United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO EITHER FILE A FIRST
AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED
ONLY ON COGNIZABLE CLAIMS (ECF NO. 1)
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE..
Debra Berry proceeds pro se and in forma pauperis in this
civil rights action brought pursuant to 42 U.S.C. §
1983. Her complaint is before the Court for screening.
to 28 U.S.C. § 1915(e)(2), the Court must conduct an
initial review of the complaint to determine if it states a
cognizable claim. The Court must dismiss a complaint or
portion thereof if it determines that the action has raised
claims that are legally "frivolous or malicious, "
"fails to state a claim upon which relief may be
granted, " or seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C.
1915(e)(2)(B). "Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that . .
. the action or appeal . . . fails to state a claim on which
relief may be granted." 28 U.S.C. §
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. Facial
plausibility demands more than the mere possibility that a
defendant committed misconduct and, while factual allegations
are accepted as true, legal conclusions are not. Id.
times relevant to the complaint, Plaintiff was a student or
citizen using the Modesto Junior College Library, where the
acts giving rise to her complaint arose.
names the following Defendants: (1) Yosemite Community
College District; (2) Modesto Junior College; (3) Bryan
Justin Marks, individually and in his official capacity as an
Administrator and Associate Dean of Campus Life and Student
Learning; (4) Jackie Jordan, individually and in her official
capacity as Administrator Librarian; (5) Ellen Bambrosia,
individually and in her official capacity as Administrator
Librarian; (6) Iris Carol, individually and in her official
capacity as Administrator Librarian, and (7) Granden
McCarthy, individually and in her official capacity as an
Administrator and College Campus Security Guard.
states her intent to bring this action as a class action on
behalf of herself and others similarly situated. As explained
below, Plaintiff may not bring allegations on behalf of
others in this pro se action. Accordingly, only those
allegations that relate to Plaintiff herself are discussed
here. Those allegations may be summarized essentially as
Junior College (“MJC”) is a state run university
under the authority of the Yosemite Community College
District. (“YCCD”) Both entities receive federal
September 22, 2015, from 12:00 p.m. to 12:45 p.m., Defendants
Jordan, Bambrosia, and Carol took photographs of Plaintiff
and other students of color without their consent and sent
them to coaches at MJC. The coaches confronted the students
about their disruptive behavior.
October 5, 2015, a white student worker told Plaintiff she
had been sent by Defendants Jordan, Bambrosia, and Carol to
watch the African American students. From 12:30 p.m. to 12:35
p.m., Defendants Jordan, Bambrosia, and Carol approached
Plaintiff and a group of students of color who were studying
quietly. Defendants accused the students of making noise and
stated that only five people could sit at the table.
Defendants ignored a nearby table of five white students that
were talking in the same quiet tone as Plaintiff and her
Defendant McCarthy issued Plaintiff a verbal citation for
being too loud and for having more than five students at the
table. The same citation was not issued to the table of white
students. McCarthy demanded Plaintiff's “W”
number and identification and issued Plaintiff and others
false charges of misconduct. These were intended to deter
Plaintiff and others from pursuing their education.
about October 6, 2015, Defendant Carol and a non-party
employee named Susan moved chairs from the general area where
African American students studied. Only two tables and three
chairs were left in the area. That same day, Defendant
Bambrosia approached a group of African American students
sitting quietly in a general studying area and told them that
only four students could be at the table. She ignored five
white students sitting at an adjacent table. Plaintiff
observed this conduct but apparently was not one of the
students initially approached. Bambrosia then asked Plaintiff
whether she had anything to say. Later that day, Plaintiff
observed Bambrosia harassing other African American students.
Also that day, Defendant Carol intentionally assaulted
Plaintiff by bumping into her chair hard without saying
“excuse me” and while looking at Plaintiff with
point in October, several students, including Plaintiff,
lodged complaints regarding this behavior. It is unclear
whether Plaintiff was one such student. Defendant Marks
responded to the complaints by sending out “false
notices” in an attempt to intimidate Plaintiff and
others. The notices stated that the students had been
reported for Disruptive Behavior and were required to
schedule a meeting with Marks. Absent such a meeting, Marks
would review the report and consider disciplinary action
without the students' input.
November 5, 2015, Plaintiff and others complained about a
poster of Modesto Library Rules that had been placed on the
wall. Plaintiff claims the rules were intended to cover up
discrimination toward Plaintiff and other African American
later received a letter from Marks stating that she had been
reported for Disruptive Behavior and had failed to schedule a
meeting with Marks as requested. The letter stated that Marks
had determined that Plaintiff violated the Yosemite Community
College District Standards of Conduct and was therefore
suspended from use of the MJC Library Learning Center on the
MJC East Campus for approximately six weeks. Following the
suspension, Plaintiff would be placed on disciplinary
probation for one year. The notice outlined steps for
Plaintiff to take to resume use of the MJC Library Learning
Center following her suspension.
claims racial discrimination in violation of her right to
equal protection under the Fourteenth Amendment. The caption
of her complaint also alleges “harassment, sexual
harassment, and oppression in education.” Elsewhere in
the complaint she references the Eighth Amendment. She also
alleges violations of Sexual Harassment Policy 3430.
seeks an injunction prohibiting further discrimination,
unspecified compensatory and punitive damages, and
unspecified declaratory relief.
Putative Class Action
proceeding pro se, cannot prosecute the instant action as a
class action. See C.E. Pope Equity Trust v. United
States, 818 F.2d 696, 697 (9th Cir.1987) (holding that a
pro se litigant may not appear as an attorney for others);
Welch v. Terhune, 11 F.App'x 747, 747 (9th Cir.
2001) (same); White v. Geren, 310 F.App'x 159,
160 (9th Cir. 2009) (pro se plaintiff is not an adequate
class representative under Fed.R.Civ.P. 23(a)(4)). The action
will proceed, if at all, solely on behalf of Plaintiff Berry.
Section 1983 “provides a cause of action for the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws of the United States.”
Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is
not itself a source of substantive rights, but merely
provides a method ...