United States District Court, N.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE
M. Ryu United States Magistrate Judge
Cynthia Shavers filed a complaint along with an application
to proceed in forma pauperis (“IFP”).
[Docket Nos. 1, 2.] Plaintiff then filed an amended
complaint. [Docket No. 10]. The court granted Plaintiff's
IFP application and dismissed the complaint and the amended
complaint with leave to amend to remedy the deficiencies
noted in the order. [Docket No. 12.] Plaintiff timely filed a
second amended complaint. [Docket No. 15
(“SAC”).] For the following reasons, the court
dismisses the second amended complaint (“SAC”)
with leave to amend.
court is under a continuing duty to dismiss a case filed
without the payment of the filing fee under 28 U.S.C. §
1915(a) whenever it determines that the action “(i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). To make the determination
under 28 U.S.C. § 1915(e)(2)(B), courts assess whether
there is an arguable factual and legal basis for the asserted
wrong, “however inartfully pleaded.” Franklin
v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). A
court may dismiss a complaint where it is based solely on
conclusory statements, naked assertions without any factual
basis, or allegations that are not plausible on their face.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009);
see also Erickson v. Pardus, 551 U.S. 89 (2007) (per
the complaint has been filed by a pro se plaintiff, such as
here, courts must “construe the pleadings liberally . .
. to afford the petitioner the benefit of any doubt.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
“A pro se litigant must be given leave to amend his or
her complaint unless it is absolutely clear that the
deficiencies in the complaint could not be cured by
amendment.” Noll v. Carlson, 809 F.2d 1446,
1448 (9th Cir. 1987) (quotation omitted), superseded on
other grounds by statute, as recognized in Lopez v.
Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc); see
also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
2000) (en banc).
provides slightly different information in the complaint,
amended complaint, and SAC. Construing them together,
Plaintiff alleges that an incident occurred in December 2014
which involved family members and others. She attempted to
intervene, and was subsequently arrested and placed in
custody. She was released on $30, 000 bail, and no charges
were filed. Plaintiff alleges that on March 24, 2015, she was
re-arrested and placed in custody for the “same
charges, ” but did not “receive any
paperwork.” SAC at 5. Plaintiff was released on $80,
000.00 bail. Complaint at 5. There were no criminal charges
filed in connection with Plaintiff's second arrest.
Id. Plaintiff alleges a violation of her Fourth
Amendment rights. Complaint at 2. She seeks $150, 000 in
damages for pain and suffering, lost wages, loss of her job,
depression, the bail posted for both arrests, and punitive
damages. SAC at 6.
court notes that Plaintiff filed an earlier case that seems
to be about the same March 24, 2015 arrest discussed in the
current case. See Shavers v. Seven Unknown Named Officers
of the United States Marshals Office, 4:16-cv-00957-DMR.
In that lawsuit, Plaintiff alleged that she was unlawfully
arrested and detained on March 24, 2015 by seven unnamed U.S.
Marshals. Plaintiff voluntarily dismissed that case.
U.S.C. § 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 for vindicating federal rights
elsewhere conferred. Graham v. Connor, 490 U.S. 386,
393-94 (1989). To state a claim under § 1983, a
plaintiff must allege two elements: 1) that a right secured
by the Constitution or laws of the United States was violated
and 2) that the alleged violation was committed by a person
acting under the color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811
F.2d 1243, 1245 (9th Cir. 1987).
court explained in its earlier order that the only named
defendant is Oakland Police Department Officer Michael Murphy
(“Murphy). The court ruled that Plaintiff had failed to
state a Section 1983 claim because she had not provided any
facts connecting Murphy to the alleged violation of her
constitutional rights. See 2/13/17 Order at 2-3
[Docket No. 12]. The court dismissed the complaint and
amended complaint with leave to amend to correct the
SAC, Plaintiff again names Murphy as the sole defendant. The
SAC still fails to explain what Murphy allegedly did to
violate Plaintiff's constitutional rights. For example,
if Plaintiff believes she was wrongfully arrested by Murphy,
she must specifically say so in her amended pleading. As it
stands, the court has no way to determine how or whether
Murphy was involved in either of the two arrests that are the
subject of Plaintiff's lawsuit.
in her amended complaint, Plaintiff stated that her prior
lawsuit was against the wrong agency, and she later found out
that her claim should be against the Oakland Police
Department. Amended Complaint at 5 [Docket No. 10]. However,
the SAC only names Murphy as a defendant. Does Plaintiff
believe that the Oakland Police Department was involved? If
so, then how?
Plaintiff is pro se and it is not entirely clear that further
amendment would be futile, the court dismisses the SAC with
one final opportunity to amend. The
court instructs Plaintiff that in her third amended
complaint, she must state all facts upon which
Plaintiff bases her claims, and address the deficiencies
noted in this order. Failure to do so will result in the
denial of further leave to amend and dismissal of the entire