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McKelry v. Butts

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

December 2, 2019

CLARENCE C. McKELRY, Plaintiff,
v.
JAMES T. BUTTS, et al., Defendants.

          ORDER OF DISMISSAL

          MICHAEL W. FITZGERALD UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 27, 2019, Plaintiff Clarence C. McKelry (“Plaintiff”), proceeding pro se and seeking leave to proceed in forma pauperis (Dkt. 3, “IFP Request”), filed a civil rights complaint under 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”) against Inglewood Mayor James T. Butts. (“Mayor Butts”) in his individual and official capacity. Dkt. 1 (“Complaint”) at 1-2. Following an order identifying apparent deficiencies on the face of the Complaint (Dkt. 5), Plaintiff filed a First Amended Complaint against Mayor Butts, Angela Garcia, Steven Jaen, Jordan Rodgers, and Neal Cochran. Dkt. 6 (“FAC”). On October 18, 2019, the assigned magistrate judge, following a screening of the FAC under 28 U.S.C. § 1915(e)(2), found that the FAC was subject to dismissal for failing to state a claim upon which relief may be granted and directed Plaintiff to, within 30 days: (1) file a second amended complaint; (2) file a notice of election to stand on the FAC; or (3) voluntarily dismiss the action. Plaintiff did not timely comply with any of the three options or seek additional time in which to do so.

         As set forth below, the Court finds the FAC fails to state a claim upon which relief may be granted, dismisses the FAC and denies Plaintiff's IFP Request pursuant to 28 U.S.C. § 1915(e)(2).

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS IN THE FAC

         Plaintiff alleges a violation of “U.S.C. 240” with his supporting facts, set forth, in full, below:

With the Mayor and the City of Inglewood, I tried to resolve harassment civilly. After going through the run-around, I found this was my last alternative. I was falsely accused of crimes I've never committed by Angela Garcia. This Action got me arrested where Angela Garcia was able to gain access to property where the incidence occurred. I went to trial the case was dismissed at trial. My vehicle was towed from the premises on three different occasions illegally. My property was stolen. As a result of being jailed falsely, I lost my job. Inglewood City Hall toyed with me as a result. There's a sign at my location defaming my character. I consistently tried to resolve the matter with the Mayor and the City which commits him to this conspiracy - and allowing the sign to stay posted defaming my character by denying me access to property I'm entitled to occupy.

FAC at 5 (CM/ECF pagination). Plaintiff, who sues Mayor Butts in his official capacity and the other defendants in their respective individual capacities, seeks damages of $1, 000, 000. Id. at 3, 6. Plaintiff asserts that the defendants, other than Mayor Butts, were acting under color of law as follows: Angela Garcia “false Complaint, perjury”; Steven Jaen “Kidnapped me. (illegal)”; Jordan Rodgers “Kidnapper 2”; Neal Cochran “Gave the approval to kidnap me.” Id. at 3-4. Plaintiff attaches various superior court records, photographs, and towing-related records, the significance of which is not always apparent. Id. at 7-16.

         III. STANDARD OF REVIEW

         Under 28 U.S.C. § 1915(e)(2), the Court must dismiss a complaint if it fails to state a claim on which relief may be granted. A complaint may be dismissed 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) (as amended). In determining whether the complaint states a claim, its factual allegations must be taken as true and construed in the light most favorable to the plaintiff. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Courts construe the allegations of pro se complaints liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended). But “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         When screening a complaint, the Court applies the same standard as it would when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Rule 12(b)(6), in turn, is read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8”). Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Though Rule 8 does not require detailed factual allegations, at a minimum, a complaint must allege enough specific facts to provide both “fair notice” of the particular claim being asserted and “the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted); see also Iqbal, 556 U.S. at 678 (Rule 8 pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).

         If the Court finds that a complaint fails to state a claim, it has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the defects in the complaint could be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”). However, if, after careful consideration, it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is no need to prolong the litigation by permitting further amendment” where the “basic flaw” in the pleading cannot be cured by amendment).

         IV. DISCUSSION

         The FAC does not reference any constitutional provision. Instead, Plaintiff cites “U.S.C. 240.” FAC at 5. The Court interprets the FAC to refer to 18 U.S.C. § 242, a criminal provision which, among other things, imposes criminal penalties for one who, under color of law, willfully deprives a person of a right, privilege, or immunity secured by the Constitution or the laws of the United States. As Plaintiff files ...


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