1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

JOSELYN LEE,

7 Case No. 20-cv-01507-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE WHY 9 CASE SHOULD NOT BE DISMISSED

SECRETARY OF STATE OF

10 CALIFORNIA, 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Joselyn Lee, pro se, applied to proceed in forma pauperis and the Court granted 15 her application. See Docket No. 8. The Court now reviews the sufficiency of Lee’s complaint to 16 determine whether it satisfies 28 U.S.C. § 1915(e)(2)(B). Because the complaint does not appear 17 to plausibly state a claim, Lee is ORDERED TO SHOW CAUSE why the complaint should not be 18 dismissed. Lee may file either an amended complaint or a response to this order addressing why 19 her complaint is sufficient, no later than August 28, 2020. 20 II. ALLEGATIONS OF THE COMPLAINT1 21 Lee’s handwritten complaint is entitled “Petition for the Granting of Car Registration 22 Where the Homeless Petitioner Sleeps & Dismissal of Parking Ticket Which was 23 Unconstitutionally and Maliciously Issued.” Complaint at 1. Lee names as the sole defendant the 24 “Secretary of State of California Secretary.” Id. Lee alleges in the Complaint that she received 25 “an ill-willed, dishonestly issued parking ticket.” Id. She claims that this ticket had no payment 26 1 Because the factual allegations of a plaintiff’s complaint are generally taken as true in the context 27 of determining whether the complaint states a claim, this section summarizes Lee’s allegations as 1 or appeal deadline and that it was stolen from her after she finished researching “the law on 2 ‘double parking[,]’” apparently intending to appeal the ticket. Id. She alleges that she tried to 3 track down the parking ticket by going to Traffic Court but no record of it could be found. Id. at 4 1-2. She then went to the Superior Court, where the clerk told her she had no outstanding 5 citations. Id. at 2. 6 Lee asserts that this incident was part of a “pattern of malicious and stolen tickets.” Id. 7 She claims that “this parking ticket was given within a slew of three rapidly successive citations.” 8 Id. at 3. According to Lee, the previous two tickets were “ruled invalid.” Id. While the Complaint 9 is difficult to follow, it appears that Lee also allegedly received citations for: 1) being in a park 10 after hours; and 2) complaining about a bad smell at a public library, leading to a citation that 11 resulted in her inability to use the library and depriving her of internet access. Id. at 2-3. She 12 appears to allege that she already challenged these two tickets, which she had “shown . . . to the 13 judge” and that they have been “ruled legally invalid.” Id. at 2-3. Lee maintains that the third 14 ticket is part of a “pattern of unremitting constitutional violations and civil rights violations.” Id. 15 at 4. She also alleges that it is “[t]he only impediment to [her] being issued” her car registration as 16 she has already passed the smog test and has always paid her vehicle registration fee on time in the 17 past. Id. at 1. 18 As relief, Lee asks the Court to order that the California Secretary of State register her car 19 and dismiss the parking ticket. Id. She notes that getting her car registered is particularly 20 important to her because she is homeless and lives in her vehicle. Id. 21 III. ANALYSIS 22 A. Legal Standards Under 28 U.S.C. § 1915 and Rule 12(b)(6) 23 Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave 24 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 25 (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see 27 Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). 1 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Further, a claim may be 2 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); 3 see also Diaz v. Int’l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 4 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of 5 material fact in the complaint as true and construe[s] them in the light most favorable to the non- 6 moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 7 (9th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as true is 8 inapplicable to legal conclusions [and] mere conclusory statements,” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “do not 10 necessarily assume the truth of legal conclusions merely because they are cast in the form of 11 factual allegations.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (internal 12 quotation marks omitted). The complaint need not contain “detailed factual allegations,” but must 13 allege facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 678 (citing 14 Twombly, 550 U.S. at 570). 15 Where the complaint has been filed by a pro se plaintiff, courts must “construe the 16 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 17 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 18 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 19 amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds 20 by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, 21 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 22 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 23 litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 24 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant 25 will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th 26 Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). 27 B. Lee’s Complaint is Barred By the Eleventh Amendment 1 defendant. Lee does not identify the Secretary of State by name, indicating that she is suing the 2 California Secretary of State in his official capacity. See Kentucky v. Graham, 473 U.S. 159, 165– 3 66 (1985) (explaining that an official-capacity suits . . . “generally represent only another way of 4 pleading an action against an entity of which an officer is an agent.” (quoting Monell v. New York 5 City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978)). “As long as the government entity 6 receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than 7 name, to be treated as a suit against the entity.” Id. (citing Brandon v. Holt, 469 U.S. 464, 471 8 (1985)). Thus, the Court construes Lee’s complaint as an action against the Office of the 9 California Secretary of State, which is a state agency. 10 Under the Eleventh Amendment, states and state agencies have sovereign immunity from 11 suit in federal court. See Welchen v. Cty. of Sacramento & Kamala Harris, No. 16-cv-0185 TLN 12 KJN, 2016 WL 5930563, at *3 (E.D. Cal. Oct. 11, 2016) (“State agencies or departments are 13 protected by Eleventh Amendment Sovereign immunity when named as a defendant.”). However, 14 the Eleventh Amendment “‘does not [ ] bar actions for prospective declaratory or injunctive relief 15 against state officers in their official capacities for their alleged violations of federal law.’” Id. 16 (citing Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1133–34 (9th Cir. 2012) 17 (citing Ex parte Young, 209 U.S. 123, 155–56)). “This is known as the Ex parte Young 18 exception[.]” Id. In order for the Ex Parte Young exception to apply, “[t]he individual state 19 official sued ‘must have some connection with the enforcement of the act . . . that . . . must be 20 fairly direct; a generalized duty to enforce state law or general supervisory power over the persons 21 responsible for enforcing the challenged provision will not subject an official to suit.’” Id. 22 (quoting Coal. to Defend Affirmative Action, 674 F.3d at 1134) (quoting Ex parte Young, 209 U.S. 23 at 157). “Otherwise, suing a state official would be just an indirect way of suing the State.” Id. 24 (citing Ex parte Young, 209 U.S. at 157). 25 Here, Lee has named the California Secretary of State without alleging any facts 26 suggesting that the Secretary of State has a direct connection with the injunctive relief she seeks, 27 namely, the registration of her car and dismissal of her parking ticket. Nor has she pointed to any 1 as currently alleged does not fall under the Ex Parte Young exception and is barred by Eleventh 2 Amendment sovereign immunity.2 3 C. Lee Fails to State a Claim Upon Which Relief Can Be Granted 4 While Lee has not identified any federal statute in support of her Complaint, she refers to 5 “constitutional violations and civil rights violations.” Complaint at 4. The Court construes her 6 complaint as attempting to assert claims for violation of Lee’s constitutional right to due process 7 under the Fourteenth Amendment and 42 U.S.C. § 1983. 8 To state a claim under 42 U.S.C. § 1983, the plaintiff must show that (1) the defendant 9 committed the alleged conduct while acting under color of state law; and (2) the plaintiff was 10 deprived of a constitutional right as a result of the defendant’s conduct. Balistreri v. Pacifica 11 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). Claims for violation of the Fourteenth 12 Amendment’s Due Process Clause can be based on violations of substantive due process or 13 procedural due process. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). The right to 14 substantive due process is aimed at protecting against the arbitrary exercise of government power 15 and a violation occurs only when government conduct “shocks the conscience and violates the 16 decencies of civilized conduct.” Id. at 846. To state a claim based on the denial of procedural 17 due process, Lee must allege that she had a liberty or property interest that was interfered with by 18 the government, and further that the procedures protecting that interest were constitutionally 19 inadequate. See Carver v. Lehman, 558 F.3d 869, 872 (9th Cir. 2009). 20 Lee has failed to state a claim for violation of either substantive due process or procedural 21 2 The doctrine of sovereign immunity has two other exceptions as well: 1) it does not apply where 22 Congress has abrogated that immunity pursuant to its lawmaking powers conferred by the United States Constitution, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000); and 2) a state may 23 waive its Eleventh Amendment immunity by consenting to suit. See College Sav. Bank Florida v. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). As Lee has not pointed to 24 any specific state or federal statute in support of her claims, there is no basis in the Complaint as currently alleged for finding that either of these exceptions applies. The Court notes that Eleventh 25 Amendment sovereign immunity is an affirmative defense and is not a matter of subject matter jurisdiction; therefore, it is governed by Rule 12(b)(6). Steshenko v. Albee, 70 F. Supp. 3d 1002, 26 1008 n. 1 (N.D. Cal. 2014) (“Ninth Circuit cases have held that dismissal based on Eleventh Amendment immunity should be analyzed under Rule 12(b)(6) and not as a jurisdictional issue 27 under Rule 12(b)(1).”) (listing cases). 1 due process. As to the former, she has alleged that the parking ticket that allegedly resulted in 2 denial of her registration was issued “maliciously” but has included no specific factual allegations 3 to support an inference that the ticket was the result of the type of egregious conduct that is 4 necessary to state a claim for violation of substantive due process. Further, cases that have 5 addressed substantive due process claims based on the issuance of parking tickets have generally 6 rejected such claims, finding the allegations were not sufficient to state a claim under the high 7 standard governing claims for substantive due process. See Pimentel v. City of Los Angeles, No. 8 CV 14-1371 FMO (EX), 2015 WL 13763671, at *7 (C.D. Cal. Sept. 29, 2015) (“Given the very 9 high standard described in the preceding paragraphs, a number of courts facing facts similar to 10 those alleged by plaintiffs in this case have found that such allegations are insufficient to state a 11 claim for denial of substantive due process.”) (citing Kelly v. Rice, 375 F.Supp.2d 203, 209 12 (S.D.N.Y. 2005) (“Nothing about the issuance of a parking ticket implicates the rarely-used 13 doctrine of substantive due process.”); Yagman v. Garcetti, 2014 WL 3687279, *3 (C.D. Cal. 14 2014); Peruta v. City of Hartford, 2012 WL 3656366, *10 (D. Conn. 2012) (“It cannot be said that 15 the City’s conduct, in giving Plaintiff a parking ticket for failing to pay, even assuming that the 16 plaintiff did not have actual or constructive notice that he had to pay for parking, was ‘arbitrary,’ 17 ‘malicious,’ or ‘brutal’ in the constitutional sense . . . Nor has Plaintiff alleged that there was any 18 improper motive or a purposeful harm.”)). 19 Similarly, as to procedural due process, Lee has not alleged that the procedures for 20 challenging the parking ticket were inadequate or that these inadequacies resulted in the denial of 21 her registration.3 In particular, although she has alleged some specific facts about her efforts to 22 track down the lost parking ticket and the apparent lack of assistance she received from the clerk’s 23 office at various state courts, she has not included any allegations regarding the procedures for 24 challenging the parking ticket or the denial of her vehicle registration, which is the only basis for 25

26 3 Lee’s claim likely does implicate a liberty or property interest, however, to the extent that she has alleged that she is homeless and lives in her car. See Cox v. Yellowstone Cty., 795 F. Supp. 2d 27 1128, 1136 (D. Mont. 2011) (holding that plaintiff who lost his mobile home as a result of the 1 her due process claim. 2 | 1 CONCLUSION 3 For the reasons discussed above, Lee is ORDERED TO SHOW CAUSE why this case 4 should not be dismissed on the basis of sovereign immunity and because she has not alleged 5 sufficient facts to state a claim for violation of her right to due process under 42 U.S.C. 8 1983. 6 || Lee may respond by filing either an amended complaint that addresses the deficiencies discussed 7 above or a response that addresses why her current complaint is sufficient. Lee’s response shall be 8 filed by August 28, 2020. If Lee does not file a response by that date, the case will be reassigned 9 to a United States district judge with a recommendation that it be dismissed pursuant to 28 U.S.C. 10 || § 1915(e)(2)(B). 11 Any amended complaint must include the caption and civil case number used in this order 12 (19-cv-06894) and the words FIRST AMENDED COMPLAINT on the first page. Because an 5 13 amended complaint completely replaces the previous complaint, any amended complaint may not 14 || incorporate claims or allegations of Lee’s original complaint by reference, but instead must 15 include all of the facts and claims Lee wishes to present and all of the defendants he wishes to sue. 16 Lee, who is not represented by counsel, is encouraged to consult with the Federal Pro Bono 3 17 || Project’s Legal Help Center in either of the Oakland or San Francisco federal courthouses for 18 assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th floor 19 at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in Room 20 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments, which are 21 currently being conducted by telephone or video-conference, can be made by calling (415) 782- 22 8982 or emailing federalprobonoproject @ sfbar.org. Lawyers at the Legal Help Center can 23 provide basic assistance to parties representing themselves but cannot provide legal representation. 24 IT IS SO ORDERED. 25 26 Dated: July 19, 2020 37 c Ae

JOSEPEFC. SPERO

28 Chief Magistrate Judge