1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK A. APODACA, Case No.: 3:21-cv-01402-RBM-LR
12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT 14 DEPUTY BRYAN WEIMER;
IMPERIAL COUNTY SHERIFF’S 15 DEPT.,
16 Defendants. 17 [Doc. 18] 18 19 On January 12, 2023, Defendants Bryan Weimer (“Defendant Weimer”) and 20 Imperial County Sheriff’s Office (collectively, “Defendants”) filed a Motion to Dismiss 21 Plaintiff’s Second Amended Complaint (“Motion”). (Doc. 18.) Plaintiff Mark A. Apodaca 22 (“Plaintiff”) did not file an opposition. For the reasons discussed below, Defendants’ 23 Motion is GRANTED. 24 I. BACKGROUND 25 Plaintiff filed an initial complaint against Defendants on August 4, 2021. (Doc. 1.) 26 Also on August 4, 2021, Plaintiff filed a Motion to Proceed In Forma Pauperis (Doc. 2) 27 and a Motion to Appoint Counsel (Doc. 3). On January 5, 2022, the Court issued an order 28 (1) granting Plaintiff’s Motion to Proceed In Forma Pauperis, and (2) dismissing Plaintiff’s 1 complaint without prejudice for failing to state a claim upon which relief can be granted 2 pursuant to 28 U.S.C § 1915(e)(2)(B)(ii). (Doc. 4.) In light of this ruling, Plaintiff’s 3 Motion to Appoint Counsel was also denied. (Id. at 3.) Plaintiff filed an amended 4 complaint on January 18, 2022 (“First Amended Complaint”) (Doc. 5), and Defendants 5 subsequently filed a Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 9). On 6 December 7, 20022, the Court issued an order granting Defendants’ Motion to Dismiss 7 Plaintiff’s First Amended Complaint and granting Plaintiff thirty (30) days leave in which 8 to file a second amended complaint, if any. (Doc. 16.) 9 On December 28, 2022, Plaintiff filed a motion titled “Amen[d] O[r]de[r], NOT To 10 Dismiss Case, an Opposition, To Defendan[t]s” (“Second Amended Complaint”), which 11 the Court construes liberally as Plaintiff’s Second Amended Complaint. (Doc. 17); see 12 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (when an 13 action is filed by a pro se litigant, “the court must construe the pleadings liberally and must 14 afford plaintiff the benefit of any doubt”). Defendants subsequently filed the instant 15 Motion on January 12, 2023. (Doc. 18.) In the Motion, Defendants argue Plaintiff’s 16 Second Amended Complaint restates the facts asserted in his prior complaints and “does 17 not give Defendants a fair opportunity to respond as there are no causes of action to respond 18 to.” (Doc. 18–1 at 4.) Thus, Defendants request the Court grant the instant Motion and 19 dismiss Plaintiff’s Second Amended Complaint without leave to amend. (Id.) 20 II. LEGAL STANDARD 21 Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), an action may be 22 dismissed for failure to allege “enough facts to state a claim to relief that is plausible on its 23 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 24 plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged. The 26 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 27 sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 28 (2009) (internal citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the 1 Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings 2 in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine 3 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 4 Moreover, “pro se pleadings must be construed liberally.” Draper v. Rosario, 836 5 F.3d 1072, 1080 (9th Cir. 2016); see also Ross v. Williams, 950 F.3d 1160, 1173 (9th Cir. 6 2020). “A pro se litigant must be given leave to amend his or her complaint unless it is 7 ‘absolutely clear that the deficiencies of the complaint could not be cured by 8 amendment.’” Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987) (quoting Broughton 9 v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)). However, in giving liberal 10 interpretation to a pro se complaint, courts may not “supply essential elements of claims 11 that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 12 268 (9th Cir. 1982). “Vague and conclusory allegations of official participation in civil 13 rights violations are not sufficient to withstand a motion to dismiss.” Id. 14 III. DISCUSSION 15 A. Failure to State a Claim 16 Defendants contend that “Plaintiff’s Second Amended Complaint does not allege 17 any claim upon which relief can be granted.” (Doc. 18–1 at 5.) The Second Amended 18 Complaint “again describes the same incident in which [Plaintiff] claims Deputy Weimer 19 forced [Plaintiff’s] elderly mother into making statements against [Plaintiff] but fails to 20 state any specific cause of action or constitutional right which could apply in this situation.” 21 (Id.) Defendants argue this does not sufficiently detail Plaintiff’s alleged claims or provide 22 Defendants fair notice of the alleged claims being brought against them. (Id. at 5–6.) 23 Moreover, the Civil Cover Sheet attached to the Second Amended Complaint lists “[f]alse 24 arrest due to [f]alse [r]epor[t]” as the brief description of the cause of action. (Id. at 6; see 25 Doc. 17 at 5.) However, “[d]espite this and the three-sentence statement of facts, 26 Defendants have no way of ascertaining what cause of action Plaintiff is asserting or how 27 it applies to his situation.” (Doc. 18–1 at 6.) Therefore, Defendants request the Court grant 28 1 their Motion and dismiss Plaintiff’s Second Amended Complaint without leave to amend. 2 (Id. at 4.) 3 In reviewing the briefing, the Court finds the allegations in Plaintiff’s Second 4 Amended Complaint insufficient to state a claim. See Twombly, 550 U.S. at 570. 5 Plaintiff’s Second Amended Complaint includes a brief statement of facts, consisting of 6 three sentences, which vaguely describe Defendant Weimer receiving false information 7 from a “third party person” who “desire[d] to get [Plaintiff] arrested.” (Doc. 17 at 2.) 8 Plaintiff also alleges Defendant Weimer “used his Sheriff’s uniform to create a fear into 9 [Plaintiff’s] mother[’]s mind, causing [Plaintiff’s] elder[ly] mother into making statements 10 that were inaccurate.” (Id.) Plaintiff explains that these events caused “a rush into 11 [j]udgment without true probable cause.” (Id.) To the extent Plaintiff seeks to raise a claim 12 for false imprisonment, the Court previously advised Plaintiff that his First Amended 13 Complaint “[did] not include sufficient information for the Court to conclude the arrest was 14 unlawful, or that Plaintiff was subject to false imprisonment.” (Doc. 16 at 5.) Plaintiff’s 15 Second Amended Complaint fails to cure the noted deficiencies. 16 Federal Rule of Civil Procedure
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK A. APODACA, Case No.: 3:21-cv-01402-RBM-LR
12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT 14 DEPUTY BRYAN WEIMER;
IMPERIAL COUNTY SHERIFF’S 15 DEPT.,
16 Defendants. 17 [Doc. 18] 18 19 On January 12, 2023, Defendants Bryan Weimer (“Defendant Weimer”) and 20 Imperial County Sheriff’s Office (collectively, “Defendants”) filed a Motion to Dismiss 21 Plaintiff’s Second Amended Complaint (“Motion”). (Doc. 18.) Plaintiff Mark A. Apodaca 22 (“Plaintiff”) did not file an opposition. For the reasons discussed below, Defendants’ 23 Motion is GRANTED. 24 I. BACKGROUND 25 Plaintiff filed an initial complaint against Defendants on August 4, 2021. (Doc. 1.) 26 Also on August 4, 2021, Plaintiff filed a Motion to Proceed In Forma Pauperis (Doc. 2) 27 and a Motion to Appoint Counsel (Doc. 3). On January 5, 2022, the Court issued an order 28 (1) granting Plaintiff’s Motion to Proceed In Forma Pauperis, and (2) dismissing Plaintiff’s 1 complaint without prejudice for failing to state a claim upon which relief can be granted 2 pursuant to 28 U.S.C § 1915(e)(2)(B)(ii). (Doc. 4.) In light of this ruling, Plaintiff’s 3 Motion to Appoint Counsel was also denied. (Id. at 3.) Plaintiff filed an amended 4 complaint on January 18, 2022 (“First Amended Complaint”) (Doc. 5), and Defendants 5 subsequently filed a Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 9). On 6 December 7, 20022, the Court issued an order granting Defendants’ Motion to Dismiss 7 Plaintiff’s First Amended Complaint and granting Plaintiff thirty (30) days leave in which 8 to file a second amended complaint, if any. (Doc. 16.) 9 On December 28, 2022, Plaintiff filed a motion titled “Amen[d] O[r]de[r], NOT To 10 Dismiss Case, an Opposition, To Defendan[t]s” (“Second Amended Complaint”), which 11 the Court construes liberally as Plaintiff’s Second Amended Complaint. (Doc. 17); see 12 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (when an 13 action is filed by a pro se litigant, “the court must construe the pleadings liberally and must 14 afford plaintiff the benefit of any doubt”). Defendants subsequently filed the instant 15 Motion on January 12, 2023. (Doc. 18.) In the Motion, Defendants argue Plaintiff’s 16 Second Amended Complaint restates the facts asserted in his prior complaints and “does 17 not give Defendants a fair opportunity to respond as there are no causes of action to respond 18 to.” (Doc. 18–1 at 4.) Thus, Defendants request the Court grant the instant Motion and 19 dismiss Plaintiff’s Second Amended Complaint without leave to amend. (Id.) 20 II. LEGAL STANDARD 21 Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), an action may be 22 dismissed for failure to allege “enough facts to state a claim to relief that is plausible on its 23 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 24 plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged. The 26 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 27 sheer possibility that a defendant acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 28 (2009) (internal citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the 1 Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings 2 in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine 3 Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 4 Moreover, “pro se pleadings must be construed liberally.” Draper v. Rosario, 836 5 F.3d 1072, 1080 (9th Cir. 2016); see also Ross v. Williams, 950 F.3d 1160, 1173 (9th Cir. 6 2020). “A pro se litigant must be given leave to amend his or her complaint unless it is 7 ‘absolutely clear that the deficiencies of the complaint could not be cured by 8 amendment.’” Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987) (quoting Broughton 9 v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)). However, in giving liberal 10 interpretation to a pro se complaint, courts may not “supply essential elements of claims 11 that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 12 268 (9th Cir. 1982). “Vague and conclusory allegations of official participation in civil 13 rights violations are not sufficient to withstand a motion to dismiss.” Id. 14 III. DISCUSSION 15 A. Failure to State a Claim 16 Defendants contend that “Plaintiff’s Second Amended Complaint does not allege 17 any claim upon which relief can be granted.” (Doc. 18–1 at 5.) The Second Amended 18 Complaint “again describes the same incident in which [Plaintiff] claims Deputy Weimer 19 forced [Plaintiff’s] elderly mother into making statements against [Plaintiff] but fails to 20 state any specific cause of action or constitutional right which could apply in this situation.” 21 (Id.) Defendants argue this does not sufficiently detail Plaintiff’s alleged claims or provide 22 Defendants fair notice of the alleged claims being brought against them. (Id. at 5–6.) 23 Moreover, the Civil Cover Sheet attached to the Second Amended Complaint lists “[f]alse 24 arrest due to [f]alse [r]epor[t]” as the brief description of the cause of action. (Id. at 6; see 25 Doc. 17 at 5.) However, “[d]espite this and the three-sentence statement of facts, 26 Defendants have no way of ascertaining what cause of action Plaintiff is asserting or how 27 it applies to his situation.” (Doc. 18–1 at 6.) Therefore, Defendants request the Court grant 28 1 their Motion and dismiss Plaintiff’s Second Amended Complaint without leave to amend. 2 (Id. at 4.) 3 In reviewing the briefing, the Court finds the allegations in Plaintiff’s Second 4 Amended Complaint insufficient to state a claim. See Twombly, 550 U.S. at 570. 5 Plaintiff’s Second Amended Complaint includes a brief statement of facts, consisting of 6 three sentences, which vaguely describe Defendant Weimer receiving false information 7 from a “third party person” who “desire[d] to get [Plaintiff] arrested.” (Doc. 17 at 2.) 8 Plaintiff also alleges Defendant Weimer “used his Sheriff’s uniform to create a fear into 9 [Plaintiff’s] mother[’]s mind, causing [Plaintiff’s] elder[ly] mother into making statements 10 that were inaccurate.” (Id.) Plaintiff explains that these events caused “a rush into 11 [j]udgment without true probable cause.” (Id.) To the extent Plaintiff seeks to raise a claim 12 for false imprisonment, the Court previously advised Plaintiff that his First Amended 13 Complaint “[did] not include sufficient information for the Court to conclude the arrest was 14 unlawful, or that Plaintiff was subject to false imprisonment.” (Doc. 16 at 5.) Plaintiff’s 15 Second Amended Complaint fails to cure the noted deficiencies. 16 Federal Rule of Civil Procedure 8 provides that “[a] pleading that states a claim for 17 relief must contain . . . a short and plain statement of the claim showing that the pleader is 18 entitled to relief . . . .” FED. R. CIV. P. 8. This provides the defendant “fair notice of what 19 the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 20 41, 47 (1957). Based on the contentions in Plaintiff’s Second Amended Complaint, the 21 Court cannot pinpoint any specific causes of action or the violation of any constitutional 22 right. See Plante v. United States, No. 13-CV-310-IEG KSC, 2013 WL 1882304, at *1 23 (S.D. Cal. May 2, 2013) (“[e]ven as to pro se complaints, ‘unadorned, the-defendant- 24 unlawfully-harmed-me accusation’ will not suffice”); see also Iqbal, 556 U.S. at 678 25 (quoting Twombly, 550 U.S. at 555) (“[a] pleading that offers ‘labels and conclusions’ or 26 ‘a formulaic recitation of the elements of a cause of action will not do’”). Thus, the Court 27 finds Plaintiff’s allegations insufficient to “state a claim to relief that is plausible on its 28 face.” See Twombly, 550 U.S. at 570. 1 B. Leave to Amend 2 Courts will usually allow a pro se plaintiff to amend their complaint in order to 3 attempt to address the pleading deficiencies. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 4 (9th Cir. 2015) (“[a] district court should not dismiss a pro se complaint without leave to 5 amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured 6 by amendment’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). When a 7 plaintiff is pro se, “the court is particularly liberal in construing the complaint in his favor.” 8 Moore v. United States, 193 F.R.D. 647, 651 (N.D. Cal. 2000) (citing Glendora v. 9 Cablevision Systems, Corp., 45 F.3d 36, 37 (2nd Cir.1995)). However, “a court may 10 dismiss a pro se litigant’s complaint without leave to amend if it appears beyond a doubt 11 that the plaintiff can prove no set of facts that would entitle him to relief and this defect 12 cannot be cured by amendment.” Moore, 193 F.R.D. at 651. When determining whether 13 to grant leave to amend, courts generally consider five factors, known as the Foman factors 14 as stated by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182 (1962). These factors 15 include: (1) undue delay; (2) bad faith on the part of the party seeking leave to amend; (3) 16 undue prejudice to the non-moving party; (4) futility of amendment; and (5) whether the 17 plaintiff has previously amended the complaint. Id. 18 The Court previously advised Plaintiff as to the deficiencies in the First Amended 19 Complaint and granted leave to amend the complaint in its December 7, 2022 order. (See 20 Doc. 16.) Now, in reviewing Plaintiff’s Second Amended Complaint, the Court finds 21 Plaintiff has not remedied the pleading deficiencies noted. (See id.; see also Doc. 17.) 22 Plaintiff has failed to plead any factual content which would allow the Court to draw the 23 reasonable inference that Defendants may be held liable for any wrongful conduct. See 24 Iqbal, 556 U.S. at 678. In reviewing the Foman factors, the Court notes the first three 25 factors are do not weigh strongly in favor of either party. However, the Court does find 26 that any amendment would be futile. See Yentz v. Nat’l Credit Adjusters, LLC, No. 3:20- 27 CV-01364-AC, 2021 WL 1277961, at *2 (D. Or. Feb. 15, 2021), report and 28 recommendation adopted, (D. Or. Apr. 6, 2021) (“[a] proposed amendment is futile if the 1 || plaintiff could not allege a set of facts that would constitute a claim or defense”). 2 || Additionally, in examining the final factor, the Court notes this is Plaintiff's third attempt 3 ||to state a claim for relief, and Plaintiff has had sufficient opportunity to amend the 4 deficiencies. (See Docs. 1, 5, 17.) 5 Therefore, the Court dismisses Plaintiff's Second Amended Complaint without 6 leave to amend. See Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) 7 || C‘[b]ecause any amendment would be futile, there was no need to prolong the litigation by 8 permitting further amendment’); Doe v. Fed. Dist. Ct., 467 F. App’x 725, 728 (9th Cir. 9 2012) (finding the district court acted within its discretion in dismissing pro se □□□□□□□□□□□ 10 ||complaint with prejudice and without leave to amend when “the district court had good 11 reason to believe that further amendments would be futile and prejudice the defendants’’). 12 IV. CONCLUSION 13 Based on the foregoing, the Court GRANTS Defendants’ Motion (Doc. 18) and 14 || DISMISSES WITH PREJUDICE Plaintiff's Second Amended Complaint for failure to 15 a claim upon which relief may be granted WITHOUT LEAVE TO AMEND. 16 IT IS SO ORDERED. 17 DATE: March 21, 2023 iE Bera Mortis >. 19 HON.-RUTH BERMUS8EZ MONTENEGRO UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28