INTRODUCTION

20 On April 10, 2024, Plaintiff Chris Cowart (“Plaintiff”), a California resident 21 proceeding pro se, filed a “Pleading Page For A Complaint,” construed as a civil 22 rights action pursuant to 42 U.S.C § 1983 (the “Complaint”). (Dkt. 1; Dkt. 1-1 at 1.) 23 The Complaint names as the only Defendant, the “Marina [d]el Rey Sheriffs.” (Id.) 24 On April 25, 2024, the Court issued an Order dismissing the Complaint with leave 25 to amend for various pleading deficiencies. (Dkt. 6.) On May 6, 2024, Plaintiff 26 filed the operative First Amended Complaint (the “FAC”). (Dkt. 8.) The FAC 27 names Marina del Rey Sergeant Doe 1 and Deputies Doe 2, Doe 3, and Doe 4, all 28 1 reasons set forth below, the FAC must be dismissed with leave to amend. 2

3 4 II. 5 PLAINTIFF’S ALLEGATIONS IN THE FAC 6 The factual allegations in the FAC1 resemble those in the original Complaint. 7 From what the Court can decipher, Plaintiff alleges three incidents. In the first 8 incident, on October 25, 2023, at approximately 7:00 p.m. on the corner of Gage 9 Street and Broadway Street in Los Angeles, Plaintiff was detained by the California 10 Highway Patrol (“CHP”) for “evading the sheriffs.” (Dkt. 8 at 4, 7.) Defendant 11 Deputy Doe 2 removed Plaintiff from the CHP vehicle and “forcefully pushed” 12 Plaintiff about 200 feet towards the Marina del Rey Sheriff’s vehicle. (Id. at 4, 8.) 13 The “deputies” from the Marina del Rey Sheriff’s Department then used excessive 14 force by assaulting and battering Plaintiff when they were placing him in the back 15 seat of the police vehicle. (Id. at 7.) Plaintiff was neither resisting arrest nor acting 16 aggressively and repeatedly told several deputies at the scene that the handcuffs 17 were too tight, causing his hands to go numb and eventually sustaining nerve 18 damage to both hands. (Id. at 5, 8-9.) Plaintiff was in the police car for 15 to 20 19 minutes and at one point, “started hitting the door, with [his] knee.” (Id. at 7-8.) 20 Plaintiff was transported to a Marina del Rey hospital because he had vomited in the 21 police car, resulting in his lower dentures falling out at the original location. (Id. at 22 8.) 23 In the second incident, on October 25, 2023 at 9:00 p.m., Plaintiff arrived at 24 the Marina del Rey Sheriff’s station and “asked to speak with someone, concerning 25 making a formal complaint” against Deputy Doe 2 for pushing him from the CHP 26

27 1 Plaintiff indicates that there are at least three attachments to the FAC labeled as Attachments A, B, and C. (Dkt. 8 at 7.) However, the attachments are not 28 included with the copy of the FAC in the record. 1 car to the Sheriff’s car. (Id. at 7-8.) The “deputy attacked or assaulted [Plaintiff], 2 for reporting [the] excessive force” incident. (Id. at 9.) Defendant Sergeant Doe 1 3 and Deputy Doe 3 were negligent and breached their duty of care by failing to 4 intervene on the unknown deputy’s attack on Plaintiff. (Id.) 5 In the third incident on October 26, 2023 at approximately 2:00 p.m., Plaintiff 6 alleges that while he was walking out of his detention cell to be transferred to the 7 Los Angeles County Jail, Deputy Doe 4 “violently shove[d]” Plaintiff and stated, 8 “what do[es] [Plaintiff] expect to accomplish by filing a complaint.” (Id.) Deputy 9 Doe 4 “shoved [Plaintiff] hard enough to where [he] could of [been] knock[ed] 10 down, or into the wall.” (Id.) Plaintiff alleges that the deputies’ use of excessive 11 force aggravated and exacerbated his pre-existing spinal injury. (Id. at 5, 8.) 12 Plaintiff appears to allege a Fourth Amendment excessive force claim, as well 13 as state law negligence, assault and battery, and intentional infliction of emotional 14 distress claims. (Id. at 5.) Plaintiff seeks $2,001,200 in mental anguish, pain and 15 suffering, future medical expenses, and “emotional duress.” (Id.) 16

III.

17

STANDARD OF DISMISSAL OF PRO SE COMPLAINT

18 Under Federal Rule of Civil Procedure 12(b)(6), a trial court may dismiss a 19 claim sua sponte “where the claimant cannot possibly win relief.” Omar v. Sea- 20 Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Baker v. Dir., U.S. 21 Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting the 22 Ninth Circuit’s position in Omar and noting that such a sua sponte dismissal “is 23 practical and fully consistent with plaintiff’s rights and the efficient use of judicial 24 25 resources”). The Court’s authority in this regard includes sua sponte dismissal of 26 claims against defendants who have not been served and defendants who have not 27 yet answered or appeared. See Abagnin v. AMVAC Chem. Corp., 545 F.3d 733, 28 742-43 (9th Cir. 2008); see also Reunion, Inc. v. F.A.A., 719 F. Supp. 2d 700, 701 1 filed a motion to dismiss is no bar to the court's consideration of dismissal of the 2 claims against them for failure to state a claim upon which relief can be granted, 3 given that a court may dismiss any complaint sua sponte for failure to state a claim 4 for which relief can be granted pursuant to Rule 12(b)(6).”). 5 Moreover, when a plaintiff appears pro se in a civil rights case, the Court 6 must construe the pleadings liberally and afford the plaintiff the benefit of any 7 doubt. See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018); 8 9 Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (“We construe pro se 10 complaints liberally and afford the petitioner the benefit of any doubt.”). In giving 11 liberal interpretation to a pro se complaint, the Court may not, however, supply 12 essential elements of a claim that were not initially pled. See Litmon v. Harris, 768 13 F.3d 1237, 1241 (9th Cir. 2014). The Court must give a pro se litigant leave to 14 amend the complaint unless it is “absolutely clear that the deficiencies of the 15 complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 16 1212 (9th Cir. 2012) (internal quotation marks omitted). 17 18 IV. 19 DISCUSSION 20 A. The FAC Violates Federal Rule Of Civil Procedure 8. 21 In Plaintiff’s prior pleading, the Court advised Plaintiff of the requirements of 22 Rule 8 of the Federal Rules of Civil Procedure. In particular, the Court advised 23 Plaintiff of the requirement that a complaint shall contain “a short and plain 24 statement of the claim showing that the pleader is entitled to relief.” Smith v. Cty. 25 & Cnty of Honolulu, 887 F.3d 944, 951 (9th Cir. 2018) (quoting Fed. R. Civ. P. 26 8(a)(2)). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 27 8(d)(1). Yet, the FAC again is neither plain, short, nor simple. Rather, the 28 allegations in the FAC fail to contain a coherent factual narrative and leaves 1 Dynamics C4 Sys., 637 F.3d 1047, 1058-59 (9th Cir. 2011) (under Rule 8, a court 2 may dismiss confused, ambiguous and unintelligible pleading); Patterson v. Old 3 Republic Title Co., 2012 WL 2450710, at *2 (E.D. Cal. June 26, 2012) (dismissing, 4 on screening, a complaint which was “disorganized to the point of confusion” and 5 failed to “contain a coherent factual narrative” or a short and plain statement of facts 6 supporting each claim). 7 While the factual allegations in the FAC are more specific than the prior 8 9 Complaint, there are no paragraph breaks or clear indications of which cause of 10 action or defendants are being discussed, making it difficult to understand. For 11 example, Plaintiff’s “Cause of Action One” contains no specific claim or factual 12 allegations against any specific defendant(s). Cause of Actions Two and Four do 13 not specify the specific defendant(s) against whom Plaintiff wishes to pursue the 14 claims against. Indeed, the FAC fails to provide all Defendants with fair notice of 15 the claims in a clear and concise statement. A complaint is subject to dismissal for 16 failure to state a claim if “one cannot determine from the complaint who is being 17 sued, for what relief, and on what theory.” McHenry v. Renne, 84 F.3d 1172, 1178 18 (9th Cir. 1996); see also Cafasso, U.S. ex rel., 637 F.3d at 1059; see, e.g., Steinley v. 19 Health Net, Inc., 2018 WL 6985318, at *5 (C.D. Cal. Dec. 4, 2018) (“Generally, 20 ‘[u]ndifferentiated pleading against multiple defendants is improper’ because it fails 21 to give each defendant notice of the specific allegations and claims that pertain to 22 it.”); E.D.C. Tech., Inc. v. Seidel, 2016 WL 4549132, at *9 (N.D. Cal. Sept. 1, 2016) 23 (“Courts consistently conclude that undifferentiated pleading against multiple 24 defendants is improper.” (brackets and internal quotation marks omitted)). 25 Should Plaintiff choose to file an amended complaint, he is advised to clearly 26 identify the nature of the legal claims he is bringing, the specific facts giving rise to 27 each claim against each individual defendant, and the relief sought. 28 1 B. Plaintiff Has Not Shown Compliance With The Claims Presentation 2 Requirement Of The California Government Claims Act. 3 To the extent Plaintiff is asserting a state tort claim for intentional infliction of 4 emotional distress (“IIED”) or negligence, these claims are subject to the California 5 Government Claims Act. Plaintiff has not shown compliance with the California 6 Government Claims Act. 7 In order to pursue a tort claim against a public entity or public employee 8 under California state law, Plaintiff must establish that he has complied with the 9 claim presentation requirements of the California Government Claims Act. See Cal. 10 Gov’t Code §§ 945.4, 950.2; Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 11 621, 627 (9th Cir. 1988). “Before a civil action may be brought against a public 12 entity [or public employee], a claim must first be presented to the public entity and 13 rejected.” Ocean Servs. Corp. v. Ventura Port Dist., 15 Cal. App. 4th 1762, 1775 14 (1993); Cal. Gov’t Code § 950.2. “[F]ailure to timely present a claim for money or 15 damages to a public entity bars a plaintiff from filing a lawsuit against that entity.” 16 Cty. of Stockton v. Super. Ct., 42 Cal. 4th 730, 738 (2007) (citation and internal 17 quotations omitted). 18 Compliance with the claims presentation requirement is an element of the 19 plaintiff’s claim. See State of Cal. v. Super. Ct. (Bodde), 32 Cal. 4th 1234, 1243-44 20 (2004); see also Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007) 21 (“Timely claim presentation is not merely a procedural requirement, but is . . . a 22 condition precedent to plaintiff’s maintaining an action against defendant . . . and 23 thus an element of the plaintiff’s cause of action.” (internal quotation marks 24 omitted)); United States v. State of Cal., 655 F.2d 914, 918 (9th Cir. 1980) 25 (“Compliance with California’s claim filing statute is . . . an element of a cause of 26 action against the state.”). Plaintiff bears the burden of proof to show compliance 27 with the claims presentation requirement. See Cal. Evid. Code § 500 (“Except as 28 otherwise provided by law, a party has the burden of proof as to each fact the 1 existence or nonexistence of which is essential to the claim for relief or defense that 2 he is asserting.”); Becerra v. McClatchy Co., 69 Cal. App. 5th 913, 950 (2021) 3 (“Under Evidence Code section 500, the plaintiff generally bears the burden of 4 establishing the elements of his or her cause of action.”). 5 The California Government Claims Act also defines the public entity’s 6 responsibilities once it receives a written claim for money or damages. The 7 governing board of the public entity may act on a claim by rejecting it, allowing it, 8 or compromising it. See Cavey v. Tualla, 69 Cal. App. 5th 310, 329 (2021) (citing 9 Cal. Gov’t Code § 912.6(1)). Generally, the board must act “within 45 days after 10 the claim has been presented.” Cal. Gov’t Code § 912.4(a). If the board fails or 11 refuses to act within the specified time, the claim is deemed to have been rejected. 12 See Cal. Gov’t Code § 912.4(c). 13 “Regardless of whether the public entity acts or chooses not to act on a claim, 14 the Government Claims Act requires written notice to the claimant or the claimant’s 15 representative.” Cavey, 69 Cal. App. 5th at 329. Section 913(a) states that 16 “[w]ritten notice of the action taken . . . or the inaction that is deemed rejection 17 under Section 912.4 shall be given in the manner prescribed by Section 915.4.” Cal. 18 Gov’t Code § 913(a). In relevant part, the public entity must provide the claimant 19 with a written notice by using any of the following methods: (1) personally 20 delivering the notice to the person presenting the claim, or (2) mailing the notice to 21 the address, if any, stated in the claim. See Cal Gov’t Code § 915.4(a). “No notice 22 need be given where the claim . . . fails to state either an address to which the person 23 presenting the claim . . . desires notices to be sent or an address of the claimant.” Id. 24 Here, Plaintiff once again has not pled sufficient facts demonstrating his 25 compliance or excuse for noncompliance with the claims presentation requirements 26 of the Government Claims Act. Plaintiff alleges that in January 2024, Plaintiff 27 mailed two separate claims for damages to an unidentified entity. (Dkt. 8 at 10.) 28 The first claim was for replacement of Plaintiff’s dentures and the second claim for 1 alleged excessive force, negligence, and two separate incidents of assault and 2 battery. (Id.) Plaintiff alleges that he never received a response on the two claims. 3 (Id.) Plaintiff fails to identify, if any, the public entity with whom he filed his state 4 tort claims. If Plaintiff presented his state tort claims to the proper public entity in 5 January 2024, Plaintiff should have already received a written response from the 6 public entity. Thus, if Plaintiff choses to amend his complaint, Plaintiff should state 7 the public entity to which he mailed the claims and provide the Court with a copy of 8 the written notice from the public entity. 9 V. 10 11 ORDER 12 The First Amended Complaint is dismissed with leave to amend. On or 13 before July 8, 2024, Plaintiff shall file a Second Amended Complaint (“SAC”) that 14 attempts to remedy the identified defects. If Plaintiff chooses to file a SAC, it 15 should bear the docket number assigned to this case (2:24-cv-02900-DSF-AJR), be 16 labeled “Second Amended Complaint,” and be complete and of itself without 17 reference in any manner to the original Complaint, the First Amended Complaint, or 18 any other document (except any document that Plaintiff chooses to attach to the 19 SAC as an exhibit). Plaintiff is encouraged to state his claims in simple language 20 and provide only a brief statement of supporting facts, omitting facts that are not 21 relevant. Should Plaintiff decide to file a SAC, he is encouraged to utilize the Pro 22 Se 15 form complaint attached to this Order. 23 Plaintiff is explicitly cautioned that failure to timely file a SAC, or failure 24 to correct the deficiencies described above, may result in a recommendation 25 that this action be dismissed with prejudice for failure to prosecute and/or obey 26 Court orders pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is 27 further advised that if he no longer wishes to pursue this action, he may voluntarily 28 dismiss the action by filing a Notice of Dismissal in accordance with Federal Rule 1 || of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiffs 2 || convenience. 3 4 || ITIS SO ORDERED. 5 6 |} DATED: — June 7, 2024 7 \oek Ry le 8 HON. A. JOEL RICHLIN

UNITED STATES MAGISTRATE JUDGE

9 10 11 |) Attachments: 12 CV-09, Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c). Pro Se 15, Complaint for Violation of Civil Rights (Non-Prisoner), available at 13 || https://www.uscourts.gov/forms/pro-se-forms/complaint-violation-civil-rights-non- 14. || Prisoner. 15 16 17 18 19 20 21 22 23 24 25 26 27 28