Clarence McKelry v. James T. Butts

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 CLARENCE C. McKELRY, ) Case No. 2:19-cv-07445-MWF (JDE) ) 12 Plaintiff, ) ) ORDER OF DISMISSAL 13 v. ) ) 14 JAMES T. BUTTS, et al., ) ) ) 15 Defendants. ) ) [16] ) [17] I. [18] INTRODUCTION [19] On August 27, 2019, Plaintiff Clarence C. McKelry (“Plaintiff”), [20] proceeding pro se and seeking leave to proceed in forma pauperis (Dkt. 3, “IFP [21] Request”), filed a civil rights complaint under 42 U.S.C. § 1983 (“Section [22] 1983” or “§ 1983”) against Inglewood Mayor James T. Butts. (“Mayor Butts”) [23] in his individual and official capacity. Dkt. 1 (“Complaint”) at 1-2. Following [24] an order identifying apparent deficiencies on the face of the Complaint (Dkt. [25] 5), Plaintiff filed a First Amended Complaint against Mayor Butts, Angela [26] Garcia, Steven Jaen, Jordan Rodgers, and Neal Cochran. Dkt. 6 (“FAC”). On [27] October 18, 2019, the assigned magistrate judge, following a screening of the [28] 1 FAC under 28 U.S.C. § 1915 (e)(2), found that the FAC was subject to 2 dismissal for failing to state a claim upon which relief may be granted and 3 directed Plaintiff to, within 30 days: (1) file a second amended complaint; (2) 4 file a notice of election to stand on the FAC; or (3) voluntarily dismiss the 5 action. Plaintiff did not timely comply with any of the three options or seek 6 additional time in which to do so. 7 As set forth below, the Court finds the FAC fails to state a claim upon 8 which relief may be granted, dismisses the FAC and denies Plaintiff’s IFP 9 Request pursuant to 28 U.S.C. § 1915 (e)(2). 10 II. 11 SUMMARY OF PLAINTIFF’S ALLEGATIONS IN THE FAC 12 Plaintiff alleges a violation of “U.S.C. 240” with his supporting facts, set 13 forth, in full, below: 14 With the Mayor and the City of Inglewood, I tried to resolve 15 harassment civilly. After going through the run-around, I found this 16 was my last alternative. I was falsely accused of crimes I’ve never 17 committed by Angela Garcia. This Action got me arrested where 18 Angela Garcia was able to gain access to property where the 19 incidence occurred. I went to trial the case was dismissed at trial. My 20 vehicle was towed from the premises on three different occasions 21 illegally. My property was stolen. As a result of being jailed falsely, I 22 lost my job. Inglewood City Hall toyed with me as a result. There’s a 23 sign at my location defaming my character. I consistently tried to 24 resolve the matter with the Mayor and the City which commits him 25 to this conspiracy – and allowing the sign to stay posted defaming my 26 character by denying me access to property I’m entitled to occupy. 27 FAC at 5 (CM/ECF pagination). Plaintiff, who sues Mayor Butts in his 28 official capacity and the other defendants in their respective individual 1 capacities, seeks damages of $1,000,000. Id. at 3, 6 . Plaintiff asserts that the 2 defendants, other than Mayor Butts, were acting under color of law as follows: 3 Angela Garcia “false Complaint, perjury”; Steven Jaen “Kidnapped me. 4 (illegal)”; Jordan Rodgers “Kidnapper 2”; Neal Cochran “Gave the approval 5 to kidnap me.” Id. at 3-4 . Plaintiff attaches various superior court records, 6 photographs, and towing-related records, the significance of which is not 7 always apparent. Id. at 7-16 . 8 III. 9 STANDARD OF REVIEW 10 Under 28 U.S.C. § 1915 (e)(2), the Court must dismiss a complaint if it 11 fails to state a claim on which relief may be granted. A complaint may be 12 dismissed for failure to state a claim for two reasons: (1) lack of a cognizable 13 legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri 14 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). In 15 determining whether the complaint states a claim, its factual allegations must 16 be taken as true and construed in the light most favorable to the plaintiff. See 17 Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Courts 18 construe the allegations of pro se complaints liberally. Erickson v. Pardus, 551 19 U.S. 89, 94 (2007) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338 , 342 20 (9th Cir. 2010) (as amended). But “a liberal interpretation of a civil rights 21 complaint may not supply essential elements of the claim that were not 22 initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251 , 1257 (9th 23 Cir. 1997) (citation omitted). “[T]he tenet that a court must accept as true all of 24 the allegations contained in a complaint is inapplicable to legal conclusions.” 25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 26 When screening a complaint, the Court applies the same standard as it 27 would when evaluating a motion to dismiss under Federal Rule of Civil 28 Procedure 12(b)(6) (“Rule 12(b)(6)”). See Rosati v. Igbinoso, 791 F.3d 1037 , 1 1039 (9th Cir. 2015) (per curiam). Rule 12(b)(6), in turn, is read in conjunction 2 with Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8”). Zixiang Li 3 v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Though Rule 8 does not require 4 detailed factual allegations, at a minimum, a complaint must allege enough 5 specific facts to provide both “fair notice” of the particular claim being asserted 6 and “the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 7 544 , 555 & n.3 (2007) (citation omitted); see also Iqbal, 556 U.S. at 678 (Rule 8 8 pleading standard “demands more than an unadorned, the-defendant9 unlawfully-harmed-me accusation”). 10 If the Court finds that a complaint fails to state a claim, it has discretion 11 to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122 , 12 1126-30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it 13 appears possible that the defects in the complaint could be corrected, especially 14 if the plaintiff is pro se. Id. at 1130-31 ; see also Cato v. United States, 70 F.3d 15 1103, 1106 (9th Cir. 1995) (noting that “[a] pro se litigant must be given leave 16 to amend his or her complaint, and some notice of its deficiencies, unless it is 17 absolutely clear that the deficiencies of the complaint could not be cured by 18 amendment”). However, if, after careful consideration, it is clear that a 19 complaint cannot be cured by amendment, the Court may dismiss without 20 leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v. Fleer/Skybox 21 Int’l, LP, 300 F.3d 1083 , 1088 (9th Cir. 2002) (holding that “there is no need to 22 prolong the litigation by permitting further amendment” where the “basic 23 flaw” in the pleading cannot be cured by amendment). 24 IV. 25 DISCUSSION 26 The FAC does not reference any constitutional provision. Instead, 27 Plaintiff cites “U.S.C. 240.” FAC at 5. The Court interprets the FAC to refer to [28] 18 U.S.C. § 242 , a criminal provision which, among other things, imposes 1 criminal penalties for one who, under color of law, willfully deprives a person 2 of a right, privilege, or immunity secured by the Constitution or the laws of the 3 United States. As Plaintiff files the action under a civil rights complaint under [4] 42 U.S.C. § 1983 (FAC at 1), the Court will interpret it as such. 5 A. General Requirements for Section 1983 Actions 6 To state a civil rights claim under Section 1983, a plaintiff must allege 7 that a defendant, while acting under color of state law, caused a deprivation of 8 the plaintiff’s federal rights. West v. Atkins, 487 U.S. 42, 48 (1988); Taylor v. 9 List, 880 F.2d 1040, 1045 (9th Cir. 1989). The statute “is not itself a source of 10 substantive rights, but a method for vindicating federal rights elsewhere 11 conferred . . ..” Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979). 12 Causation “must be individualized and focus on the duties and 13 responsibilities of each individual defendant whose acts or omissions are 14 alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 15 628, 633 (9th Cir. 1988). An individual “causes” a constitutional deprivation 16 when he or she (1) “does an affirmative act, participates in another’s 17 affirmative acts, or omits to perform an act which he is legally required to do 18 that causes the deprivation”; or (2) “set[s] in motion a series of acts by others 19 which the [defendant] knows or reasonably should know would cause others to 20 inflict the constitutional injury.” Lacey v. Maricopa Cty., 693 F.3d 896 , 915 21 (9th Cir. 2012) (en banc) (citation omitted). 22 B. The Fourth and Fourteenth Amendments 23 The Fourth Amendment protects individuals from “unreasonable 24 searches and seizures” of their “persons, houses, papers, and effects” by the 25 government. U.S. Const., amend. IV. “[A] claim for unlawful arrest is 26 cognizable under § 1983 as a violation of the Fourth Amendment, provided the 27 arrest was without probable cause or other justification.” Dubner v. City & 28 Cty. of S.F., 266 F.3d 959 , 964 (9th Cir. 2001). As for a person’s property, 1 “[w]hile taking and destroying personal property is a seizure, such seizures are 2 only unlawful if they are unreasonable. To assess reasonableness, courts ‘must 3 balance the nature and quality of the intrusion on the individual’s Fourth 4 Amendment interests against the importance of the governmental interests 5 alleged to justify the intrusion.’” Lavan v. City of Los Angeles, 797 F. Supp. 6 2d 1005, 1013 (C.D. Cal. 2011) (citation omitted). 7 Separately, the Fourteenth Amendment provides that no state shall 8 “deprive any person of life, liberty, or property, without due process of law.” 9 Procedural Due Process Clause analysis proceeds in two steps: first, was there 10 a liberty or property interest of which a person has been deprived, and second, 11 if so, were the procedures followed by the State constitutionally sufficient. 12 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Kentucky Dep’t of Corr. [13] v. Thompson, 490 U.S. 454, 460 (1989)); see also Brewster v. Bd. of Educ. of [14] Lynwood Unified Sch. Dist., 149 F.3d 971 , 982 (9th Cir. 1998) (“A procedural [15] due process claim has two distinct elements: (1) a deprivation of a [16] constitutionally protected liberty or property interest, and (2) a denial of [17] adequate procedural protections.”). [18] An unauthorized deprivation of property under color of state law does [19] not violate the Due Process Clause if state law affords a meaningful [20] postdeprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett [21] v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). The Ninth Circuit [22] has held that California law provides an adequate postdeprivation remedy for [23] property deprivations caused by public officials. Barnett, 31 F.3d at 816–17; [24] see Cal. Gov’t Code §§ 810–895; see also Taylor v. City of San Bernardino, [25] 2009 WL 3756561 , at *5 (C.D. Cal. Nov. 4, 2009) (dismissing due process [26] claim based on loss of personal property contained in impounded car because [27] postdeprivation remedy was available). [28] 1 C. The FAC Fails to State a Claim Against Jaen, Rodgers or Cochran 2 The “Supporting Facts” section of the FAC does not mention defendants 3 Steven Jaen, Jordan Rodgers, and Neal Cochran. FAC at 5. The only reference 4 to these three defendants is in the identification of defendants section of the 5 FAC, and the only alleged actions by them, purportedly explaining that they 6 were acting “under color of law,” are the assertions: Steven Jaen “Kidnapped 7 me. (illegal)”; Jordan Rodgers “Kidnapper 2”; Neal Cochran “Gave the 8 approval to kidnap me.” Id. at 3-4 . Even assuming these defendants work for a 9 municipality or other government agency and thus could act under color of 10 law, the alleged “acts” are nothing more than conclusory assertions, 11 unsupported by factual underpinnings, and fail to state a claim under Rule 8, 12 Rule 12, and the applicable Supreme Court and Ninth Circuit authorities. See 13 Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and conclusions’ or a 14 ‘formulaic recitation of the elements of a cause of action will not do’”) (quoting 15 Twombly, 550 U.S. at 555 ); see also Ivey v. Board of Regents, 673 F.2d 266 , 16 268 (9th Cir. 1982) (vague and conclusory allegations are insufficient to state a 17 claim under Section 1983). As a result, the FAC, as to Defendants Jaen, 18 Rodgers, and Cochran, fails to state a claim. 19 D. The FAC Fails to State a Claim Against Angela Garcia 20 “[T]he under-color-of-state-law element of § 1983 excludes from its reach 21 ‘merely private conduct, no matter how discriminatory or wrongful . . ..’” Am. 22 Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. 23 Yaretsky, 457 U.S. 991, 1002 (1982)); see also Ouzts v. Maryland Nat’l Ins. 24 Co., 505 F.2d 547, 550 (9th Cir. 1974) (en banc) (purely private conduct, no 25 matter how wrongful, is not covered under § 1983). There is no right to be free 26 from the infliction of constitutional deprivations by private individuals. Van 27 Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see also Price v. 28 Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (as amended) (“[P]rivate parties 1 are not generally acting under color of state law, and we have stated that 2 ‘[c]onclusionary allegations, unsupported by facts, [will be] rejected as 3 insufficient to state a claim under the Civil Rights Act.’” (citation omitted)). 4 Private conduct is not generally considered governmental action unless 5 “something more” is present. See Sutton v. Providence St. Joseph Med. Ctr., [6] 192 F.3d 826, 835 (9th Cir. 1999). In assessing whether conduct by private 7 actors becomes state action, courts “start with the presumption that conduct by 8 private actors is not state action.” Florer v. Congregation Pidyon Shevuyim, 9 N.A., 639 F.3d 916, 922 (9th Cir. 2011). Courts have applied certain tests to 10 identify whether there is “something more,” including the public function test, 11 the joint action test, the governmental compulsion test, and the governmental 12 nexus test. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982); see 13 also Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). “Private parties act 14 under color of state law if they willfully participate in joint action with state 15 officials to deprive others of constitutional rights.” United Steelworkers of Am. 16 v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989). 17 To prove a conspiracy between the government and private parties under 18 Section 1983, the plaintiff must show “an agreement or ‘meeting of the minds’ 19 to violate constitutional rights.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 20 1983). “The defendants must have, ‘by some concerted action, intend[ed] to 21 accomplish some unlawful objective for the purpose of harming another which 22 results in damage.’” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283 , 23 1301 (9th Cir. 1999) (alteration in original) (citation omitted). Each member of 24 the conspiracy does not need to know the exact details of the plan, but each 25 must at least share the common objective of the conspiracy. United 26 Steelworkers of Am., 865 F.2d at 1540-41 . 27 Here, the FAC does not allege defendant Angela Garcia was anything 28 other than a private party. As a result, there is a presumption that her conduct 1 is not state action. See Florer, 639 F.3d at 922 . Plaintiff has not alleged a 2 “something more” to convert her conduct into state action. Although Plaintiff 3 uses the word “conspiracy” in reference to Mayor Butts, such conclusory 4 allegations, unsupported by facts, are insufficient to convert acts by a private 5 citizen into state action. See Price, 939 F.2d at 707-08. 6 Plaintiff has not alleged a civil rights claim against Angela Garcia. 7 E. The Complaint Fails to State a Claim Against Mayor Butts 8 With respect to the sole remaining defendant, Mayor Butts, the FAC 9 alleges a claim against him solely in his official capacity. 10 First, Plaintiff does not allege that Mayor Butts took or failed to take any 11 action that caused any alleged constitutional injury. Plaintiff’s assertion that he 12 “consistently tried to resolve this matter with the Mayor and the City” does not 13 allege any actions, or failures to act, that caused a constitutional harm. Absent 14 such allegations, the Complaint fails to state a claim against Mayor Butts. See 15 Leer, 844 F.2d at 633 . 16 Second, an “official-capacity suit is, in all respects other than name, to 17 be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159 , 166 18 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Larez v. City of 19 Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). Such a suit “is not a suit 20 against the official personally, for the real party in interest is the entity.” 21 Graham, 473 U.S. at 166 (emphasis in original). Thus, claims for damages 22 against the individual defendants in their official capacity are properly treated 23 as claims against the municipality employing the defendants. 24 A local government entity “may not be sued under § 1983 for an injury 25 inflicted solely by its employees or agents. Instead, it is when execution of a 26 government’s policy or custom, whether made by its lawmakers or by those 27 whose edicts or acts may fairly be said to represent official policy, inflicts the 28 injury that the government as an entity is responsible under § 1983.” See 1 Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 , 694 2 (1978). The municipal entity may not be held liable for the alleged actions of 3 its employees or agents unless “the action that is alleged to be unconstitutional 4 implements or executes a policy statement, ordinance, regulation, or decision 5 officially adopted or promulgated by that body’s officers,” or if the alleged 6 constitutional deprivation was “visited pursuant to a governmental ‘custom’ 7 even though such a custom has not received formal approval through the 8 body’s official decision-making channels.” Id. at 690-91 . To “withstand a 9 motion to dismiss for failure to state a claim, a Monell claim must consist of 10 more than mere ‘formulaic recitations of the existence of unlawful policies, 11 conducts, or habits.’” Bedford v. City of Hayward, 2012 WL 4901434 , at *12 12 (N.D. Cal. Oct. 15, 2012) (quoting Warner v. Cty. of San Diego, 2011 WL 13 662993, at *4 (S.D. Cal. Feb. 14, 2011)); see also Iqbal, 556 U.S. at 678 14 (“Threadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.”); Oviatt v. Pearce, 954 F.2d 1470 , 1477 16 (9th Cir. 1992) (“The existence of a policy, without more, is insufficient to 17 trigger local government liability under section 1983.”); Spiller v. City of Texas 18 City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (“The description of a 19 policy or custom and its relationship to the underlying constitutional violation 20 . . . cannot be conclusory; it must contain specific facts.”). “Monell allegations 21 must be [pled] with specificity.” Galindo v. City of San Mateo, 2016 WL 22 7116927, at *5 (N.D. Cal. Dec. 7, 2016). 23 Here, the FAC fails to allege any custom or practice by any municipal 24 entity caused Plaintiff any alleged harm. Consequently, the FAC fails to state a 25 claim for damages against Mayor Butts in his official capacity. 26 Thus, the FAC’s claims against all defendants fail to state a claim upon 27 which relief can be granted. [28] 1 F. Leave to Amend Is Not Warranted Here 2 As noted, although leave to amend a deficient pleading should be 3 || granted if the defects could be corrected, especially if the plaintiff 1s pro se, 4 || where it is absolutely clear that further amendment cannot cure the defects, 5 || “there is no need to prolong the litigation by permitting further amendment.” 6 || Chaset, 300 F.3d at 1088; Cato, 70 F.3d at 1105-06. Here, the Court finds that 7 || further leave is not warranted as it is absolutely clear that further leave to 8 |}amend would not cure the defects. In support of this finding, the Court notes 9 ||that Plaintiff has twice previously been afforded leave to amend, and the 10 ||second time, Plaintiff did not file a further amended pleading. As a result, 11 || dismissal will be without further leave to amend and with prejudice. 12 V. 13 CONCLUSION AND ORDER 14 For the foregoing reasons, IT IS HEREBY ORDERED THAT: 15 (1) Plaintiff's IFP Request (Dkt. 3) is DENIED; 16 (2) This case is dismissed with prejudice; and 17 (3) Judgment be entered in accordance herewith. [18] 19 ||Dated: December 2, 2019 HM ahs fe | [20] 21 MICHAEL W. FIT LD 22 United States Magistrate Judge [23] 24 || Presented By: Led he 26 = 07 J OHN D. EARLY United States Magistrate Judge