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Jefferson A. Mcgee v. the State of California

December 7, 2010

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



GEB EFB PS

ORDER AND FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding in propria persona and in forma pauperis, was referred to the undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). The in forma pauperis statute, 28 U.S.C. § 1915(e)(2), directs the court to dismiss the case at any time if it determines that 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. Currently before the court are plaintiff's fourth amended complaint, Dckt. No. 19, and plaintiff's motion for a temporary restraining order and preliminary injunction, Dckt. No. 22. The court has reviewed that complaint as required by section 1915(e)(2), and for the reasons stated herein, the undersigned recommends that plaintiff's fourth amended complaint be dismissed without leave to amend. The court further recommends that the motion for a temporary restraining order and preliminary injunction be denied, and that the Clerk be directed to close this case.

I. PROCEDURAL HISTORY

A. Plaintiff's Complaints in This Action

1. Plaintiff's Original Complaint

Plaintiff's initial complaint in this action, Dckt. No. 1, challenges "the State of California's Policy of Discriminating Against African Americans in Law Enforcement Programs and Activities," and alleges generally that plaintiff and others had been denied adequate law enforcement protections, unequal to that provided white citizens, Compl. ¶ 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. ¶ 12.

On October 19, 2009, plaintiff's complaint was dismissed with leave to amend, pursuant to § 1915A(b), for failure to state a claim, as well as failure to comply with the requirements of Federal Rule of Civil Procedure 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. The court noted that it was unable to ascertain the precise conduct plaintiff challenged, against which defendant(s), and on what legal bases. Id. at 4-5.

2. Plaintiff's First Amended and Second Amended Complaints Thereafter, plaintiff filed a 143 page amended complaint and a 155 page second amended complaint, both of which suffered from many of the same defects as plaintiff's previously-filed complaint. Dckt. Nos. 4, 5. Plaintiff also filed a request that the court permit the California attorney general to intervene and to certify the case of general public importance, Dckt. No. 6, and a motion for a temporary restraining order, Dckt. Nos. 7, 8.

After reviewing both complaints, the court dismissed them, again with leave to amend. Dckt. No. 9. The court noted that plaintiff had disregarded the court's specific admonishments regarding the requirements of Rules 8 and 12 for a pleading to state a claim, 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 and described for plaintiff what sort of detail his 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. The court 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. The order also denied plaintiff's request that the Court permit the Attorney General to intervene and recommended denial of plaintiff's motions for a temporary restraining order.*fn1 Id. at 8-10.

3. Plaintiff's Third Amended Complaint On June 29, 2010, plaintiff filed a 206 page third amended complaint. That complaint named more than 150 defendants and purported to assert 37 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. Dckt. No. 13.

On August 24, 2010, the undersigned issued an order and findings and recommendations dismissing plaintiff's third amended pursuant to 28 U.S.C. § 1915A(b) with leave to file one further amended complaint, and recommending that plaintiff's motion for a temporary restraining order and a preliminary injunction be denied.*fn2 Dckt. No. 18.

The August 24 order noted that, once again, plaintiff's third amended complaint failed to comply with Rule 8 and with the court's previous orders. The court noted that most of the claims did not contain factual allegations specific to plaintiff's claims for relief; rather, almost all of plaintiff's factual allegations were included within plaintiff's first claim for relief and the defendants whom plaintiff intended to name on that claim were not identified. Id. at 5. Additionally, the court found that plaintiff's third amended complaint failed 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, (2) improperly continues to assert claims against immune defendants, (3) improperly continued to assert claims against private defendants under § 1983 with no facts showing that they acted under color of state law, and (4) continued to assert claims against municipalities (and their departments) under § 1983 without showing that an official policy or custom caused the alleged constitutional torts. Id. at 5-6.

The third amended complaint also improperly included 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 included 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. Id. at 6. Further, although almost all of plaintiff's claims alleged 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 did plaintiff sufficiently demonstrate that any of the named defendants acted with specific racial animus or discriminatory intent. Plaintiff merely concluded that each of the actions taken by defendants were fueled by racial animus. Therefore, the court noted that plaintiff had not stated a claim under § 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. Id. at 6-7.

For the same reasons, the court noted that plaintiff had not stated a claim under § 1981, which prohibits racial discrimination by private parties and state actors in the making and enforcement of contracts; had not stated a claim under § 1982, which prohibits racial discrimination with regard to property rights; and had not stated a claim under § 2000a, which prohibits discrimination or segregation in places of public accommodation. Id. at 7. The court further found that because plaintiff failed to allege a conspiracy between the defendants, let alone one that was aimed at interfering with his ...


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