United States District Court, C.D. California, Western Division
CLARENCE C. McKELRY, Plaintiff,
JAMES T. BUTTS, et al., Defendants.
ORDER OF DISMISSAL
MICHAEL W. FITZGERALD UNITED STATES MAGISTRATE JUDGE
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.
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.
SUMMARY OF PLAINTIFF'S ALLEGATIONS IN THE FAC
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
STANDARD OF REVIEW
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).
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,
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).
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 ...