1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JACOB M. BOSLEY, Case No. 2:23-cv-2994-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 TRUCKEE POLICE DEPARTMENT, 15 Defendant. 16 17 18 Plaintiff, a former county inmate, alleges in his second amended complaint the Truckee 19 Police Department, Placer County Sheriff’s Department, Kimco Reality, and unidentified police 20 officers violated his constitutional rights. ECF No. 13. The allegations in the complaint are 21 insufficient to proceed, and plaintiff’s complaint will be dismissed with leave to amend.1 22

24 1 Plaintiff has also requested access to submit digital evidence. ECF No. 14. Generally, “any person appearing pro se may not utilize electronic filing except with permission of the 25 assigned Judge or Magistrate Judge.” E.D. Cal. L.R. 133(b)(2). “Requests to use paper or electronic filing as exceptions from these Rules shall be submitted as stipulations as provided in 26 L.R. 143 or, if a stipulation cannot be had, as written motions setting out an explanation of 27 reasons for the exception.” E.D. Cal. L.R. 133(b)(3). Plaintiff’s motion does not demonstrate good cause to depart from the normal filing procedure for unrepresented litigants. The motion is 28 denied. 1 Screening and Pleading Requirements 2 A federal court must screen the complaint of any claimant seeking permission to proceed 3 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 4 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 5 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 6 relief. Id. 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 The facts of the complaint are difficult at times to follow, but the court understands 26 plaintiff to allege that on several different dates, police officers unlawfully cited, and on one 27 occasion, violently arrested, him for trespassing in parking lots of certain businesses. ECF No. 13 28 at 3. Plaintiff claims that during this arrest, the police officers seized and destroyed his property. 1 Id. at 3-4. He further alleges that while in jail, he has been assaulted and pepper sprayed. Id. at 4. 2 Plaintiff additionally claims that officers conspired against him to deny him his equal protection 3 rights by stopping him from entering a grocery store. Id. at 5. Plaintiff seeks relief under 42 4 U.S.C. §§ 1982, 1983, 1985, 18 U.S.C. § 245(b)(4)(f), and California’s Unruh Act and Tom Bane 5 Act. 6 As an initial matter, several of the statutes relied upon by plaintiff are inapplicable. 7 Plaintiff has pled no facts that would give rise to a 42 U.S.C. § 1982 claim. The complaint 8 contains no allegations that plaintiff was seeking to rent or purchase property, or that he suffered 9 racially discrimination. See Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 551 (9th 10 Cir. 1980) (explaining that a § 1982 claim is one for housing discrimination). The complaint is 11 also devoid of facts indicating that plaintiff is a member of a protected class. The elements of a 12 claim under section 1985(3) are: “(1) the existence of a conspiracy to deprive the plaintiff of the 13 equal protection of the laws; (2) an act in furtherance of the conspiracy; and (3) a resulting 14 injury.”2 I.H. by & through Hunter v. Oakland Sch. for Arts, 234 F. Supp. 3d 987, 994 (N.D. Cal. 15 2017). Plaintiff alleges a claim for relief pursuant to 18 U.S.C. § 245(b), yet it is well established 16 that this federal criminal statute, which permits federal prosecutions for interference with 17 federally protected rights, does not confer a private right of action for damages. See Cooley v. 18 Keisling, 45 F. Supp. 2d 818 (D. Or. 1999); John’s Insulation, Inc. v. Sisak Constr. Co., 774 F. 19 Supp. 156, 163 (S.D.N.Y. 1991). 20 Plaintiff’s § 1983 claim suffers from a different defect—the facts are too conclusory. The 21 complaint contains allegations that police officers harassed him, but he has not identified the date 22 of these events or any individual officer involved. Moreover, plaintiff alleges that officers used 23 excessive force against him during the arrest and at the jail, but he fails to identify the officers 24 who did this. While an arrest without probable cause can violate the Fourth Amendment and give 25 rise to a claim under § 1983, the complaint’s conclusory allegations are not sufficient to state a 26

27 2 While the complaint did not identify which section of 42 U.S.C. § 1985 plaintiff is seeking relief under, it contains three subparts, and subsection (3) provides a cause of action 28 against state or private conspiracies. See Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). 1 cognizable claim for false arrest. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984); 2 Greathouse v. City of Fresno, No. 1:24-CV-00715-JLT-BAM, 2024 WL 4729133, at *3 (E.D. 3 Cal. Nov. 8, 2024). 4 Plaintiff has not sufficiently alleged facts to bring a claim against either the Truckee 5 Police Department or the Placer County Sheriff’s Department. To state a Monell claim, the 6 complaint must allege that (1) plaintiff was deprived of a constitutional right, (2) the Department 7 has a policy, custom, or practice which amounted to deliberate indifference to that constitutional 8 right; and (3) the policy, custom, or practice was the moving force behind the constitutional 9 violation. See Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011) (citing Monell 10 v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). “[A] local government may not be sued under 11 § 1983 for an injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. 12 Instead, a local government may be sued when an employee who committed a constitutional 13 violation was “acting pursuant to an expressly adopted official policy, longstanding practice or 14 custom, or as a final policymaker.” Thomas v. Cnty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 15 2014) (citing Monell, 436 U.S. at 694). The complaint makes no allegations that any defendant 16 has a policy, custom, or practice that was the moving force behind plaintiff’s alleged 17 constitutional violation. 18 Finally, plaintiff cannot bring a § 1983 claim against Kimco Realty because he has failed 19 to allege that it was acting under the color of state law. See 42 U.S.C. § 1983 (providing a cause 20 of action for conduct by state actors that violates an individual’s constitutional rights). 21 In light of the foregoing, plaintiff has failed to adequately plead any federal claim. 22 Therefore, the court declines to address the remaining state law claims. Decker v. Shasta Cty., 23 No. 2:16-cv-1179-KJN (P), 2017 WL 3601382, *3, 2017 U.S. Dist. LEXIS 134358, *8 (E.D. Cal. 24 Aug. 22, 2017) (“Moreover, absent federal claims, this action cannot proceed solely on the basis 25 of state law claims. Although the court may exercise supplemental jurisdiction of state law 26 claims, a plaintiff must first have a cognizable claim for relief under federal law.”). 27 Plaintiff may file an amended complaint. He is advised that the amended complaint will 28 supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F.3d 896, 907 n.1 (9th Cir. 1 | 2012) (en banc). This means that the amended complaint will need to be complete on its face 2 | without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 3 | complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 4 | complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 5 | defendant’s involvement in sufficient detail. The amended complaint should be titled “Third 6 | Amended Complaint” and refer to the appropriate case number. 7 Accordingly, it is ORDERED that: 8 1. Plaintiff's second amended complaint, ECF No. 13, is dismissed. 9 2. Within thirty days from service of this order, plaintiff shall file either (1) an amended 10 | complaint or (2) notice of voluntary dismissal of this action without prejudice. 11 3. Failure to timely file either an amended complaint or notice of voluntary dismissal may 12 | result in the imposition of sanctions, including a recommendation that this action be dismissed 13 || with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 14 4. The Clerk of Court shall send plaintiff a complaint form with this order. 15 5. Plaintiff's motion to submit digital evidence, ECF No. 14, is denied. 16 7 IT IS SO ORDERED. 18 ( q oy — Dated: _ November 20, 2024 Q_-——— 19 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

21 22 23 24 25 26 27 28