff's earlier actions before this court. See No. CIV. S-05-2632 GEB/EFB, Dckt. No. 86; see also Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 323-24 (1971) (a federal claim may be barred by res judicata where an earlier lawsuit involved the same claim, the same parties or their privities, and resulted in a final judgment on the merits).*fn2

Additionally, although almost all of plaintiff's claims allege racial discrimination (and a vast conspiracy to racially discriminate), pursuant to 42 U.S.C. § 1981 (claims 1, 7, 9, 14, 18, 20, 24, 26, and 30), § 1982 (claims 2, 8, 9, 13, 14, 19, 20, 25, 26, and 31), § 1983 (claims 3, 14, and 32), § 1985 (claims 4, 10, 15, 21, 27, and 33), § 1986 (claims 5, 11, 16, 22, 28, and 34), and § 2000a (claims 6, 9, 12, 13, 14, 17, 20, 23, 26, 29, and 35), and California Civil Code sections 51 and 52 (claims 36 and 37), 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 under section 1983 for violation of the equal protection clause, which requires that plaintiff show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class. For the same reasons, plaintiff has not stated a claim under section 1981, which prohibits racial discrimination by private parties and state actors in the making and enforcement of contracts;*fn3 nor has he stated a claim under section 1982, which prohibits racial discrimination with regard to property rights; and he has not stated a claim under section 2000a, which prohibits discrimination or segregation in places of public accommodation. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Buckley v. Valeo, 424 U.S. 1, 93 (1976); Pittman v. Or., E'ment Dep't, 509 F.3d 1065, 1067 (9th Cir. 2007); City of Memphis v. Greene, 451 U.S. 100, 122 (1981).

Nor has plaintiff stated a claim under section 1985. Section 1985 proscribes conspiracies to interfere with civil rights. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990). To state a claim for conspiracy under section 1985(3), a plaintiff must allege (1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Further, a plaintiff must allege that some racial, or class-based, invidiously discriminatory animus lay behind the conspirators' action. Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002) (citing Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68, (1993) (internal citations and quotations omitted)). Here, plaintiff fails to allege a conspiracy between the defendants, let alone one that was aimed at interfering with his constitutional rights. Butler, 281 F.3d at 1028. Again, plaintiff has failed to state any basis for his claims of racial animus and has provided this court only with a list of instances that he believes show that he has suffered discrimination at the hands of the state. Plaintiff, however, has not stated anything to indicate that the actions of defendants were propelled by racial animus. He ...


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