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King v. Trotten

United States District Court, C.D. California, Western Division

February 21, 2017

DENNIS KING, Plaintiff,
v.
GREGORY TROTTEN, et al., Defendants.

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          PAUL L ABRAMS UNITED STATES MAGISTRATE JUDGE.

         On December 16, 2016, plaintiff filed a pro se civil rights action herein pursuant to 42 U.S.C. § 1983. Plaintiff subsequently was granted leave to proceed without prepayment of the full filing fee. Plaintiff appears to name as defendants “District Attorney/Sheriff” Gregory Trotten (ECF No. 1 at 1), Simi Valley Police “Traffic Officer” Kevin Wilmontt (id. at 2), two officers with the Simi Valley Police Department (id. at 3), and District Attorney Elizabeth Main (id. at 4). Plaintiff seeks damages.

         In accordance with the mandate of the Prison Litigation Reform Act of 1995 (“PLRA”), the Court has screened the Complaint prior to ordering service for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2).

         The Court's screening of the pleading under the foregoing statute is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in determining whether a complaint should be dismissed under 28 U.S.C. § 1915(e)(2), courts apply the standard of Fed.R.Civ.P. 12(b)(6)). Further, with respect to a plaintiff's pleading burden, the Supreme Court has held that: “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. … Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' 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.” (internal citation omitted)); Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (“To survive a motion to dismiss for failure to state a claim, the plaintiff must allege ‘enough facts to state a claim to relief that is plausible on its face.'” (citing Twombly, 550 U.S. at 570)). Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading liberally and must afford plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Finally, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the “tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

         After careful review of the Complaint under the foregoing standards, the Court finds that plaintiff's allegations appear insufficient to state a claim against any named defendant. Accordingly, the Complaint is dismissed with leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding that a pro se litigant must be given leave to amend his complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment).

         If plaintiff desires to pursue this action, he is ORDERED to file a First Amended Complaint no later than March 21, 2017, remedying the deficiencies discussed below. Further, plaintiff is admonished that if he fails to timely file a First Amended Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the Court will recommend that the action be dismissed with prejudice.[1]

         DISCUSSION

         Plaintiff's Complaint fails to comply with Federal Rule of Civil Procedure 8(a) and 8(d). Fed.R.Civ.P. 8(a) states:

A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(Emphasis added). Rule 8(d)(1) provides: “Each allegation must be simple, concise, and direct. No technical form is required.” (Emphasis added). Although the Court must construe a pro se plaintiff's pleadings liberally, a plaintiff nonetheless must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what plaintiff's claims are and the grounds upon which they rest. See, e.g., Brazil v. United States Department of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants fair notice of the claims against them). If a plaintiff fails to clearly and concisely set forth allegations sufficient to provide defendants with notice of which defendant is being sued on which theory and what relief is being sought against them, the complaint fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). Moreover, failure to comply with Rule 8 constitutes an independent basis for dismissal of a complaint that applies even if the claims in a pleading are not found to be wholly without merit. See McHenry, 84 F.3d at 1179; Nevijel, 651 F.2d at 673.

         First, the first page of the Complaint names only Trotten as a defendant, and the pages of the Complaint are not numbered consecutively. Plaintiff is admonished that, irrespective of his pro se status, he must comply with the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the Central District of California. See, e.g., Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”); L.R. 1-3. Pursuant to Fed.R.Civ.P. 10, the caption of a pleading must include all defendants identified elsewhere in the body of the pleading.

         Further, the Complaint fails to set forth any factual allegations supporting plaintiff's claims. Plaintiff alleges in his “Claim 1” that defendant Trotten violated the “right to bear arms” and the “right to a fair trial” (ECF No. 1 at 1), but plaintiff does not allege that Totten took any action, participated in another's action, or failed to perform an action that he was required to do. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Karim-Panahi, 839 F.2d at 624. “A person deprives another ‘of a constitutional right, within the meaning of § 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].'” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (emphasis in original).

         Similarly, plaintiff alleges in his “Claim 2” that Officer Wilmontt “performed an unreasonable search and seizure” on July 30, 2016, and that he “tresspass[ed] on my person” (ECF No. 1 at 2), but plaintiff sets forth no factual allegations concerning the circumstances of the search or seizure nor alleges in what manner it was unconstitutional. To the extent plaintiff is purporting to allege that a traffic officer illegally stopped or searched him, pursuant to the Fourth Amendment, an officer may “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” See Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967)). “[A] law enforcement officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). “Reasonable suspicion” is a “less demanding standard than probable cause, ” but it requires that an officer “be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” See Wardlow, 528 U.S. at 123-24 (citing Terry, 392 U.S. at 27, n.2) (internal quotation marks omitted); see also Haynie v. County of L.A., 339 F.3d 1071, 1076 (9th Cir. 2003) (“An officer may conduct a carefully limited search for weapons to dispel a reasonable fear for his safety.”) (internal quotation marks omitted).

         In his “Claim 3, ” plaintiff alleges that Officers Lares and Samples “performed an unreasonable search and seizure” on August 17, 2016, when they “trespassed on [his] property.” (ECF no. 1 at 3). Plaintiff, however, fails to allege that each officer took any affirmative act, participated in another's affirmative act, or omitted to perform an act that he or she was legally required to do that allegedly caused a specific constitutional deprivation. The Court is not compelled to accept as true plaintiff's mere conclusory assertions that a search or seizure was “unreasonable.” Rather, the Supreme Court has made clear that a plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, 135 S.Ct. 346, 347, 190 L.Ed.2d 309 (2014) (per curiam); see also Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (“to be entitled to the presumption ...


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