(PS) Patterson v. City of Vacaville

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 LISA M. PATTERSON, No. 2:19-cv-0521 JAM DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CITY OF VACAVILLE, et al., 15 Defendants. [16] 17 Plaintiff Lisa Patterson is proceeding in this action pro se. This matter was referred to the 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636 (b)(1). Pending 19 before the undersigned are defendants’ motions to dismiss the third amended complaint and 20 plaintiff’s motions to strike and for further leave to amend. (ECF Nos. 45, 50, 51, 54, 57.) 21 For the reasons stated below, the undersigned recommends that defendants’ motions be 22 granted, plaintiff’s motions be denied, and that the third amended complaint be dismissed without 23 further leave to amend. 24 BACKGROUND 25 Plaintiff, proceeding pro se, commenced this action on October 25, 2018, by filing a 26 complaint in the Sacramento County Superior Court. (ECF No. 1 at 5.1) Defendant City of [27] 1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 Vacaville removed the matter to this court pursuant to federal question jurisdiction on March 25, 2 2019. (ECF No. 1.) Plaintiff is proceeding on a third amended complaint filed on January 23, 3 2020. (ECF No. 42.) 4 Therein, plaintiff alleges generally that this “is a Civil rights, Police negligence, breach of 5 contract, slavery, corruption, contempt of court, gangstalking and malice” action “resulting in the 6 breaking of [plaintiff’s] constitutional, human and civil rights.” (Third Am. Compl. (ECF No. 42) 7 at 5.) More specifically, plaintiff alleges that on June 7, 2018, plaintiff called the Vacaville 8 Police Department (“VPD”) to report a violation of a restraining order. (Id. at 10.) On July 7, 9 2018, plaintiff called the VPD “to report a threat that was made to her by her neighbor[.]” (Id.) 10 VPD “Officer Simon denied [plaintiff] a thorough investigation[.]” (Id.) 11 On July 11, 2018, VPD “Officer Brennan was stalking and harassing” plaintiff. (Id.) On 12 September 14, 2018, plaintiff called the VPD to report a rape. (Id. at 9.) Plaintiff received a call 13 from VPD Officer Eisert. (Id.) When asked “about the terms of rape [Officer Eisert] laughed and 14 then said ‘NO!’” (Id.) Officer Eisert told plaintiff “‘a rape kit is not going to do anything’” and 15 “never asked for any evidence[.]” (Id.) 16 On October 12, 2018, plaintiff received a letter from the VPD stating it completed “a 17 thorough investigation” of plaintiff’s “report of threatening and kidnapping[.]” (Id.) On 18 November 5, 2019, VPD “Officer Brennan stalked and harassed” plaintiff at 4pm “at Maximum 19 Fitness in Vacaville ca[.]” (Id.) Based on these allegations the third amended complaint asserts 20 the following causes of action against various named defendants: (1) 42 U.S.C. § 1983 ; (2) 42 21 U.S.C. § 1983 (Municipal and Supervisory Liability); (3) California Civil Code § 52.1; (4) 22 negligence; (5) Gangstalking Penal Code § 646.9; (6) Americans with Disabilities Act; and (7) 18 23 U.S.C. § 242 . (Id. at 12-24.) 24 Defendants Vacaville City Manager Jeremy Craig, Police Chief John Carli, Capt. 25 Schmutzler, Lt. Donaldson, Lt. Polen, Sgt. Carey, Sgt. Kellis, Sgt. Nadasdy, Sgt. Ramirez, 26 Officer Simon, Officer Eisert, and Officer Brennan, (“Individual Defendants”), filed a motion to 27 dismiss pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, (“Rules”), on January 28, 28 //// 1 2020. (ECF No. 45.) Plaintiff filed an opposition and motion to strike on February 3, 2020.2 2 (ECF No. 50.) 3 On February 6, 2020, defendant City of Vacaville filed a motion to dismiss pursuant to 4 Rule 12(b)(6) and for a more definitive statement pursuant to Rule 12(e). (ECF No. 51.) On 5 February 19, 2020, plaintiff filed a motion for further leave to amend and a proposed fourth 6 amended complaint. (ECF Nos. 54 & 55.) Plaintiff’s motion, however, was defective as filed. 7 (ECF No. 56.) On February 24, 2020, plaintiff filed a “re-motion for leave.” (ECF No. 57.) On 8 March 2, 2020, the individual defendants filed a reply to plaintiff’s opposition. (ECF No. 58.) 9 On March 9, 2020, the undersigned took the motions under submission. (ECF No. 60.) 10 STANDARD 11 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6) 12 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 13 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 14 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 15 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 16 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 17 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 18 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 19 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 20 Iqbal, 556 U.S. 662, 678 (2009). 21 In determining whether a complaint states a claim on which relief may be granted, the 22 court accepts as true the allegations in the complaint and construes the allegations in the light 23 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 24 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less 25 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 , 26 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the [27] 2 Although styled as a motion to strike, the document is an opposition. The undersigned will, 28 therefore, recommend that plaintiff’s motion to strike be denied. 1 form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638 , 643 n.2 (9th 2 Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than 3 an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 . A 4 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 5 elements of a cause of action.” Twombly, 550 U.S. at 555 ; see also Iqbal, 556 U.S. at 676 6 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 7 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 8 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have 9 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, [10] 459 U.S. 519, 526 (1983). 11 In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted 12 to consider material which is properly submitted as part of the complaint, documents that are not 13 physically attached to the complaint if their authenticity is not contested and the plaintiff’s 14 complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, [15] 250 F.3d 668, 688-89 (9th Cir. 2001). 16 II. Legal Standards Applicable to Motions For a More Definite Statement Pursuant to 17 Rule 12(e) 18 Federal Rule of Civil Procedure 12(e) provides: 19 A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or 20 ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must 21 point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed 22 within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate 23 order. 24 Fed. R. Civ. P. 12(e); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“If a 25 pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant 26 can move for a more definite statement under Rule 12(e) before responding.”); C.B. v. Sonora 27 Sch. Dist., 691 F. Supp. 2d 1170, 1190-91 (E.D. Cal. 2010) (“A Rule 12(e) motion is proper only 28 //// 1 if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being 2 asserted, i.e., so vague that the defendant cannot begin to frame a response.”). 3 “Motions pursuant to Rule 12(e) are generally ‘viewed with disfavor and are rarely 4 granted[.]’” Nguyen v. CTS Electronics Manufacturing Solutions Inc., 301 F.R.D. 337 , 340 5 (N.D. Cal. 2014) (quoting E.E.O.C. v. Alia Corp., 842 F.Supp.2d 1243, 1250 (E.D. Cal. 2012)). 6 A court should deny a motion for a more definite statement “if the complaint is specific enough to 7 notify [a] defendant of the substance of the claim being asserted” or “if the detail sought by a 8 motion for more definite statement is obtainable through discovery.” C.B., 691 F. Supp. 2d at 9 1191. A Rule 12(e) motion “is likely to be denied where the substance of the claim has been 10 alleged, even though some of the details are omitted.” Neveu v. City of Fresno, 392 F. Supp. 2d 11 1159, 1169 (E.D. Cal. 2005). This liberal pleading standard is consistent with Federal Rule of 12 Civil Procedure 8(a) which allows pleadings that simply contain a “short and plain statement of 13 the claim.” Id. 14 ANALYSIS 15 I. Individual Defendants’ Motion to Dismiss Pursuant to Rule 4(m) 16 As noted above, the individual defendants seek dismissal from this action due to 17 plaintiff’s failure to comply with Rule 4(m). (ECF No. 45.) Defendants’ motion establishes the 18 following. Plaintiff’s original complaint was filed in the Sacramento County Superior Court on 19 October 25, 2018, and named as defendants the City of Vacaville, City Police Chief John Carli, 20 Sgt. Smith, and Officer E. (ECF No. 1 at 5.) Plaintiff attempted service of the complaint on the 21 City Manager, then-City Mayor, and a City Police Department Records Assistant. (ECF No. 45 22 at 6.) 23 On January 9, 2019, plaintiff filed a “Complaint and Jury Demand,” and the Sacramento 24 County Superior Court issued summons to “City of Vacaville, a public entity; City of Vacaville 25 Police Chief John Carli, in his individual and official capacities; SGT. Smith, Officer E and Does 26 1 - 20.” (ECF No. 1 at 47.) Plaintiff personally delivered this summons to the City. (ECF No. 45 27 at 7.) An unknown party provided these documents “to the City’s police department by pushing 28 the documents against the lobby glass window of the front counter” on February 21, 2019. (Id. at 1 8.) Plaintiff filed a first amended complaint on March 19, 2019. (Id.) There is no proof of 2 service for this amended complaint. (Id.) 3 On March 25, 2019, the action was removed to this court. (ECF No. 1.) On that date a 4 letter was issued to plaintiff advising plaintiff of Rule 4. (ECF No. 3.) On April 5, 2019, plaintiff 5 filed a first amended complaint in this court. (ECF No. 10.) On April 16, 2019, plaintiff filed a 6 second amended complaint. (ECF No. 13.) 7 On January 21, 2020, the undersigned dismissed plaintiff’s second amended complaint 8 with further leave to amend. (ECF No. 41.) Therein, the undersigned advised plaintiff that 9 “although summons has issued for several defendants only defendant City of Vacaville has 10 appeared in this action” and that “plaintiff has not filed proof of service on any defendant.” (Id. 11 at 4.) Plaintiff was warned that Rule 4(m) provided that “a defendant must be dismissed if 12 service of the summons and complaint are not accomplished on the defendant within 90 days after 13 the complaint was filed.” (Id.) 14 On January 23, 2020, plaintiff filed a third amended complaint. (ECF No. 42.) 15 Additional summonses issued. (ECF No. 43.) On January 28, 2020, the individual defendants 16 filed the pending motion to dismiss due to plaintiff’s failure to comply with Rule 4(m). (ECF No. 17 45.) Despite the undersigned’s caution and defendants’ motion to dismiss, plaintiff has never 18 filed proof of proper service on any individual defendant, as to the third amended complaint or 19 any other complaint. 20 As plaintiff was previously advised, Rule 4(m) of the Federal Rules of Civil Procedure 21 provides, generally, that a defendant must be dismissed if service of the summons and complaint 22 are not accomplished on the defendant within 90 days after the complaint was filed. 23 … Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of 24 good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a 25 showing of excusable neglect. 26 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 27 F.3d 1188 , 1198 (9th Cir. 2009)). 28 //// 1 “When considering a motion to dismiss a complaint for untimely service, courts must 2 determine whether good cause for the delay has been shown on a case by case basis.” In re 3 Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). The burden to show good cause is the plaintiff’s. 4 See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). “At a minimum, ‘good cause’ 5 means excusable neglect. A plaintiff may also be required to show the following: (a) the party to 6 be served personally received actual notice of the lawsuit; (b) the defendant would suffer no 7 prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” 8 Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). 9 Here, plaintiff’s opposition fails to show either excusable neglect or good cause. 10 Plaintiff’s opposition in fact fails to discuss any of the relevant factors. Instead, plaintiff argues 11 that defendants “motion to dismiss should be denied because of the court clerk submitting all 12 pleadings electronically after they have been filed to the court.” (Pl.’s Opp.’n (ECF No. 50) at 2.) 13 According to plaintiff, “[i]n the state of California any person who is enrolled in the State bar is 14 required by law to electronically file which would consent to receive service by e-filing.” (Id.) In 15 this regard, defendants’ “counsel have express consent by affirmative consent through electronic 16 means.” (Id. at 3.) 17 Plaintiff is incorrect. Pursuant to Rule 4(e) a plaintiff may serve an individual defendant 18 by: 19 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 20 located or where service is made; or 21 (2) doing any of the following: 22 (A) delivering a copy of the summons and of the complaint to the individual personally; [23] (B) leaving a copy of each at the individual’s dwelling or 24 usual place of abode with someone of suitable age and discretion who resides there; or [25] (C) delivering a copy of each to an agent authorized by 26 appointment or by law to receive service of process. 27 Fed. R. Civ. P. 4(e). Pursuant to California state law an individual may be served by delivering a 28 copy of the summons and complaint by “personal delivery or any authorized agent for service of 1 process;” “[s]ubstitute service coupled with mailing after a good faith effort at personal service 2 has been attempted;” or “[s]ervice by publication.” Cal. Code Civ. Proc. §§ 415.10, 415.20, 3 415.30, 415.50. 4 The undersigned is cognizant of the challenges faced by pro se litigants. However, it has 5 been almost two years since plaintiff commenced this action. Plaintiff was repeatedly warned 6 about the requirements of Rule 4 and explicitly warned that plaintiff had failed to file proof of 7 service on any defendant. See Galvan v. Saul, Case No. 5:19-cv-0743 CJC (GJS), 2019 WL 8 8888090, at *1 (C.D. Cal. Dec. 9, 2019) (“Given the direct warning to Plaintiff in the Initial Case 9 Management Order, there is no cause, much less good cause, for her failure to prosecute this 10 action by serving Defendant with the Complaint.”). 11 When faced with defendants’ motion to dismiss plaintiff did not attempt to correct the 12 error or put forth any relevant argument as to why the court should forgive the error. See Mann v. 13 Castiel, 729 F.Supp.2d 191, 199 (D. D.C. 2010) (“Although Rule 4(m) requires the Court to 14 examine the ‘factors urged upon it,’ plaintiffs must bring those factors to the attention of the 15 Court before it will consider them as grounds for a discretionary time extension.”). In this regard, 16 the undersigned has no reason to believe that exercising discretion to grant plaintiff additional 17 time for service would result in effective service of process. 18 Accordingly, the undersigned recommends that defendants’ motion to dismiss be granted 19 and the individual defendants be dismissed from this action without prejudice.3 20 II. Defendant City of Vacaville’s Motion to Dismiss Pursuant to Rule 12(b)(6) 21 Review of the third amended complaint and defendant’s motion to dismiss finds that 22 defendant’s motion to dismiss should be granted as the third amended complaint fails to state a 23 claim against defendant City of Vacaville for several reasons. 24 A. Rule 8 25 As recounted above, the allegations found in the third amended complaint are vague, 26 conclusory, and difficult to decipher. And with respect to defendant City of Vacaville it is [27] 3 Although not a factor in the decision, the undersigned has nonetheless reviewed the merits of 28 plaintiff’s claims and the sufficiency of the complaint in reaching 1 entirely unclear what plaintiff is alleging the City did wrong. Although the Federal Rules of Civil 2 Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the 3 plaintiff’s claims and must allege facts that state the elements of each claim plainly and 4 succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646 , 649 (9th 5 Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 6 elements of cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked 7 assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) 8 (quoting Twombly, 550 U.S. at 555, 557 ). A plaintiff must allege with at least some degree of 9 particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 10 733 F.2d at 649. 11 B. 42 U.S.C. § 1983 12 The third amended complaint alleges a claim for “Municipal and Supervisory Liability” 13 pursuant to 42 U.S.C. § 1983 against “all defendants.” (Third Am. Compl. (ECF No. 42) at 13.) 14 “In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a 15 municipality may not be held liable for a § 1983 violation under a theory of respondeat superior 16 for the actions of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th 17 Cir. 2016). In this regard, “[a] government entity may not be held liable under 42 U.S.C. § 1983 , 18 unless a policy, practice, or custom of the entity can be shown to be a moving force behind a 19 violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 20 2011) (citing Monell, 436 U.S. at 694 ). 21 In order to allege a viable Monell claim a plaintiff “must demonstrate that an ‘official 22 policy, custom, or pattern’ on the part of [the City] was ‘the actionable cause of the claimed 23 injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City 24 of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three ways a “policy” can be 25 established. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010). 26 “First, a local government may be held liable ‘when implementation of its official policies 27 or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 436 U.S. 28 at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government is liable 1 for a policy of inaction or omission, for example when a public entity, “fail[s] to implement 2 procedural safeguards to prevent constitutional violations” or fails to adequately train its 3 employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470 , 1477 (9th Cir. 4 1992)); see also Clouthier, 591 F.3d at 1249 (quoting City of Canton v. Harris, 489 U.S. 378 , 390 5 (1989)) (failure to train claim requires plaintiff show that “‘the need for more or different training 6 [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, 7 that the policymakers . . . can reasonably be said to have been deliberately indifferent to the 8 need.’”); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose 9 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 10 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that 11 amount to deliberate indifference; and (3) that these customs or policies were the moving force 12 behind the employee’s violation of constitutional rights.”). “Third, a local government may be 13 held liable under § 1983 when ‘the individual who committed the constitutional tort was an 14 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 15 unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting 16 Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)). 17 However, a complaint alleging a Monell violation “‘may not simply recite the elements of 18 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 19 to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of 20 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 21 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] 22 how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, 23 and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of 24 Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936 , 25 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the 26 specific content of the municipal entity’s alleged policy or custom.”). 27 Here, the third amended complaint fails to identify any specific policy or custom at issue, 28 or any facts that would support the claim. Instead, the third amended complaint simply alleges in 1 a vague and conclusory manner that the “Defendants” acted “pursuant to the following customs 2 policies, practices, and/or procedures,” to “obstruct justice,” “not follow protocol,” “not submit 3 proper documentation,” “decline assistance,” etc. (Third Am. Compl. (ECF No. 42) at 13.) 4 Accordingly, the third amended complaint fails to state a Monell claim against the City of 5 Vacaville. 6 C. Americans With Disability Act & Rehabilitations Act 7 The third amended complaint also attempts to assert a claim against defendant City of 8 Vacaville for violation of the Americans With Disabilities Act, (“ADA”), and Rehabilitations Act 9 (“RA”). (Id. at 20.) “Congress enacted the ADA ‘to provide clear, strong, consistent, enforceable 10 standards addressing discrimination against individuals with disabilities.’” Arizona ex rel. 11 Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 669 (9th Cir. 2010) (quoting 42 12 U.S.C. § 12101 (b)(2)). “Title II is the portion of the ADA that applies to state and local 13 governments.” Cohen v. City of Culver City, 754 F.3d 690, 694-95 (9th Cir. 2014). 14 “To prevail under Title II, the plaintiff must show that: (1) he is a qualified individual with 15 a disability; (2) he was either excluded from participation in or denied the benefits of a public 16 entity’s services, programs, or activities, or was otherwise discriminated against by the public 17 entity; and (3) this exclusion, denial, or discrimination was by reason of his disability.” Id. To 18 prevail on a claim under the Rehabilitation Act, a plaintiff “must show (1) he is an individual with 19 a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of 20 the program solely by reason of his disability; and (4) the program receives federal financial 21 assistance.” Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). 22 Here, although the third amended complaint’s disability related claims are asserted against 23 “ALL DEFENDANTS” the allegations assert, in a vague and conclusory manner, that “Defendant 24 failed to reasonably accommodate Defendants (sic) disability in the course of contacting and 25 seizing him, causing her to suffer greater injury in the process than other residence in Vacaville.” 26 (Third Am. Compl. (ECF No. 42) at 21.) And the third amended complaint fails to identify a 27 benefit or service plaintiff was denied with any specificity. 28 //// 1 Accordingly, the third amended complaint fails to allege a viable claim pursuant to the 2 ADA or RA. 3 D. 18 U.S.C. § 242 4 The third amended complaint attempts to allege a claim for violation of 18 U.S.C. § 242 . 5 (Id. at 22.) 18 U.S.C. § 242 does not, however, provide a private right of action as it is a criminal 6 statute. See Powell v. Kopman, 511 F. Supp. 700, 704 (S.D. N.Y. 1981) (dismissing claim under [7] 18 U.S.C. § 242 , “which is the criminal analogue to [42 U.S.C.] § 1983,” because “a criminal 8 provision . . . does not create a private right of action”). 9 E. California Tort Claims Act 10 The third amended complaint alleges state law claims for violation of California Civil 11 Code § 52.1, negligence, and California Penal Code § 646.9. (Third Am. Compl. (ECF No. 42) at 12 15-18.) However, the “California Tort Claims Act requires, as a condition precedent to suit 13 against a public entity, the timely presentation of a written claim and the rejection of the claim in 14 whole or in part.” Mangold v. California Public Utilities Com’n, 67 F.3d 1470 , 1477 (9th Cir. 15 1995). Plaintiff “must allege compliance or circumstances excusing compliance” in the 16 complaint. Id. 17 Here, the third amended complaint does not address the California Tort Claims Act. 18 “Thus, Plaintiff’s claims under California law are properly dismissed since Plaintiff has failed to 19 allege compliance with the CTCA.” Patterson v. Warden, No. 1:12-cv-1948 JLT (PC), 2013 WL 20 5718603, at *6 (E.D. Cal. Oct. 18, 2013). 21 III. Further Leave to Amend 22 The undersigned has carefully considered whether plaintiff may further amend the third 23 amended complaint to state a claim upon which relief can be granted. “Valid reasons for denying 24 leave to amend include undue delay, bad faith, prejudice, and futility.” California Architectural 25 Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466 , 1472 (9th Cir. 1988); see also Klamath-Lake 26 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that 27 while leave to amend shall be freely given, the court does not have to allow futile amendments). 28 //// 1 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 2 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 3 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221 , 4 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 5 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 6 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 7 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 8 1988)). 9 Here, plaintiff has repeatedly amended the complaint. In granting plaintiff leave to file a 10 third amended complaint, the undersigned issued an order advising plaintiff of the numerous 11 deficiencies found in the second amended complaint. Plaintiff responded by filing the third 12 amended complaint, which is almost identical to the second amended complaint. Thus, in light of 13 the deficiencies noted above and plaintiff’s repeated inability to successfully amend the 14 complaint, the undersigned finds that it would be futile to grant plaintiff further leave to amend. 15 Therefore, the undersigned will recommend that plaintiff not be granted further leave to amend.4 16 CONCLUSION 17 Accordingly, IT IS HEREBY RECOMMENDED that: 18 1. The individual defendants’ January 28, 2020 motion to dismiss (ECF No. 45) be 19 granted; 20 2. The individual defendants be dismissed without prejudice; 21 3. Plaintiff’s February 3, 2020 motion to strike be denied (ECF No. 50); 22 4. Defendant City of Vacaville’s February 6, 2020 motion to dismiss (ECF No. 51) be 23 granted; 24 5. Plaintiff’s February 19, 2020 motion for further leave to amend (ECF No. 54) be 25 denied; 26 //// [27] 4 In reaching this determination that undersigned has reviewed plaintiff’s proposed fourth 28 amended complaint. MwA 2 LUV YE LAINE DMM PO OPO Ee PT Ye IT Ot 1 6. Plaintiff's February 24, 2020 motion for leave to re-file (ECF No. 57) be denied; 2 7. The third amended complaint be dismissed without further leave to amend; and 3 8. This action be closed. 4 These findings and recommendations are submitted to the United States District Judge 5 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within thirty days after 6 | being served with these findings and recommendations, any party may file written objections with 7 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 9 | and filed within fourteen days after service of the objections. The parties are advised that failure 10 | to file objections within the specified time may waive the right to appeal the District Court’s 11 | order. Martinez vy. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: August 31, 2020 [14] 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE [26] 27 | DLB:6 38 DB\orders\orders.pro se\ patterson0521.mtd.f&rs