1 2

3

4 5 6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8

9 10 ARLENE R. ATHERTON, Case No. CV 19-8997-CJC (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT

WITH LEAVE TO AMEND

13 SOFITEL HOTELS AND RESORTS,

ET AL.,

14 Defendants. 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Arlene R. Atherton (“Atherton” or “Plaintiff”), proceeding pro se and 20 in forma pauperis, filed a “civil rights” Complaint pursuant to the Americans With 21 Disabilities Act (“ADA”) and 42 U.S.C. § 1983 (“Section 1983”). For the reasons 22 discussed below, the Court dismisses the Complaint with leave to amend. 23 II. 24 ALLEGATIONS IN THE COMPLAINT 25 On October 18, 2019, Atherton filed the Complaint alleging discrimination in 26 violation of the ADA and various violations of her First, Eighth, Ninth, and 27 Fourteenth Amendment rights. ECF Docket No. (“Dkt.”) 1. Although not entirely 1 Manager Acdan Demarert, Sofitel Head of Security Corey Johnson, Sofitel General 2 Manager Eric LeMarie (collectively defendants Demarert, Johnson, and LeMarie are 3 herein referred to as the “Sofitel defendants”), Le Pain Quotient General Manager 4 Josh Brolan, Au Bon Pain server Matthew Burguren, City of Beverly Hills clerk Frank 5 Gonzales, City of Beverly Hills IT Director, and Kaiser Permanente Securitas – Head 6 of Security (collectively, “Defendants”). Id. at 19. Atherton alleges the private and 7 government defendants “cannot be separated as all the actors are intertwined with 8 [the] primary adversary,” Raymond K. Tromba “of IBM,” who does not appear to be 9 a named defendant. Id. at 2, 12. 10 Atherton appears to allege she has at least one ongoing case in the United 11 States Supreme Court involving discrimination against persons with traumatic brain 12 injury disabilities, but the “actions by [D]efendants contribute to impediment, thwart, 13 delay, [and] deter Atherton [from her] legal duties. Using up her money, time, energy, 14 or causing her to relocate to another area to gain the service/product she desires.” Id. 15 at 2. Atherton warns: “Adversary [Mr. Tromba] has IT capability that can enter any 16 computer. Capacity to determine assignment of case for a favorable outcome. 17 Adversary can make this appear on a screen without entering Court database of 18 crossing firewalls.” Id. 19 According to the Complaint, on October 5, 2019 the Sofitel defendants 20 discriminated against Atherton “based on appearance, gender, age, national origin, 21 [and] spiritual belief” by refusing her as a patron for breakfast, thereby creating a 22 “barrier in performance of [her] legal responsibilities” in her federal court cases. Id. at 23 6. Atherton alleges the Sofitel defendants’ refusal to allow her to bring her luggage 24 into the restaurant was designed to “keep Atherton from basic necessities.” Id. 25 On October 7, 2019, Atherton alleges she went to Beverly Hills City Hall to 26 report the incident at Sofitel to the police, but was told City Hall “handle[s] only 27 policy issues.” Id. Atherton goes on to explain the Beverly Hills government website 1 is a “CLONE site. It appears the same but substituted for the original – this is 2 cybercrime.” Id. at 6-7. 3 On October 8, 2019, Atherton alleges she “wanted to find out how to file a 4 ‘protective order’ or ‘retraining order’ to keep Raymond Tromba from continuing his 5 personal assault of [Atherton’s] way of life, [her] career, and [her] federal cases.” Id. at 6 7. Atherton alleges defendant City of Beverly Hills clerk Gonzales “participated in a 7 disinformation campaign” when he directed her to the Beverly Hills Superior 8 Courthouse, which only handles traffic cases. Id. Atherton alleges “[t]his use of 9 server network is NOT in the Local Police protocol for cybercrime. It is only found 10 through corporate security, high level defense US security, or FBI.” Id. For the next 11 two days, Atherton attempted to find out how to file the right documents, but was 12 “met with . . . a disinformation campaign.” Id. at 8. Atherton alleges “Tromba 13 convinces low level employees, immigrants, elderly, vulnerable people to say or direct 14 [her] to the wrong location. He blames it all on bureaucracy or removed from the 15 ‘actor’ and believes he will never be caught. He uses intermediates which is a law 16 enforcement technique. He has used Beverly Hills Police force to threaten and harass 17 [her] to stop work on Federal cases. . . . White Kia continued to follow me through 18 Los Angeles.” Id. 19 On October 12, 2019, Atherton alleges she was refused service at Le Pain 20 Quotient due to her race. Id. 21 On October 15, 2019, Atherton alleges the Securitas guards at Kaiser 22 Permanente refused to let Atherton use the restroom while she was at the medical 23 library with deliberate indifference to her personal safety in violation of the 24 Fourteenth Amendment. Id. at 9. Atherton alleges the “Securitas firm for Kaiser 25 Permanente is the SAME firm used by Raymond Tromba of IBM.” Id. 26 Atherton seeks the sum of $50,000 plus interest from October 2019 to the 27 present. Id. at 4. In addition, while not entirely clear, it appears Atherton is seeking a 1 restraining order against Mr. Tromba to stop him from interfering with her federal 2 lawsuits. Id. at 14. 3 III. 4 STANDARD OF REVIEW 5 As Plaintiff is proceeding in forma pauperis, the Court must screen the 6 Complaint and is required to dismiss the case at any time if it concludes the action is 7 frivolous or malicious, fails to state a claim on which relief may be granted, or seeks 8 monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 9 1915(e)(2)(B); see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 10 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 11 “short and plain statement of the claim showing the pleader is entitled to relief,” and 12 “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(a), (d). In 13 determining whether a complaint fails to state a claim for screening purposes, the 14 Court applies the same pleading standard as it would when evaluating a motion to 15 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 668 16 F.3d 1108, 1112 (9th Cir. 2012). 17 A complaint may be dismissed for failure to state a claim “where there is no 18 cognizable legal theory or an absence of sufficient facts alleged to support a 19 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In 20 considering whether a complaint states a claim, a court must accept as true all of the 21 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 22 2011). However, the court need not accept as true “allegations that are merely 23 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 24 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint 25 need not include detailed factual allegations, it “must contain sufficient factual matter, 26 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 27 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 1 “allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Id. The complaint “must contain sufficient allegations of 3 underlying facts to give fair notice and to enable the opposing party to defend itself 4 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 5 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 6 however inartfully pleaded, must be held to less stringent standards than formal 7 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). 8 However, liberal construction should only be afforded to “a plaintiff’s factual 9 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827, 104 L. Ed. 2d 10 339 (1989), and the Court need not accept as true “unreasonable inferences or assume 11 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 12 Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 13 If the court finds the complaint should be dismissed for failure to state a claim, 14 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 15 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted if it 16 appears possible the defects in the complaint could be corrected, especially if the 17 plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 18 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 19 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 20 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). 21 IV. 22 DISCUSSION 23 A. THE COMPLAINT FAILS TO COMPLY WITH RULE 8 24 1. Applicable Law 25 “[T]he ‘short and plain statement’ [required by Rule 8] must provide the 26 defendant with ‘fair notice of what the plaintiff’s claim is and the grounds upon which 27 it rests.’” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627, 161 L. 1 precisely, issues are not joined, discovery is not controlled, the trial court’s docket 2 becomes unmanageable, the litigants suffer, and society loses confidence in the court’s 3 ability to administer justice.” Bautista v. L.A. Cty., 216 F.3d 837, 841 (9th Cir. 2000). 4 Rule 8 “has been held to be violated by a pleading that was needlessly long, or a 5 complaint that was highly repetitious, or confused, or consisted of incomprehensible 6 rambling.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 7 2011) (citation and internal quotation marks omitted); see McHenry v. Renne, 84 F.3d 8 1172, 1177 (9th Cir. 1996) (affirming the dismissal of a complaint under Rule 8 for 9 being “argumentative, prolix, replete with redundancy, and largely irrelevant”). A 10 complaint may be dismissed for violating Rule 8 even if “a few possible claims” can 11 be identified and the complaint is not “wholly without merit.” Id. at 1179 (stating 12 Rule 8’s requirements apply “to good claims as well as bad”); see also Cafasso, 637 13 F.3d at 1059 (discussing cases in which the Ninth Circuit affirmed Rule 8 dismissals); 14 Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1130-31 (9th Cir. 2008) 15 (same). Likewise, a court may dismiss a claim as factually frivolous when the facts 16 alleged are implausible. Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S. Ct. 1728, 17 118 L. Ed. 2d 340 (1992). 18 2. Analysis 19 Here, the Complaint is replete with repetitive and irrelevant facts and 20 arguments, much of which are incomprehensible. As an initial matter, each page of 21 the Complaint contains the header, “WHO RUNS AMERICA? Is it The President, 22 Elected Congressional Members, & the Judiciary? Or is IT White Collar Crime, 23 Security Guards, and Police/US Security acting under ‘color of law’?” Dkt. 1. Much 24 of the Complaint consists of irrelevant facts and argument. For example, the 25 Complaint has random references and discussions regarding Nisour Square – Iraq, 26 Abu Grab Prison, id. at 9; Atherton’s personal history, id. at 10-11; and Presidents 27 Reagan, Clinton, and Carter, id. at 12. Further, much of the Complaint is simply 1 capability that can enter any computer. Capacity to determine assignment of case for 2 a favorable outcome. Adversary can make this appear on a screen without entering 3 Court database of crossing firewalls.” Id. at 2. Atherton then spends a page 4 explaining how the Beverly Hills government website is a “CLONE site. It appears 5 the same but substituted for the original – this is cybercrime.” Id. at 6-7. 6 The Complaint also includes numerous conclusory allegations using legal 7 jargon and references to case law absent any factual support. For example, Atherton 8 states “America has already lived discrimination in public establishments serving 9 good, beverages, or offering services. Refusal based on appearance, gender, age, 10 national origin, spiritual belief is NOT ALLOWED.” Id. at 6. She then sets forth the 11 following list of cases that are purportedly applicable: 12 Right to Exist. 13 Garner v Louisiana (1961) – “danger to the community” – Trespassing arrests – 14 Reversed 15 Lombard v Louisiana (1963) – “lunch counter” – Trespassing arrests – 16 Reversed 17 Peterson v Greenville (1962) – “lunch counter” – Trespassing arrests – 18 Reversed 19 Bernie V City of Columbia (1964) “lunch counter” – Trespassing arrests - 20 Reversed 21 Id. Atherton does not, however, set forth any factual allegations plausibly showing 22 she was denied service (or arrested) for any of the referenced impermissible reasons. 23 Finally, pages 10 to 15 of the Complaint appear devoted to a separate issue 24 with Mr. Tromba. Atherton sets out her career achievements and then spends two 25 pages describing how Mr. Tromba “single handedly sought to destroy Atherton’s 26 career overseas.” Id. at 12. She alleges “[h]e enrolled his network of technology 27 associates to conduct a disruptive campaign to her life.” Id. In addition, the Court 1 “convinces low level employees, immigrants, elderly, vulnerable people [in Beverly 2 Hills, California] to say or direct [her] to the wrong location” through his IT network 3 manipulation, id. at 8, are factually implausible and “rise to the level of the . . . wholly 4 incredible”. See Denton, 504 U.S. at 32-33. 5 As a result of the Complaint’s lack of clarity and specificity, the Court cannot 6 decipher the nature of Atherton’s claims. Hence, the Complaint does not give 7 Defendants adequate notice of the legal claims being asserted against them, or the 8 factual basis for such claims. See McHenry, 84 F.3d at 1176. Ultimately, unclear 9 pleadings, like the Complaint, that “leav[e] it to the Court to figure out what the full 10 array of [Plaintiff’s] claims is and upon what federal law, and upon what facts, each 11 claim is based,” are subject to dismissal. Little v. Baca, No. CV 13–0373-PA (RZ), 12 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013); see also Clayburn v. Schirmer, No. 13 CIV S-06-2182 ALA (P), 2008 WL 564958, at *3-4 (E.D. Cal. Feb. 28, 2008) (Alarcón, 14 Circuit J., sitting by designation) (dismissing “long, rambling pleading” under Rule 8 15 and noting that “[t]he court (and any defendant) should be able to read and 16 understand Plaintiff’s pleading within minutes”). 17 As such, the Complaint is subject to dismissal for failure to comply with Rule 8. 18 See McHenry, 84 F.3d at 1177. 19 B. THE COMPLAINT FAILS TO STATE A SECTION 1983 CLAIM 20 AGAINST DEFENDANTS DEMARERT, JOHNSON, LEMARIE, 21 BROLAN, BURGUREN, OR KAISER PERMANENTE SECURITAS’ 22 HEAD OF SECURITY 23 1. Applicable Law 24 In order to state a claim for a civil rights violation under Section 1983, a 25 plaintiff must allege that a particular defendant, acting under color of state law, deprived 26 plaintiff of a right guaranteed under the United States Constitution or a federal 27 statute. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. 1 constitute governmental action.” Sutton v. Providence St. Joseph Medical Ctr., 192 2 F.3d 826, 835 (9th Cir. 1999); Price v. State of Hawaii, 939 F.2d 702, 707–08 (9th Cir. 3 1991) (“[P]rivate parties are not generally acting under color of state law[.]”). Thus, 4 private parties cannot generally be held liable under Section 1983. See Monroe v. 5 Pape, 365 U.S. 167, 172, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled in part by 6 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). 7 A private party must be a willful participant in joint action with the State or its agents 8 in order to be sued under Section 1983. See Dennis v. Sparks, 449 U.S. 24, 27-28, 32, 9 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 10 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); United States v. Price, 383 U.S. 787, 11 794, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966)). 12 2. Analysis 13 Here, the Complaint fails to state a Section 1983 claim against defendants 14 Demarert, Johnson, LeMarie, Brolan, Burguren, or Kaiser Permanente Securitas – 15 Head of Security, who are all private persons employed by private companies. 16 Atherton’s allegation that the private and government defendants’ actions are 17 “intertwined with” another private actor, Raymond K. Tromba “of IBM,” dkt. 1 at 2, 18 12, fails to plausibly allege any joint action with the state or its agents. See Dennis, 19 449 U.S. at 27-28. Accordingly, Atherton’s claims against defendants Demarert, 20 Johnson, LeMarie, Brolan, Burguren, or Kaiser Permanente Securitas – Head of 21 Security are subject to dismissal. 22 V. 23 LEAVE TO FILE A FIRST AMENDED COMPLAINT 24 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 25 is unable to determine whether amendment would be futile, leave to amend is granted. 26 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). Plaintiff is 27 advised that the Court’s determination herein that the allegations in the Complaint are 1 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 2 matter in her pleading, accepted as true, to state a claim to relief that is viable on its 3 face, Plaintiff is not required to omit any claim in order to pursue this action. 4 However, if Plaintiff asserts a claim in her First Amended Complaint that has been 5 found to be deficient without addressing the claim’s deficiencies, then the Court, 6 pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned 7 district judge a recommendation that such claim be dismissed with prejudice for 8 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 9 the district judge as provided in the Local Rules Governing Duties of Magistrate 10 Judges. 11 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 12 service date of this Order, Plaintiff choose one of the following two options: 13 1. Plaintiff may file a First Amended Complaint to attempt to cure the 14 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a 15 blank Central District civil rights complaint form to use for filing the First 16 Amended Complaint, which the Court encourages Plaintiff to use. 17 If Plaintiff chooses to file a First Amended Complaint, he must clearly 18 designate on the face of the document that it is the “First Amended Complaint,” it 19 must bear the docket number assigned to this case, and it must be retyped or 20 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 21 include new defendants or allegations that are not reasonably related to the claims 22 asserted in the Complaint. In addition, the First Amended Complaint must be 23 complete without reference to the Complaint, or any other pleading, attachment, or 24 document. 25 An amended complaint supersedes the preceding complaint. Ferdik v. 26 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat 27 all preceding complaints as nonexistent. Id. Because the Court grants Plaintiff 1 complaint is waived if it is not raised again in the First Amended Complaint. 2 Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). 3 The Court advises Plaintiff that it generally will not be well-disposed toward 4 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 5 that continues to include claims on which relief cannot be granted. “[A] district 6 court’s discretion over amendments is especially broad ‘where the court has already 7 given a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cty. 8 of Orange, 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012); see also Ferdik, 963 F.2d at 9 1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 10 relief cannot be granted, the First Amended Complaint will be dismissed 11 without leave to amend and with prejudice. 12 2. Alternatively, Plaintiff may voluntarily dismiss the action without 13 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is 14 directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 15 encourages Plaintiff to use if he chooses to voluntarily dismiss the action. 16 Plaintiff is explicitly cautioned that failure to timely respond to this 17 Order will result in this action being dismissed with prejudice for failure to 18 state a claim, or for failure to prosecute and/or obey Court orders pursuant to 19 Federal Rule of Civil Procedure 41(b). 20 21 Dated: November 25, 2019

22 HONORABLE KENLY KIYA KATO United States Magistrate Judge 23

24 25 26 27