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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 QUINN S. BASS, Case No. EDCV 19-1443-JVS (KK) 11 Plaintiff, 12 v. ORDER DISMISSING FIRST

AMENDED COMPLAINT WITH

13 SAN BERNARDINO COUNTY LEAVE TO AMEND

SHERIFF’S DEPARTMENT, ET AL.,

14 Defendant(s). 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Quinn S. Bass (“Plaintiff”), proceeding pro se and in forma pauperis, 20 filed a First Amended Complaint (“FAC”) which appears to sue defendants City of 21 San Bernardino Police Department, County of San Bernardino Sheriff John 22 McMahon (“McMahon”), County of San Bernardino Sergeant Kelly Craig (“Craig”), 23 County of San Bernardino Deputy Reveles (“Reveles”) in their individual and official 24 capacities, and Hayes Towing (collectively, “Defendants”). ECF Docket No. (“Dkt.”) 25 21 at 10-11. Plaintiff alleges Defendants violated 42 U.S.C. §§ 1983 and 1985 and 18 26 U.S.C. §§ 242 and 245. For the reasons discussed below, the Court dismisses the 27 FAC with leave to amend. 1 II. 2 BACKGROUND 3 On August 2, 2019, Plaintiff filed a Complaint alleging claims pursuant to 42 4 U.S.C. §§ 1983 and 1985 for violations of his First, Fourth, Fifth, Eighth, and Ninth 5 Amendment rights and 18 U.S.C. §§ 242 and 245. Dkt. 1. According to the 6 Complaint, on March 29, 2019 at approximately 5:00 p.m., Plaintiff and his wife were 7 in their car in the parking lot of Sam’s Bargain in San Bernardino, California. Id. at 4- 8 5. Plaintiff alleges Defendants Craig and Reveles “forc[ed them] out at gun point” 9 with no probable cause “or warrant signed by a judge.” Id. at 5. Plaintiff then alleges 10 he was hospitalized with injuries from pepper spray and a sprained wrist before being 11 “booked for felony resisting arrest.” Id. Plaintiff sought “return of [Plaintiff’s] 12 private automobile at no fee as well as dismiss[al of] the felony resisting arrest charge 13 (with no initial charge) with extreme prejudice.” Id. at 4-5. 14 On September 11, 2019, the Court dismissed the Complaint with leave to 15 amend. Dkt. 19. 16 On September 13, 2019, Plaintiff filed the instant FAC. Dkt. 21. The body of 17 the FAC does not contain any factual allegations, but rather refers to Attachments 1, 18 2, 3, 4, and 5. Id. at 12. Attachments 1 and 2 appear to be affidavits purporting to 19 put Defendants on notice of Plaintiff’s complaints regarding the March 29, 2019 20 incident and demanding return of his vehicle. Id. at 14-21. Attachment 3 appears to 21 be a partial vehicle registration application. Id. at 22. Attachment 4 appears to be a 22 declaration of Plaintiff’s wife filed in a case in San Bernardino County Superior Court, 23 Bass v. People of the State of California, No. FSB19001352/MSB18016651. Id. at 24 23-25. Attachment 5 appears to be Plaintiff’s medical records from Arrowhead 25 Regional Medical Center for his March 29, 2019 visit. Id. at 26-30. Plaintiff states: “I 26 know I am entitled to relief,” but does not request any specific relief in the FAC. Id. 27 at 13. 1 III. 2 STANDARD OF REVIEW 3 Where a plaintiff is proceeding in forma pauperis, a court must screen the 4 complaint under 28 U.S.C. § 1915 and is required to dismiss the case at any time if it 5 concludes the action is frivolous or malicious, fails to state a claim on which relief may 6 be granted, or seeks monetary relief against a defendant who is immune from such 7 relief. 28 U.S.C. § 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th 8 Cir. 1998). 9 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 10 “short and plain statement of the claim showing that the pleader is entitled to relief.” 11 Fed. R. Civ. P. 8(a)(2). In determining whether a complaint fails to state a claim for 12 screening purposes, a court applies the same pleading standard as it would when 13 evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See 14 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 15 A complaint may be dismissed for failure to state a claim “where there is no 16 cognizable legal theory or an absence of sufficient facts alleged to support a 17 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 18 considering whether a complaint states a claim, a court must accept as true all of the 19 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 20 2011). However, the court need not accept as true “allegations that are merely 21 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 22 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 23 need not include detailed factual allegations, it “must contain sufficient factual matter, 24 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 25 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 26 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). A claim is facially plausible when it 27 “allows the court to draw the reasonable inference that the defendant is liable for the 1 underlying facts to give fair notice and to enable the opposing party to defend itself 2 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 3 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 4 however inartfully pleaded, must be held to less stringent standards than formal 5 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 6 However, liberal construction should only be afforded to “a plaintiff’s factual 7 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 8 339 (1989), and a court need not accept as true “unreasonable inferences or assume 9 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 10 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 11 If a court finds the complaint should be dismissed for failure to state a claim, 12 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 13 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 14 appears possible the defects in the complaint could be corrected, especially if the 15 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 16 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 17 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 18 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 19 IV. 20 DISCUSSION 21 A. PLAINITFF FAILS TO STATE A CLAIM FOR RELIEF UNDER 18 22 U.S.C. §§ 242 AND 245 23 18 U.S.C. §§ 242 and 245 are criminal statutes that do not provide for a private 24 right of action. Newman v. Caliber Home Loans, Inc., No. 16-CV-2053-JLS (NLS), 25 2018 WL 3361442, at *1 (S.D. Cal. July 10, 2018) (dismissing claims brought under 26 criminal statutes because “as criminal statutes, they do not convey a private right of 27 action”); Cooley v. Keisling, 45 F. Supp. 2d 818, 820 (D. Or. 1999) (dismissing claim 1 in the discretion of the Attorney General of the United States”); Powell v. Kopman, 2 511 F. Supp. 700, 704 (S.D.N.Y. 1981) (dismissing claim under 18 U.S.C. § 242, 3 “which is the criminal analogue to [42 U.S.C.] § 1983,” because “a criminal provision . 4 . . does not create a private right of action”). Accordingly, Plaintiff’s claims under 18 5 U.S.C. §§ 242 and 245 must be dismissed. 6 B. PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER 42 7 U.S.C. § 1985 8 1. Applicable Law 9 42 U.S.C. § 1985(3) (“Section 1985”) “prohibits conspiracies ‘for the purpose 10 of depriving, either directly or indirectly, any person or class of persons of the equal 11 protection of the laws.’” Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). To 12 state a Section 1985 claim, a plaintiff must allege facts showing agreement of the 13 alleged conspirators to deprive him of his rights. Margolis v. Ryan, 140 F.3d 850, 853 14 (9th Cir. 1998). Conclusory allegations of a conspiracy are insufficient to state a valid 15 Section 1985 claim. Id.; see also Iqbal, 556 U.S. at 678. In addition, a plaintiff must 16 demonstrate “a deprivation of a right motivated by some racial, or perhaps otherwise 17 class-based, invidiously discriminatory animus behind the conspirators’ action.” RK 18 Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir. 2002) (citation 19 omitted); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980). 20 2. Analysis 21 Here, the FAC contains no specific facts to support a conspiracy claim. 22 Plaintiff does not “plausibly suggest” Defendants had an agreement to deprive 23 Plaintiff of his rights. Starr, 652 F.3d at 1216. In addition, Plaintiff fails to allege facts 24 demonstrating a conspiracy motivated by “class-based, invidious discriminatory 25 animus.” See RK Ventures, Inc., 307 F.3d at 1056. Accordingly, Plaintiff’s Section 26 1985 claim is subject to dismissal. 27 /// 1 C. PLAINTIFF FAILS TO STATE A SECTION 1983 CLAIM AGAINST 2 DEFENDANTS SAN BERNARDINO POLICE DEPARTMENT 3 AND HAYES TOWING OR DEFENDANTS MCMAHON, CRAIG, 4 AND REVELES IN THEIR OFFICIAL CAPACITY 5 1. Applicable Law 6 A municipality can be liable under Section 1983 “when execution of a 7 government’s policy or custom” inflicts a constitutional injury. Monell v. Dep’t of 8 Soc. Servs. of City of N.Y., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). 9 An “official-capacity suit is, in all respects other than name, to be treated as a suit 10 against the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. 11 Ed. 2d 114 (1985); see also Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 83 12 L. Ed. 2d 878 (1985); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991). Such a 13 suit “is not a suit against the official personally, for the real party in interest is the 14 entity.” Graham, 473 U.S. at 166. 15 To state a cognizable Section 1983 claim against a municipality or local 16 government officer in his or her official capacity, a plaintiff must show the alleged 17 constitutional violation was committed “pursuant to a formal governmental policy or 18 a ‘longstanding practice or custom which constitutes the “standard operating 19 procedure” of the local governmental entity.’” Gillette v. Delmore, 979 F.2d 1342, 20 1346 (9th Cir. 1992). Proof of random acts or isolated events is insufficient to 21 establish a custom or practice. Thompson v. City of L.A., 885 F.2d 1439, 1444 (9th 22 Cir. 1989). Rather, a plaintiff must prove widespread, systematic constitutional 23 violations which have become the force of law. Board of Cty. Comm’rs of Bryan Cty. 24 v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). In addition, a 25 plaintiff must show the policy, practice or custom was “(1) the cause in fact and (2) 26 the proximate cause of the constitutional deprivation.” Trevino v. Gates, 99 F.3d 27 911, 918 (9th Cir. 1996). 1 2. Analysis 2 Here, Plaintiff fails to state a Section 1983 claim against the San Bernardino 3 Police Department, Hayes Towing, or defendants McMahon, Craig, or Reveles in 4 their official capacity1 because Plaintiff fails to allege any widespread, systematic 5 constitutional violations that have become the force of law or formal governmental 6 policy pursuant to which Defendants acted. See Brown, 520 U.S. at 404; Gillette, 979 7 F.2d at 1346. Rather, Plaintiff appears to allege a “random act[] or [an] isolated 8 event[]” in which Plaintiff was forced out of his car at gun point without probable 9 cause and charged with felony resisting arrest. See Thompson, 885 F.2d at 1444. 10 Accordingly, Plaintiff’s Section 1983 claims against the San Bernardino Police 11 Department, Hayes Towing and defendants McMahon, Craig, and Reveles in their 12 official capacity must be dismissed. 13 /// 14 /// 15 /// 16 /// 17 /// 18 1 Courts in this district have also found that “municipal departments are 19 improper defendants in section 1983 suits.” Nichols v. Brown, 859 F. Supp. 2d 1118, 1137 (C.D. Cal. 2012); see also Smith v. Cty. of Los Angeles, No. CV 12-02444-JAK 20 (JEM), 2013 WL 1829821, at *7 (C.D. Cal. Mar. 12, 2013), report and recommendation adopted, No. CV 12-02444-JAK (JEM), 2013 WL 1628609 (C.D. 21 Cal. Apr. 16, 2013) (finding “the term ‘persons’ in [a 1983 action] does not include municipal departments.”). 22 However, the Ninth Circuit has held “both the LASD and the County [of Los 23 Angeles]” can be subject to liability under Section 1983 because “the LASD is a separately suable entity.” Streit v. Cty. of Los Angeles, 236 F.3d 552, 555-56, 566 (9th 24 Cir. 2001); see also Hurth v. Cty. of Los Angeles, No. CV 09-5423-SVW (PJWx), 2009 WL 10696491, at *4 (C.D. Cal. Oct. 28, 2009) (finding “under Ninth Circuit precedent 25 the Sheriff’s Department is a suable ‘person’ under 42 U.S.C. § 1983”). Regardless of whether Plaintiff has named the proper defendant, he has not set 26 forth allegations showing that either the City of San Bernardino, the City of San Bernardino Police Department, or the County of San Bernardino, which is the real 27 party in interest in the suit against defendants McMahon, Craig, and Reveles in their 1 D. PLAINTIFF FAILS TO STATE A CLAIM AGAINST DEFENDANTS 2 HAYES TOWING OR MCMAHON, CRAIG, AND REVELES IN 3 THEIR INDIVIDUAL CAPACITY 4 1. The FAC Fails To Comply With Rule 8 5 a. Applicable Law 6 Under Rule 8, a complaint must contain a “short and plain statement of the 7 claim showing the pleader is entitled to relief,” and “[e]ach allegation must be simple, 8 concise, and direct.” Fed. R. Civ. P. 8(a), (d). A plaintiff must plainly state facts 9 showing individual defendants were directly and personally involved in inflicting the 10 alleged injury. See Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each 11 Government-official defendant, through the official’s own individual actions, has 12 violated the Constitution.”). The required statement under Rule 8 must “‘give the 13 defendant fair notice of what the plaintiff’s claim is and the grounds upon which it 14 rests.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 15 1 (2002) (citation omitted); Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S. 16 Ct. 1627, 161 L. Ed. 2d 577 (2005). “Threadbare recitals of the elements of a cause of 17 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 18 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 19 2d 929 (2007)). In addition, Rule 8 “has been held to be violated by a pleading that 20 was . . . confused, or consisted of incomprehensible rambling.” Cafasso v. Gen. 21 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058-59 (9th Cir. 2011) (discussing cases in 22 which the Ninth Circuit affirmed Rule 8 dismissals). 23 b. Analysis 24 Here, the FAC does not identify which defendants are being sued, for what 25 relief, and for which alleged injuries. First, there are no factual allegations in any of 26 the affidavits attached to the FAC that involve defendant McMahon. Second, the 27 failure to state any specific claims makes it impossible to determine what actions by 1 unclear what relief is sought. Finally, even liberally construed, it is unclear how the 2 allegations involving defendants Craig and Reveles are related to having Plaintiff’s 3 vehicle returned and the charges against him dismissed. While Plaintiff mentions that 4 he was forced out of his car at gunpoint by defendants Craig and Reveles and ended 5 up hospitalized for injuries from pepper spray and a sprained wrist, to the extent the 6 Court can piece together the relief sought from the Attachments to the FAC, the 7 relief sought appears directed towards challenging the criminal charges against 8 Plaintiff for felony resisting arrest and having his car returned. Absent specific, 9 nonconclusory allegations identifying what actions each defendant took against 10 Plaintiff, how such actions violated Plaintiff’s rights, and how Defendants’ alleged 11 actions will be addressed by the remedy sought, the FAC fails to provide Defendants 12 with fair notice of Plaintiff’s claims or the grounds upon which they rest. See Iqbal, 13 556 U.S. at 676; Dura Pharms., Inc., 544 U.S. at 346. Accordingly, the FAC is subject 14 to dismissal for failure to comply with Rule 8. See McHenry v. Renne, 84 F.3d 1172, 15 1177 (9th Cir. 1996) (affirming dismissal of complaint on Rule 8 grounds that is 16 “argumentative, prolix, replete with redundancy, and largely irrelevant”). 17 2. The FAC Appears To Be Barred By Heck and Younger 18 a. Applicable Law 19 Under Heck, a claim that “necessarily implie[s] the invalidity of [a] conviction 20 or sentence [may] not be maintained under § 1983 unless the [plaintiff] proved ‘that 21 the conviction or sentence has been reversed on direct appeal, expunged by executive 22 order, declared invalid by a state tribunal authorized to make such determination[s], or 23 called into question by a federal court’s issuance of a writ of habeas corpus.’” 24 Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002) (quoting Heck v. Humphrey, 512 25 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994)). 26 Alternatively, principles of comity and federalism require federal courts to 27 abstain from interfering with pending state court proceedings. See Younger v. Harris, 1 proceedings). Younger abstention is required if state proceedings (1) are ongoing, (2) 2 implicate important state interests, and (3) provide an adequate opportunity to litigate 3 federal claims. Columbia Basin Apt. Ass’n v. City of Pasco, 268 F.3d 791, 799-801 4 (9th Cir. 2001); Cty. of Alameda’s Agustin v. Cty. of Alameda, 234 F. App’x 521, 522 5 (9th Cir. 2007). 6 b. Analysis 7 To the extent Plaintiff is seeking to challenge his arrest for felony resisting 8 arrest, such claims must be dismissed as premature under Section 1983. If Plaintiff 9 has already been convicted of felony resisting arrest, his claims challenging his 10 conviction are barred by Heck. See Nonnette, 316 F.3d at 875. Alternatively, if the 11 criminal case against Plaintiff is still pending in state court, Younger abstention is 12 required. See Younger, 401 U.S. at 43-45. Accordingly, Plaintiff’s claims seeking to 13 have his automobile returned and the charges against him dismissed are barred and 14 must be dismissed. 15 V. 16 LEAVE TO FILE A SECOND AMENDED COMPLAINT 17 For the foregoing reasons, the FAC is subject to dismissal. As the Court is 18 unable to determine whether amendment would be futile, leave to amend is granted. 19 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). 20 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 21 service date of this Order, Plaintiff choose one of the following options: 22 1. Plaintiff may file a Second Amended Complaint to attempt to cure the 23 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a 24 blank Central District civil rights complaint form to use for filing the Second 25 Amended Complaint, which the Court encourages Plaintiff to use. If Plaintiff 26 chooses to file a Second Amended Complaint, he must clearly designate on the face 27 of the document that it is the “Second Amended Complaint,” it must bear the docket 1 preferably on the court-approved form. Plaintiff shall not include new defendants or 2 allegations that are not reasonably related to the claims asserted in the FAC. In 3 addition, the Second Amended Complaint must be complete without reference to the 4 FAC, Complaint, or any other pleading, attachment, or document. 5 An amended complaint supersedes the preceding complaint. Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 7 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 8 leave to amend as to all his claims raised here, any claim raised in a preceding 9 complaint is waived if it is not raised again in the Second Amended Complaint. 10 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 11 Plaintiff is advised that the Court’s determination herein that the allegations in 12 the FAC are insufficient to state a particular claim should not be seen as dispositive of 13 that claim. Accordingly, while the Court believes Plaintiff has failed to plead 14 sufficient factual matter in his pleading, accepted as true, to state a claim to relief that 15 is viable on its face, Plaintiff is not required to omit any claim in order to pursue this 16 action. However, if Plaintiff asserts a claim in his Second Amended Complaint that 17 has been found to be deficient without addressing the claim’s deficiencies, then the 18 Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the 19 assigned district judge a recommendation that such claim be dismissed with prejudice 20 for failure to state a claim, subject to Plaintiff’s right at that time to file Objections 21 with the district judge as provided in the Local Rules Governing Duties of Magistrate 22 Judges. 23 The Court advises Plaintiff that it generally will not be well-disposed toward 24 another dismissal with leave to amend if Plaintiff files a Second Amended Complaint 25 that continues to include claims on which relief cannot be granted. “[A] district 26 court’s discretion over amendments is especially broad ‘where the court has already 27 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 1 | 1261. Thus, if Plaintiff files a Second Amended Complaint with claims on 2 | which relief cannot be granted, the Second Amended Complaint will be 3 | dismissed without leave to amend and with prejudice. 4 2. Alternatively, Plaintiff may voluntarily dismiss the action without 5 | prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is 6 | directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 7 | encourages Plaintiff to use if he chooses to voluntarily dismiss the action. 8 3. Alternatively, Plaintiff may notify the Court that he intends to stand on 9 | his current FAC by filing a Notice of Intent to Stand on the FAC. If Plaintiff does so, 10 | the Court, pursuant to the provisions of 28 U.S.C. § 636, will submit to the assigned 11 | district judge a recommendation that the FAC be dismissed with prejudice, subject to 12 | Plaintiffs right at that time to file Objections with the district judge as provided in the 13 | Local Rules Governing Duties of Magistrate Judges. 14 Plaintiff is explicitly cautioned that failure to timely respond to this 15 | Order will result in this action being dismissed with prejudice for failure to 16 | state a claim, or for failure to prosecute and/or obey Court orders pursuant to 17 | Federal Rule of Civil Procedure 41(b). 18 19 | Dated: September 19, 2019 A ve 20 HNOKABLEMRERLY KIYA KATO > United States Magist{ate Judge 22 23 24 25 26 27 28