1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD RAY HOWARD, No. 2:18-cv-2951 MCE DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 POMONA P.D., POMONA CA. 15 Defendant. 16 17 Plaintiff, Donald Ray Howard, is proceeding in this action pro se. This matter was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 Pending before the court are plaintiff’s amended complaint and motion to proceed in forma 20 pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 2 & 4.) Therein, plaintiff complains about an 21 alleged assault that occurred in April of 2010. 22 The court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons 25 stated below, the undersigned will recommend that plaintiff’s amended complaint be dismissed 26 without leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Amended Complaint 11 As was true of the original complaint, a review of plaintiff’s amended complaint finds that 12 it is deficient in several respects. 13 A. Failure to State a Claim 14 The amended complaint fails to contain a short and plain statement of a claim showing 15 that plaintiff is entitled to relief. In this regard, the amended complaint alleges: 16 On April 23rd and April 24th 2010 [plaintiff] was attacked by 7 men in the parking lot of the Backdoor Inn on Mission Ave in the City of 17 Pomona Ca. . . . The clerk (cashier) Chevron called 911 April 24th. [Plaintiff] was bleeding from laceration over left eye. 18 [Defendant] Officer Lewis arrives asking [plaintiff] “Are you OK”? 19 [Plaintiff] was at a loss for words! No [plaintiff] was not ok! [Plaintiff] needed medical attention and [Officer Lewis’] did not do 20 his Job. [Officer Lewis] left the scene. 21 (Am. Compl. (ECF No. 1) at 4.1) 22 From these sparse factual allegations, it is entirely unclear what claim is being asserted 23 against defendant Lewis or what facts support that claim. And the amended complaint fails to 24 include any allegations against defendant Pomona Police Department. 25 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 26 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 27 1 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 2 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 3 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 4 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 5 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 6 557). A plaintiff must allege with at least some degree of particularity overt acts which the 7 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 8 Moreover, 42 U.S.C. § 1983 provides that, 9 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation 10 of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit 11 in equity, or other proper proceeding for redress. 12 “In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court 13 held that a municipality may not be held liable for a § 1983 violation under a theory of respondeat 14 superior for the actions of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060, 15 1073 (9th Cir. 2016) (en banc). In this regard, “[a] government entity may not be held liable 16 under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a 17 moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 18 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). 19 Thus, municipal liability in a § 1983 case may be premised upon: (1) an official policy; 20 (2) a “longstanding practice or custom which constitutes the standard operating procedure of the 21 local government entity;” (3) the act of an “official whose acts fairly represent official policy such 22 that the challenged action constituted official policy;” or (4) where “an official with final policy- 23 making authority delegated that authority to, or ratified the decision of, a subordinate.” Price v. 24 Sery, 513 F.3d 962, 966 (9th Cir. 2008). 25 To sufficiently plead a Monell claim, allegations in a complaint “may not simply recite the 26 elements of a cause of action, but must contain sufficient allegations of underlying facts to give 27 fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. 28 Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 1 (9th Cir. 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, 2 explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the 3 plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” 4 Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 5 148 F.Supp.3d 936, 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims 6 that fail to identify the specific content of the municipal entity’s alleged policy or custom.”). 7 B. Statute of Limitations 8 42 U.S.C. § 1983 does not contain a specific statute of limitations. “Without a federal 9 limitations period, the federal courts ‘apply the forum state’s statute of limitations for personal 10 injury actions, along with the forum state’s law regarding tolling, including equitable tolling, 11 except to the extent any of these laws is inconsistent with federal law.’” Butler v. National 12 Community Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. 13 Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927 14 (9th Cir. 2004). Before 2003, California’s statute of limitations for personal injury actions was 15 one year. See Jones, 393 F.3d at 927. Effective January 1, 2003, however, in California that 16 limitations period became two years. See id.; Cal. Code Civ. P. § 335.1. 17 Here, although the amended complaint alleges that this court has “jurisdiction” over this 18 action because plaintiff “was Assaulted August 3rd 2018,” neither defendant is alleged to have 19 been involved in that incident. (Am. Compl. (ECF No. 40) at 1.) And the factual allegations at 20 issue concern events that occurred in April of 2010. (Id. at 4.) This action was filed in November 21 of 2018—more than six years after the running of the statute of limitations. (ECF No. 1.) In 22 dismissing the original complaint with leave to amend, the undersigned advised plaintiff of this 23 defect. (ECF No. 3 at 5.) Plaintiff, however, did not correct or address this issue in the amended 24 complaint. 25 A court may dismiss a complaint where “‘it appears beyond doubt that the plaintiff can 26 prove no set of facts that would establish the timeliness of the claim.’” Von Saher v. Norton 27 Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Supermail Cargo, 28 Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1 1273, 1276-77 (9th Cir. 1993) (where the running of the statute of limitations is apparent on the 2 face of a complaint, dismissal for failure to state a claim is proper, so long as plaintiff is provided 3 an opportunity to amend in order to allege facts which, if proved, might support tolling). 4 C. Venue 5 When a defendant has yet to appear, a district court has “the authority to raise the issue of 6 defective venue on its own motion.” Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 7 Pursuant to 28 U.S.C. § 1391(b) 8 A civil action may be brought in-- 9 (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; 10 (2) a judicial district in which a substantial part of the events or 11 omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or 12 (3) if there is no district in which an action may otherwise be brought 13 as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect 14 to such action. 15 “The district court of a district in which is filed a case laying venue in the wrong division or 16 district shall dismiss, or if it be in the interest of justice, transfer such case to any district or 17 division in which it could have been brought.” 28 U. S.C. § 1406(a). 18 Here, the amended complaint alleges that the events at issue took place in Pomona, 19 California, which is in Los Angeles County—part of the Central District of California. (Am. 20 Compl. (ECF No. 4) at 4.) Los Angeles County is not part of the Eastern District of California. 21 The defendants are identified as the Pomona Police Department and a Pomona Police Office. (Id. 22 at 1.) And the amended complaint does not allege why this action could not be brought in the 23 Central District of California. Thus, it appears that this court is not the correct venue for this 24 action. 25 III. Further Leave to Amend 26 For the reasons stated above, plaintiff’s amended complaint should be dismissed. The 27 undersigned has carefully considered whether plaintiff may further amend the complaint to state a 28 claim upon which relief could be granted. “Valid reasons for denying leave to amend include 1 | undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 2 || Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 3 | Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 4 | be freely given, the court does not have to allow futile amendments). In light of the deficiencies 5 | noted above, the undersigned finds that it would be futile to grant plaintiff further leave to amend 6 | in this case. 7 CONCLUSION 8 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff's November 9, 2018 application to proceed in forma pauperis (ECF No. 2) be 10 | denied; 11 2. Plaintiff's May 6, 2019 amended complaint (ECF No. 4) be dismissed without leave to 12 || amend; and 13 3. This action be dismissed. 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 16 | days after being served with these findings and recommendations, plaintiff may file written 17 || objections with the court. A document containing objections should be titled “Objections to 18 | Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 || objections within the specified time may, under certain circumstances, waive the right to appeal 20 | the District Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: October 11, 2019

A ‘BORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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DLB:6

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