1 2 3 4 5 6 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. ORDER 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 is defendant City of Vacaville’s motion to dismiss. (ECF No. 38.) For 20 the reasons stated below, defendant’s motion to dismiss will be granted and plaintiff will be 21 granted leave to file a third amended complaint. 22 BACKGROUND 23 Plaintiff, proceeding pro se, commenced this action on October 25, 2018, by filing a 24 complaint in the Sacramento County Superior Court. (ECF No. 1 at 5.1) Defendant City of 25 Vacaville removed the matter to this court pursuant to federal question jurisdiction on March 25, 26 2019. (ECF No. 1.) 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 Plaintiff is proceeding on a second amended complaint filed on April 16, 2019. (ECF No. 2 13.) Therein, plaintiff alleges generally that this “is a Civil rights, Police negligence, breach of 3 contract, slavery, corruption, contempt of court, gangstalking and malice” action “resulting in the 4 breaking of [plaintiff’s] constitutional, human and civil rights.” (Sec. Am. Compl. (ECF No. 13) 5 at 2.) More specifically, plaintiff alleges that on June 7, 2018, plaintiff called the Vacaville 6 Police Department (“VPD”) to report a violation of a restraining order. (Id. at 9.) On July 7, 7 2018, plaintiff called the VPD “to report a threat that was made to her by her neighbor[.]” (Id.) 8 VPD “Officer Simon denied [plaintiff] a thorough investigation[.]” (Id.) 9 On July 11, 2018, VPD “Officer Brennan was stalking and harassing” plaintiff. (Id. at 9.) 10 On August 4, 2018, plaintiff’s neighbor “was gangstalking her.” (Id.) On August 24, 2018, 11 plaintiff made a report to the VPD that “alleged how” the family of VPD “SGT. Kellis . . . 12 kidnapped and threatened [plaintiff] for her newborn daughter.” (Id. at 8.) 13 On September 13, 2018, plaintiff was raped by a person known to her. (Id. at 2.) The 14 following day plaintiff reported the rape to the VPD. (Id.) Plaintiff received a call from VPD 15 Officer Eisert who “was unprofessional[.]” (Id.) “Officer Eisert never stated about [plaintiff’s] 16 sexual assault and DNA victims’ rights.” (Id. at 8.) When asked “about the terms of rape 17 [Officer Eisert] laughed and then said ‘NO!’” (Id.) Officer Eisert told plaintiff “‘a rape kit is not 18 going to do anything’” and “never asked for any evidence[.]” (Id.) 19 On October 5, 2018, plaintiff questioned Vacaville’s “Mayor Len Augustine . . . . on how 20 the Vacaville Police Department still never got back to [plaintiff] about the kidnapping of 21 [plaintiff’s] newborn daughter.” (Id. at 2.) The mayor answered that he would contact the VPD. 22 (Id.) On October 12, 2018, plaintiff received a letter from the VPD stating it completed “a 23 thorough investigation” of plaintiff’s “report of threatening and kidnapping[.]” (Id.) On 24 November 5, 2019, VPD “Officer Brennan stalked and harassed” plaintiff at 4pm “at Maximum 25 Fitness in Vacaville ca[.]” (Id.) 26 Based on these allegations the complaint asserts the following causes of action against 27 various named defendants: (1) 42 U.S.C. § 1983; (2) 42 U.S.C. § 1983 (Municipal and 28 Supervisory Liability); (3) California Civil Code § 52.1; (4) negligence; (5) Gangstalking Penal 1 Code § 646.9; (6) Americans with Disabilities Act; and (7) 18 U.S.C. § 242. (Id. at 12-29.) 2 Defendant City of Vacaville filed the pending motion to dismiss pursuant to Rule 12(b)(6) of the 3 Federal Rules of Civil Procedure on May 14, 2019. (ECF No. 29.) Plaintiff filed an opposition 4 on June 26, 2019. (ECF No. 35.) Defendant filed a reply on July 2, 2019. (ECF No. 36.) 5 Defendant’s motion to dismiss was taken under submission on July 8, 2019. (ECF No. 38.) 6 Plaintiff filed sur-replies on July 8, 2019, and July 25, 2019.2 (ECF Nos. 39 & 40.) 7 STANDARD 8 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6) 9 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 10 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 11 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 12 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 13 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 14 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 15 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 16 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009). 18 In determining whether a complaint states a claim on which relief may be granted, the 19 court accepts as true the allegations in the complaint and construes the allegations in the light 20 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 21 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less 22 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 23 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the 24 form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 25 Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than 26

27 2 The filing of a sur-reply is not authorized by the Federal Rules of Civil Procedure or the Local Rules. See Fed. R. Civ. P. 12; Local Rule 230. Nonetheless, in light of plaintiff’s pro se status, 28 the undersigned has considered the sur-replies in evaluating defendant’s motion. 1 an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 2 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 3 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 4 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 6 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have 7 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 8 459 U.S. 519, 526 (1983). 9 In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted 10 to consider material which is properly submitted as part of the complaint, documents that are not 11 physically attached to the complaint if their authenticity is not contested and the plaintiff’s 12 complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 13 250 F.3d 668, 688-89 (9th Cir. 2001). 14 ANALYSIS 15 I. Rule 4(m) 16 Before turning to defendant’s motion to dismiss the undersigned notes that although 17 summons has issued for several defendants only defendant City of Vacaville has appeared in this 18 action. (ECF No. 11.) And plaintiff has not filed proof of service on any defendant. Plaintiff is 19 advised that Rule 4(m) of the Federal Rules of Civil Procedure provides, generally, that a 20 defendant must be dismissed if service of the summons and complaint are not accomplished on 21 the defendant within 90 days after the complaint was filed 22 … Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of 23 good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a 24 showing of excusable neglect. 25 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 26 F.3d 1188, 1198 (9th Cir. 2009)). 27 //// 28 //// 1 II. Defendant’s Motion to Dismiss 2 Review of the second amended complaint and defendant’s motion to dismiss finds that 3 defendant’s motion to dismiss must be granted as the second amended complaint fails to state a 4 claim against defendant City of Vacaville. In this regard, the second amended complaint is 5 devoid of any factual allegations asserting any alleged wrongdoing by defendant City of 6 Vacaville. 7 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 8 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 9 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 10 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 11 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 12 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 13 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 14 557). A plaintiff must allege with at least some degree of particularity overt acts which the 15 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 16 With respect to the specific claims asserted, of the second amended complaint’s seven 17 causes of action only the following five are asserted against defendant City of Vacaville: (1) 18 violation of California Civil Code § 52.1; (2) negligence; (3) violation of California Penal Code § 19 646.9; (4) violation of the Americas With Disabilities Act (“ADA”); and (5) violation of 18 20 U.S.C. § 242. (Sec. Am. Compl. (ECF No. 13) at 17-29.) 21 18 U.S.C. § 242 does not, however, provide a private right of action as it is a criminal 22 statute. See Powell v. Kopman, 511 F. Supp. 700, 704 (S.D. N.Y. 1981) (dismissing claim under 23 18 U.S.C. § 242, “which is the criminal analogue to [42 U.S.C.] § 1983,” because “a criminal 24 provision . . . does not create a private right of action”). 25 As for the ADA, “Congress enacted the ADA ‘to provide clear, strong, consistent, 26 enforceable standards addressing discrimination against individuals with disabilities.’” Arizona 27 ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 669 (9th Cir. 2010) 28 (quoting 42 U.S.C. § 12101(b)(2)). “Title II is the portion of the ADA that applies to state and 1 local governments.” Cohen v. City of Culver City, 754 F.3d 690, 694-95 (9th Cir. 2014). “To 2 prevail under Title II, the plaintiff must show that: (1) he is a qualified individual with a 3 disability; (2) he was either excluded from participation in or denied the benefits of a public 4 entity’s services, programs, or activities, or was otherwise discriminated against by the public 5 entity; and (3) this exclusion, denial, or discrimination was by reason of his disability.” Id. Here, 6 the second amended complaint simply asserts in a vague and conclusory manner that the 7 defendant “failed to reasonably accommodate Defendants (sic) disability in the course of 8 contacting and seizing him, causing her to suffer greater injury in the process than other residence 9 in Vacaville.” (Sec. Am. Compl. (ECF No. 13) at 26.) 10 As to the second amended complaint’s state law causes of action, the “California Tort 11 Claims Act requires, as a condition precedent to suit against a public entity, the timely 12 presentation of a written claim and the rejection of the claim in whole or in part.” Mangold v. 13 California Public Utilities Com’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Plaintiff “must allege 14 compliance or circumstances excusing compliance” in the complaint. Id. Here, the second 15 amended complaint does not address the California Tort Claims Act. 16 For the reasons stated above, defendant’s motion to dismiss must be granted. 17 III. Leave to Amend 18 The undersigned has carefully considered whether plaintiff may further amend the 19 complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to 20 amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. 21 Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake 22 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that 23 while leave to amend shall be freely given, the court does not have to allow futile amendments). 24 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 25 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 26 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 27 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 28 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 1 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 2 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 3 1988)). 4 Here, although plaintiff has previously been granted leave to amend, this is the first 5 instance in which the undersigned has provided legal analysis addressing the deficiencies found in 6 plaintiff’s complaint. In light of this fact, plaintiff’s pro se status, and the vague and conclusory 7 nature of the second amended complaint, the undersigned cannot yet say that it appears beyond 8 doubt that further leave to amend would be futile. 9 Accordingly, the second amended complaint’s claims against defendant City of Vacaville 10 will be dismissed, and plaintiff will be granted leave to file a third amended complaint. Plaintiff 11 is cautioned, however, that if plaintiff elects to file a third amended complaint “the tenet that a 12 court must accept as true all of the allegations contained in a complaint is inapplicable to legal 13 conclusions. Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While legal conclusions can 15 provide the complaint’s framework, they must be supported by factual allegations.” Id. at 679. 16 Those facts must be sufficient to push the claims “across the line from conceivable to 17 plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 18 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 19 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 20 in itself without reference to prior pleadings. The third amended complaint will supersede the 21 second amended complaint just as the amended complaint superseded the original complaint. See 22 Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, just as if it were 23 the initial complaint filed in the case, each defendant must be listed in the caption and identified 24 in the body of the complaint, and each claim and the involvement of each defendant must be 25 sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include 26 concise but complete factual allegations describing the conduct and events which underlie 27 plaintiff’s claims. 28 //// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendant’s May 14, 2019 motion to dismiss (ECF No. 29) is granted. 4 2. The claims found in the second amended complaint (ECF No. 13) asserted against 5 | defendant City of Vacaville are dismissed with leave to amend. 6 3. Within twenty-eight days from the date of this order plaintiff may elect to file a third 7 || amended complaint that cures the defects noted in this order and complies with the Federal Rules 8 | of Civil Procedure and the Local Rules of Practice. The third amended complaint must bear the 9 || case number assigned to this action and must be titled “Third Amended Complaint.” 10 4. Alternatively, plaintiff may forgo filing a third amended complaint and elect to proceed 11 | on the claims asserted against the other defendants in this action. In this regard, plaintiff is not 12 | obligated to file a third amended complaint. However, failure to timely file a third amended 13 | complaint will be construed as plaintiff's consent to the dismissal of defendant City of Vacaville 14 | from this action without prejudice. 15 | Dated: January 20, 2020 16 17 18 B ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

19 20 21 22 23 24 25 | DLB:6 DB\orders\orders.pro se\patterson0521.mtd.ord 27 28