Barbara Eva Brown v. Lindsay

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 BARBARA EVA BROWN, NO. ED CV 24-1303-FWS(E) 12 Plaintiff, ORDER DISMISSING 13 v. SECOND AMENDED COMPLAINT 14 WITH LEAVE TO AMEND OFFICER LINDSAY, ET AL., [15] Defendants. [17] 18 For the reasons discussed below, the Second Amended Complaint is dismissed 19 with leave to amend. See 28 U.S.C. section 1915 (e)(2)(B). [20] 21 BACKGROUND [22] 23 On June 13, 2024, Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. 24 section 1983. Plaintiff’s claims appeared to arise from Plaintiff’s departure from her 25 former residence. On June 26, 2024, the Court granted Plaintiff in forma pauperis 26 status. On July 25, 2024, the Court issued an “Order Dismissing Complaint With Leave 27 to Amend.” 28 /// 1 On August 26, 2024, Plaintiff filed a First Amended Complaint. Therein, Plaintiff 2 named “Sheriff Deputy Lindsay,” “Matthew Aaron Wickstrom” and “County of San 3 Bernardino” (the “County”) as Defendants. Plaintiff appeared to assert claims for: 4 (1) unlawful search and seizure, in alleged violation of the Fourth Amendment; (2) denial 5 of due process and equal protection, in alleged violation of the Fourteenth Amendment; 6 and (3) violations of state tort law. On October 11, 2024, the Court issued an “Order 7 Dismissing First Amended Complaint With Leave to Amend” (“October 11, 2024 Order”), 8 in which the Court ordered: [9] 10 The First Amended Complaint is dismissed without leave to amend 11 as to: 12 (1) all section 1983 claims against Wickstrom, the County and Lindsay in 13 his official capacity (including all Fourteenth Amendment Due Process 14 claims and Equal Protection claims); and (2) all state tort claims against 15 the County and Lindsay. . . . In all other respects, the First Amended 16 Complaint is dismissed with leave to amend. [17] 18 (October 11, 2024 Order, p. 11). [19] 20 On November 13, 2024, Plaintiff filed a Second Amended Complaint (“SAC”), 21 naming Lindsay and the County as Defendants. 1 22 /// 23 /// 24 /// 25 /// [27] 1 Plaintiff does not name Matthew Wickstrom as a Defendant in the SAC. Thus, 28 Matthew Wickstrom is no longer a party to this action. 1 SUMMARY OF PLAINTIFF’S ALLEGATIONS [2] 3 In the SAC, Plaintiff alleges: 2 [4] 5 On or about June 15, 20243 at approximately 9am PST my then 6 landlord, Matthew Wickstrom arrived at my then residence located at 397 7 Wabash Lane in Sugarloaf, CA. Wickstrom was informed that I can not 8 and was unable to vacate my rental unit in which I had resided in since 9 2009, until the house was sold to Wickstrom a few months earlier. [10] 11 Immediately after Wickstrom heard I wasn’t ready to leave the 12 rental unit that he had just bought due to the fact that I had sustained an 13 injury to my spine, he proceeded to call the Big Bear Lake Sheriff’s Dept. 14 As I was half-nude attempting to dress myself, gather my belongings and 15 place my 3 cats in travel carriers trying to vacate because Wickstrom 16 refused money for just 1 more day. [17] 18 Sheriff Deputy Lindsay arrived shortly after the call, and proceeded 19 to kick in my bedroom door after Wickstrom spoke to him. I quickly 20 dressed and tried to grab 3 of my cats to leave the premises as ordered by 21 Officer Lindsay. Neither the officer or landlord had a court order, nor my 22 consent to throw me out of my rental unit, but they did, forcing me to leave 23 behind my 2 beautiful twin Black cats I had for 13 years in California and 24 most of my personal property including my electric wheelchair. [25] 2 The Court quotes verbatim from the SAC, without noting any apparent omissions 26 and without attempting to correct any errors in capitalization, punctuation, spelling or grammar. [27] 3 Although Plaintiff uses the date June 15, 2024, it is clear from the original 28 Complaint and the First Amended Complaint that the subject incident took place on or 1 Neither Wickstrom nor officer Lindsay presented me with court 2 order to remove me from my residence nor did I consent to leave at that 3 moment in time. I had paid rent for 1/2 the month of June 2022 and I 4 offered Wickstrom rent for 1 more day so I could recover from my injury 5 and remove the rest of my belongings. I had already paid for 2 weeks rent 6 in a condo on the Lake. [7] 8 My intention was to move on that day to my condo rental, but was 9 unable to, I had no one to help me. Lindsay had threatened me with 10 arrest and told me I had 5 minutes to gather my belongings & 3 cats. After 11 5 minutes of mayham with Lindsay yelling at me, my 2 cats ran and hid, 1 12 in the wall, Lindsay handcuffed me and forced me outside, where 13 Wickstrom was replacing the locks on the front door. [14] 15 Lindsay did not take me to jail as he threatened. He uncuffed me 16 and told me to leave the premises and not return or I would be arrested for 17 trespassing, and that I could retrieve my other 2 cats whenever Wickstrom 18 returned to the mountain. 5 days later & then 12 days later I was able to 19 get my 2 cats out and some belongings. Wickstrom took everything else 20 to the dump without my consent. A Peace officer is not lawfully 21 performing his duty if he is unlawfully detaining someone & he took an 22 oath of office. [23] 24 (SAC, pp. 3-4). [25] 26 Plaintiff appears to assert the following claims against Defendants: (1) false 27 arrest, in alleged violation of the Fourth Amendment; (2) deprivation of liberty and 28 property without due process, in alleged violation of the Fifth Amendment; (3) cruel and 1 unusual punishment, in alleged violation of the Eighth Amendment; (4) deprivation of the 2 “privileges and protections” of citizenship, in alleged violation of the Fourteenth 3 Amendment; and (5) denial of the right to access the courts, in alleged violation of the 4 First Amendment (id., pp. 5-9). Plaintiff seeks $3900 in compensatory damages and $25 5 million in punitive damages (id., p. 10). [6] 7 DISCUSSION [8] 9 I. The SAC, Like the Previous Complaints, Fails to State a Cognizable 10 Municipal Liability Claim. [11] 12 Previously in this action, the Court twice has advised Plaintiff of the legal 13 standards applicable to civil rights claims against the County: [14] 15 . . . . Plaintiff may not sue a municipal entity such as the County on a 16 theory of respondeat superior, which is not a theory of liability cognizable 17 under 42 U.S.C. section 1983 . See Connick v. Thompson, 563 U.S. 51 , 18 60 (2011); Ashcroft v. Iqbal, 556 U.S. [662, 676 (2009)]; Polk County v. 19 Dodson, 454 U.S. 312, 325 (1981). A municipal entity may be held liable 20 only if the alleged wrongdoing was committed pursuant to a municipal 21 policy, custom or usage. See Board of County Comm’rs of Bryan County, 22 Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York 23 City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). [24] 25 Conclusory allegations do not suffice to plead a municipal liability 26 claim. See Ashcroft v. Iqbal, 556 U.S. at 678; Starr v. Baca, 652 F.3d 27 1202, 1216 (9th Cir. 2011) (en banc), cert. denied, 566 U.S. 982 (2012) 28 (“allegations in a complaint or counterclaim may not simply recite the 1 elements of a cause of action, but must contain sufficient allegations of 2 underlying facts to give fair notice and to enable the opposing party to 3 defend itself effectively”); see also AE ex rel. Hernandez v. County of 4 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (pleading standards set forth in 5 Starr v. Baca govern municipal liability claims). [6] 7 (July 25, 2024 Order, p. 8; October 11, 2024 Order, pp. 6-7).4 The Court also dismissed 8 all claims against the County alleged in the First Amended Complaint without leave to 9 amend (October 11, 2024 Order, p. 11). [10] 11 Despite the Court’s October 11, 2024 Order, Plaintiff again attempts to bring a 12 Fourth Amendment unlawful seizure claim again the County (SAC, p. 5). Plaintiff also 13 attempts to bring four “new” civil rights claims against the County for alleged First, Fifth, 14 Eighth and Fourteenth Amendment violations (SAC, pp. 6-9). These attempts violated 15 the October 11, 2024 Order. Moreover, Plaintiff fails to allege any facts remotely 16 supporting a viable municipal liability claim. As with the original Complaint and the First 17 Amended Complaint, Plaintiff’s allegations in the SAC do not plausibly demonstrate that 18 the alleged constitutional violations were committed pursuant to a County policy, custom 19 or usage. See Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011), cert. 20 denied, 569 U.S. 904 (2013) (affirming dismissal of municipal and supervisor liability 21 claims which “lack[ed] any factual allegations that would separate them from the 22 ‘formulaic recitation of a cause of action’s elements’” deemed insufficient by the United 23 States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see 24 also Ashcroft v. Iqbal, 556 U.S. at 678; Starr v. Baca, 652 F.3d at 1216. Thus, Plaintiff 25 still cannot state a cognizable claim against the County. [26] 4 In previous actions, this Court also advised this Plaintiff of these same legal [27] standards. See Orders filed in Brown v. CA DMV, CV 18-1418-CJC(E), Brown v. County 28 of San Bernardino, CV 15-294-CJC(E) and Brown v. State of California, CV 13-1451 II. The SAC Fails to State a Cognizable Fifth Amendment Claim. [2] 3 Plaintiff alleges that Lindsay deprived Plaintiff of her “liberty and property 4 (residence) without due process of law,” in asserted violation of the Fifth Amendment 5 (SAC, p. 6). However, “[t]he Due Process Clause of the Fifth Amendment . . . [applies] 6 only to actions of the federal government – not to those of state or local governments.” 7 See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (citation omitted); see 8 also Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (“[T]he Fifth Amendment’s 9 due process clause only applies to the federal government.”); Castillo v. McFadden, 399 10 F.3d 993 , 1002 n.5 (9th Cir.), cert. denied, 546 U.S. 818 (2005) (“The Fifth Amendment 11 prohibits the federal government from depriving persons of due process, while the 12 Fourteenth Amendment explicitly prohibits deprivations without due process by the 13 several States . . . .”). Thus, Plaintiff cannot state a Fifth Amendment Due Process 14 claim. [15] 16 III. The SAC Fails to State a Cognizable Eighth Amendment Claim. [17] 18 Plaintiff claims that Lindsay inflicted cruel and unusual punishment on Plaintiff in 19 asserted violation of Eighth Amendment when Lindsay allegedly forced Plaintiff to leave 20 her residence and to suffer severe hardship (SAC, p. 7). However, “the Eighth 21 Amendment only prevents the imposition of cruel and unusual punishment on convicted 22 prisoners.” Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004), cert. denied, 545 23 U.S. 1139 (2005) (citing Bell v. Wolfish, 441 U.S. 520 , 535 n.16 (1979)); see also 24 Vazquez v. County of Kern, 949 F.3d 1153 , 1163-64 (9th Cir. 2020). Because Plaintiff 25 was not a convicted prisoner at the time of the alleged constitutional violation, Plaintiff 26 cannot state a cognizable Eighth Amendment claim. 27 /// 28 /// 1 IV. The SAC Fails to State a Cognizable Fourteenth Amendment Claim. [2] 3 Plaintiff attempts to assert a Fourteenth Amendment claim, stating: “As a citizen 4 of these United States and residing in the State of California in 2022 at the time of the 5 incident, I was entitled to privileges and protections and rights of the State and the 6 country. Lindsay deprived me of all my rights as a citizen, tenant and as a human being” 7 (SAC, p. 8). To the extent that Plaintiff is attempting to reassert a Fourteenth 8 Amendment Due Process claim, the Court already dismissed that claim without leave to 9 amend (see October 11, 2024 Order, pp. 9-10). To the extent that Plaintiff’s claim is 10 based on Lindsay’s allegedly unlawful arrest of Plaintiff, the claim is properly analyzed 11 under the Fourth Amendment, not the Fourteenth Amendment. See Larson v. Neimi, 9 12 F.3d 1397 , 1402 (9th Cir. 1993), superseded on other grounds by rule, as stated in C.B. 13 v. City of Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc), cert. denied, 574 U.S. 14 1159 (2015) (“[I]n actions for the unconstitutional seizure of persons by officials, liability 15 will be determined under the specific standards of the Fourth Amendment rather than 16 under the general due process standards of the Fourteenth Amendment.”); Braddy v. 17 Drug Enforcement Agency, 464 F. Supp. 3d 1159 , 1166 (C.D. Cal. 2020) (denying leave 18 to amend complaint to add Fifth and Fourteenth Amendment substantive due process 19 claims because those constitutional provisions did not provide proper framework for 20 plaintiff's search-and-seizure claims); see also County of Sacramento v. Lewis, 523 U.S. 21 833, 843 (1998) (if a specific constitutional provision covers a plaintiff's constitutional 22 claim, the claim must be analyzed under the standard appropriate to that specific 23 provision, and not under general due process); Albright v. Oliver, 510 U.S. 266 , 273 24 (1994) (“Where a particular Amendment ‘provides an explicit textual source of 25 constitutional protection’ against a particular sort of government behavior, ‘that 26 Amendment, not the more generalized notion of substantive due process, must be the 27 guide for analyzing these claims.’”) (quoting Graham v. Connor, 490 U.S. 386 , 395 28 (1989)). Thus, Plaintiff fails to state a cognizable Fourteenth Amendment claim. 1 V. The SAC Fails to State a Cognizable First Amendment Claim. [2] 3 Plaintiff purports to bring a First Amendment claim against “Deputy Sheriff 4 Lindsay, County of San Bernardino, this Court and this Judge” (SAC, p. 9). Plaintiff 5 alleges: “As a citizen of these United States of America, I have a 1st Amend[ment] right 6 to redress my grievances to my Government (i.e. you)” (id.). Plaintiff further alleges: “I 7 will be harmed by this court if not allowed to [f]ile my case due to my insuffic[iencies], 8 ignorance” (id.). It appears that Plaintiff may be attempting to allege a First Amendment 9 claim for denial of access to the courts. [10] 11 In order to bring a successful claim for denial of access to the courts, a plaintiff 12 must plead facts plausibly demonstrating that the defendants caused the plaintiff to 13 suffer actual injury to a nonfrivolous legal claim. See Lewis v. Casey, 518 U.S. 343 , 34814 53 (1996); Christopher v. Harbury, 536 U.S. 403, 415-17 (2002). An actual injury may 15 include an inability to meet a deadline or file a claim. See Nevada Dep't of Corrections 16 v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), cert. denied, 566 U.S. 911 (2012). 17 Plaintiff does not allege any facts plausibly demonstrating that Plaintiff suffered an actual 18 injury to a nonfrivolous legal claim or that any named Defendant caused such an injury. 19 Although it does not seem likely that Plaintiff can allege facts sufficient to state a 20 cognizable First Amendment claim against any named Defendant, in light of Plaintiff’s 21 pro se status, the Court will afford Plaintiff an opportunity to amend as to this claim. See 22 Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely 23 clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of 24 the complaint's deficiencies and an opportunity to amend prior to dismissal of the 25 action.”). 26 /// 27 /// 28 /// 1 ORDER [2] 3 The Second Amended Complaint is dismissed without leave to amend as to: 4 (1) all claims against the County; and (2) the Fifth, Eighth and Fourteenth Amendment 5 claims. It is absolutely clear that any further amendment of these claims would be futile. [6] 7 In all other respects, the Second Amended Complaint is dismissed with leave to 8 amend. Plaintiff is granted thirty (30) days from the date of this Order within which to file 9 a Third Amended Complaint. Although the Court has not deemed defective all of 10 Plaintiff’s claims against Lindsay, the Court does require that any Third Amended 11 Complaint shall be complete in itself and shall not refer in any manner to the prior 12 pleadings. The Third Amended Complaint must not name the County as a Defendant. 13 The Third Amended Complaint must not allege any claims dismissed without leave to 14 amend in this order or any previous order. Plaintiff may not add defendants or claims 15 without leave of Court. See Fed. R. Civ. P. 21. Failure timely to file a Third Amended 16 Complaint in conformity with this Order may result in the dismissal of the action. See 17 Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909 18 (2003) (court may dismiss action for failure to follow court order); Simon v. Value Behav. 19 Health, Inc., 208 F.3d 1073 , 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), 20 cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft 21 Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (en banc) (affirming 22 dismissal without leave to amend where plaintiff failed to correct complaint’s deficiencies, 23 court had afforded plaintiff opportunities to do so, and court had given plaintiff notice of 24 the substantive problems with his claims); Plumeau v. Sch. Dist. No. 40, County of 25 Yamhill, 130 F.3d 26 /// 27 /// 28 /// 1 || 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment 2 || would be futile). [4] 5 IT IS SO ORDERED. [6] 7 DATED: December 12, 2024 8 Lo bl /-— FRED W.SLAUGHTER 10 UNITED STATES DISTRICT JUDGE 11 || PRESENTED this 11th day of 12 || December, 2024 by: [13] 14 [S/ CHARLES F. EICK 15 || UNITED STATES MAGISTRATE JUDGE [28] 1]