United States District Court, C.D. California, Western Division
ORDER DISMISSING COMPLAINT WITH LEAVE TO
ABRAMS UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
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
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
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.
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.
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).
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).
“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 ...