1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DEAN HIMBLER AVILES, ) Case No. CV 20-2621-JGB (JPR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING FIRST AMENDED v. ) COMPLAINT WITH LEAVE TO AMEND 14 ) JASON UR et al., ) 15 ) Defendants. ) 16 ) 17 18 On March 19, 2020, Plaintiff, proceeding pro se, filed a 19 civil-rights action against Defendant Long Beach Police Detective 20 Jason Ur in his individual and official capacities, seeking 21 injunctive and declaratory relief and compensatory and punitive 22 damages. He was subsequently granted leave to proceed in forma 23 pauperis. On April 13, the Court dismissed the Complaint with 24 leave to amend. On May 5, he filed a First Amended Complaint, 25 adding Lynd Jason Allen, Thomas Joseph Smith, and Heather L. 26 Cohen as Defendants. (See FAC at 1.) He now purports to bring a 27 “qui tam” action under the False Claims Act. (Id.) 28 1 1 After screening the FAC under 28 U.S.C. § 1915(e)(2), the 2 Court finds that its allegations fail to state a claim on which 3 relief might be granted. Because its claims might be cured by 4 amendment, the FAC is dismissed with leave to amend. See Lopez 5 v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) 6 (holding that pro se litigant must be given leave to amend 7 complaint unless absolutely clear that deficiencies cannot be 8 cured). If Plaintiff desires to pursue this action, he is 9 ordered to file a second amended complaint within 28 days of the 10 date of this order, remedying the deficiencies discussed below. 11 STANDARD OF REVIEW 12 A complaint may be dismissed as a matter of law for failure 13 to state a claim “where there is no cognizable legal theory or an 14 absence of sufficient facts alleged to support a cognizable legal 15 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 16 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted); 17 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In 18 considering whether a complaint states a claim, a court must 19 generally accept as true all the factual allegations in it. 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown, 21 630 F.3d 889, 892-93 (9th Cir. 2011). The court need not accept 22 as true, however, “allegations that are merely conclusory, 23 unwarranted deductions of fact, or unreasonable inferences.” In 24 re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 25 (citation omitted); see also Shelton v. Chorley, 487 F. App’x 26 388, 389 (9th Cir. 2012) (finding that district court properly 27 dismissed civil-rights claim when plaintiff’s “conclusory 28 allegations” did not support it). 2 1 Although a complaint need not include detailed factual 2 allegations, it “must contain sufficient factual matter, accepted 3 as true, to ‘state a claim to relief that is plausible on its 4 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d 6 859, 863 (9th Cir. 2017). A claim is facially plausible when it 7 “allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 9 at 678. “A document filed pro se is ‘to be liberally construed,’ 10 and ‘a pro se complaint, however inartfully pleaded, must be held 11 to less stringent standards than formal pleadings drafted by 12 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 13 curiam) (citations omitted); Byrd v. Phx. Police Dep’t, 885 F.3d 14 639, 642 (9th Cir. 2018) (per curiam). 15 DISCUSSION 16 The FAC Fails to State a Claim on Which Relief Might Be Granted 17 Plaintiff’s original Complaint raised 42 U.S.C. § 1983 18 claims, among others, against Ur in his individual and official 19 capacities, alleging that he “failed to stop and protect 20 [Plaintiff] from Federal Protective Service Officers using 21 excessive force and injuring [him], causing [him] to have a brain 22 concussion” (Compl. at 2; see id. at 1) and made “false 23 statements” in a police report, resulting in Plaintiff being 24 “falsely imprisoned for 656 days” (id. at 2). He also alleged 25 that Ur was “stalking” him. (Id.) On April 13, 2020, the Court 26 dismissed the Complaint with leave to amend, finding that the 27 official-capacity claims failed because Plaintiff did not 28 identify an “official policy or longstanding [municipal] custom” 3 1 that caused his injuries (Apr. 13, 2020 Dismissal Order at 3-5), 2 and his individual-capacity claims failed because he stated 3 mostly conclusory allegations that did not put Ur on notice of 4 the claims against him (id. at 6-10). Specifically, the Court 5 noted that Plaintiff appeared to be complaining about an 6 incident that resulted in his being taken into federal custody 7 and charged with assaulting a federal officer with a deadly and 8 dangerous weapon, causing bodily injury. (See id. at 7 (citing 9 United States v. Aviles, No. 2:18-CR-00175-CAS-1 (C.D. Cal. Mar. 10 15, 2018)).) Despite correctly alleging that he was acquitted of 11 all charges stemming from that incident, Plaintiff nevertheless 12 failed to allege any facts to support an inference that the force 13 used during it was unreasonable or that Ur lied in his police 14 report about what occurred. (Id.) The Court also explained that 15 to prevail on a § 1983 claim of malicious prosecution or unlawful 16 arrest or detention, Plaintiff had to adequately allege that he 17 was arrested or prosecuted without probable cause, which he had 18 not done. (Id. at 8-9.) 19 Instead of remedying these deficiencies, Plaintiff brings 20 entirely different claims relying on similar conclusory 21 allegations against Ur, repeating them against Allen, Smith, and 22 Cohen. (See FAC at 1-2 (alleging that all four Defendants 23 “assaulted” him and “[f]alsely [a]ccused, . . . [a]rrested and . 24 . . [i]mprisoned [him] for 656 [d]ays”).) Because he has not 25 remedied any of the deficiencies identified in the original 26 dismissal order, the FAC is subject to dismissal for the same 27 reasons as the Complaint. 28 4 1 Asserting that he is raising a “qui tam” action under the 2 False Claims Act does not rescue Plaintiff from having to support 3 his claims with nonconclusory allegations. The FCA imposes civil 4 liability on any person who, among other things, “knowingly 5 presents . . . a false or fraudulent claim for payment or 6 approval” to the federal government. 31 U.S.C. § 3729(a)(1)(A). 7 A private person, called a relator, may bring an FCA action “in 8 the name of the Government,” known as a qui tam action. Id. 9 § 3730(b)(1). But it is well settled that a qui tam action may 10 not be brought by a pro se plaintiff. See Stoner v. Santa Clara 11 Cnty. Off. of Educ., 502 F.3d 1116, 1126–27 (9th Cir. 2007). 12 Thus, Plaintiff’s pro se FCA claims fail at the starting gate. 13 Further, he has not satisfied — or even alleged that he has 14 satisfied — any of the procedural requirements for a qui tam 15 action.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DEAN HIMBLER AVILES, ) Case No. CV 20-2621-JGB (JPR) 12 ) Plaintiff, ) 13 ) ORDER DISMISSING FIRST AMENDED v. ) COMPLAINT WITH LEAVE TO AMEND 14 ) JASON UR et al., ) 15 ) Defendants. ) 16 ) 17 18 On March 19, 2020, Plaintiff, proceeding pro se, filed a 19 civil-rights action against Defendant Long Beach Police Detective 20 Jason Ur in his individual and official capacities, seeking 21 injunctive and declaratory relief and compensatory and punitive 22 damages. He was subsequently granted leave to proceed in forma 23 pauperis. On April 13, the Court dismissed the Complaint with 24 leave to amend. On May 5, he filed a First Amended Complaint, 25 adding Lynd Jason Allen, Thomas Joseph Smith, and Heather L. 26 Cohen as Defendants. (See FAC at 1.) He now purports to bring a 27 “qui tam” action under the False Claims Act. (Id.) 28 1 1 After screening the FAC under 28 U.S.C. § 1915(e)(2), the 2 Court finds that its allegations fail to state a claim on which 3 relief might be granted. Because its claims might be cured by 4 amendment, the FAC is dismissed with leave to amend. See Lopez 5 v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) 6 (holding that pro se litigant must be given leave to amend 7 complaint unless absolutely clear that deficiencies cannot be 8 cured). If Plaintiff desires to pursue this action, he is 9 ordered to file a second amended complaint within 28 days of the 10 date of this order, remedying the deficiencies discussed below. 11 STANDARD OF REVIEW 12 A complaint may be dismissed as a matter of law for failure 13 to state a claim “where there is no cognizable legal theory or an 14 absence of sufficient facts alleged to support a cognizable legal 15 theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 16 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted); 17 accord O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In 18 considering whether a complaint states a claim, a court must 19 generally accept as true all the factual allegations in it. 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown, 21 630 F.3d 889, 892-93 (9th Cir. 2011). The court need not accept 22 as true, however, “allegations that are merely conclusory, 23 unwarranted deductions of fact, or unreasonable inferences.” In 24 re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) 25 (citation omitted); see also Shelton v. Chorley, 487 F. App’x 26 388, 389 (9th Cir. 2012) (finding that district court properly 27 dismissed civil-rights claim when plaintiff’s “conclusory 28 allegations” did not support it). 2 1 Although a complaint need not include detailed factual 2 allegations, it “must contain sufficient factual matter, accepted 3 as true, to ‘state a claim to relief that is plausible on its 4 face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d 6 859, 863 (9th Cir. 2017). A claim is facially plausible when it 7 “allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 9 at 678. “A document filed pro se is ‘to be liberally construed,’ 10 and ‘a pro se complaint, however inartfully pleaded, must be held 11 to less stringent standards than formal pleadings drafted by 12 lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 13 curiam) (citations omitted); Byrd v. Phx. Police Dep’t, 885 F.3d 14 639, 642 (9th Cir. 2018) (per curiam). 15 DISCUSSION 16 The FAC Fails to State a Claim on Which Relief Might Be Granted 17 Plaintiff’s original Complaint raised 42 U.S.C. § 1983 18 claims, among others, against Ur in his individual and official 19 capacities, alleging that he “failed to stop and protect 20 [Plaintiff] from Federal Protective Service Officers using 21 excessive force and injuring [him], causing [him] to have a brain 22 concussion” (Compl. at 2; see id. at 1) and made “false 23 statements” in a police report, resulting in Plaintiff being 24 “falsely imprisoned for 656 days” (id. at 2). He also alleged 25 that Ur was “stalking” him. (Id.) On April 13, 2020, the Court 26 dismissed the Complaint with leave to amend, finding that the 27 official-capacity claims failed because Plaintiff did not 28 identify an “official policy or longstanding [municipal] custom” 3 1 that caused his injuries (Apr. 13, 2020 Dismissal Order at 3-5), 2 and his individual-capacity claims failed because he stated 3 mostly conclusory allegations that did not put Ur on notice of 4 the claims against him (id. at 6-10). Specifically, the Court 5 noted that Plaintiff appeared to be complaining about an 6 incident that resulted in his being taken into federal custody 7 and charged with assaulting a federal officer with a deadly and 8 dangerous weapon, causing bodily injury. (See id. at 7 (citing 9 United States v. Aviles, No. 2:18-CR-00175-CAS-1 (C.D. Cal. Mar. 10 15, 2018)).) Despite correctly alleging that he was acquitted of 11 all charges stemming from that incident, Plaintiff nevertheless 12 failed to allege any facts to support an inference that the force 13 used during it was unreasonable or that Ur lied in his police 14 report about what occurred. (Id.) The Court also explained that 15 to prevail on a § 1983 claim of malicious prosecution or unlawful 16 arrest or detention, Plaintiff had to adequately allege that he 17 was arrested or prosecuted without probable cause, which he had 18 not done. (Id. at 8-9.) 19 Instead of remedying these deficiencies, Plaintiff brings 20 entirely different claims relying on similar conclusory 21 allegations against Ur, repeating them against Allen, Smith, and 22 Cohen. (See FAC at 1-2 (alleging that all four Defendants 23 “assaulted” him and “[f]alsely [a]ccused, . . . [a]rrested and . 24 . . [i]mprisoned [him] for 656 [d]ays”).) Because he has not 25 remedied any of the deficiencies identified in the original 26 dismissal order, the FAC is subject to dismissal for the same 27 reasons as the Complaint. 28 4 1 Asserting that he is raising a “qui tam” action under the 2 False Claims Act does not rescue Plaintiff from having to support 3 his claims with nonconclusory allegations. The FCA imposes civil 4 liability on any person who, among other things, “knowingly 5 presents . . . a false or fraudulent claim for payment or 6 approval” to the federal government. 31 U.S.C. § 3729(a)(1)(A). 7 A private person, called a relator, may bring an FCA action “in 8 the name of the Government,” known as a qui tam action. Id. 9 § 3730(b)(1). But it is well settled that a qui tam action may 10 not be brought by a pro se plaintiff. See Stoner v. Santa Clara 11 Cnty. Off. of Educ., 502 F.3d 1116, 1126–27 (9th Cir. 2007). 12 Thus, Plaintiff’s pro se FCA claims fail at the starting gate. 13 Further, he has not satisfied — or even alleged that he has 14 satisfied — any of the procedural requirements for a qui tam 15 action. For instance, a relator bringing an FCA action must 16 serve “[a] copy of the complaint and written disclosure of 17 substantially all material evidence and information . . . on the 18 Government” and file the complaint “in camera and under seal.” 19 § 3730(b)(2). 20 Finally, even if Plaintiff had followed the procedural 21 requirements, he has not alleged an actionable FCA claim. A qui 22 tam action must allege a fraud committed on the government. 23 § 3729. But Plaintiff has alleged only wrongs committed against 24 him personally. His suggestion that the government incurred 25 tangential costs because of Defendants’ unconstitutional conduct 26 (see FAC at 3) is not well taken given that he does not allege 27 that any of those costs stemmed from false claims for payment 28 that Defendants submitted to the government. See Neville v. 5 1 Cervone, No. 1:12-cv-159-SPM-GRJ., 2012 WL 4208761, at *1 (N.D. 2 Fla. Aug. 3, 2012) (holding that plaintiff did not state FCA 3 claim against defendant — a prosecutor — for pursuing false 4 arrests and prosecutions when he had not alleged that any false 5 claims for payment were submitted to government by defendant), 6 accepted by 2012 WL 4208333 (N.D. Fla. Sept. 19, 2012). 7 Plaintiff’s FCA claims are foreclosed as a matter of law. 8 Because the FAC purports to bring only such claims, it is subject 9 to dismissal without leave to amend. But because Plaintiff 10 originally raised civil-rights claims and still maintains that 11 his civil rights were violated (see FAC at 1-2 (alleging that 12 Defendants violated his constitutional right to be free from 13 unreasonable seizures); id. (alleging that force use against him 14 was unconstitutional)), the Court gives him one more chance to 15 allege those claims sufficiently. 16 ********************* 17 If Plaintiff desires to pursue his civil-rights claims, he 18 is ORDERED to file an amended complaint within 28 days of the 19 date of this order, remedying the deficiencies discussed above 20 and in the order dismissing the original Complaint. The SAC 21 should bear the docket number assigned to this case, be labeled 22 “Second Amended Complaint,” and be complete in and of itself, 23 without reference to his FCA claims or the First Amended 24 Complaint, the original Complaint, or any other pleading. 25 Plaintiff is warned that if he fails to timely file a sufficient 26 27 28 6 1] SAC, the Court may dismiss this action on the grounds set forth 2 || above or for failure to diligently prosecute.’ 3 4|| DATED: June 2, 2020 : □ JESUS BERNAL 5 U.Sf pPISTRICT JUDGE Presented by: ° fon brnitate~ 7 J@an Rosenbluth U.S. Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 1 On April 29, 2020, Plaintiff filed a separate civil-rights 19 |! action against Defendant Cohen, stating factual allegations 20 virtually identical to those made against her here. See Compl. at 2, Aviles v. Cohen, No. 20-cv-3899-JGB (JPR) (C.D. Cal. Apr. 29, 91 || 2020) (alleging that Cohen “failed to stop and protect [him] from Federal Protective Service Officers using excessive force and 22 injuring [him], causing [him] to have a brain concussion,” and “falsel[ly]” accused him in police report, causing him to be 23 “falsely imprisoned for 656 days”). Thus, if Plaintiff amends this 24 action to raise civil-rights claims against Cohen and the other Defendants, his separate action against Cohen would likely be 25 || duplicative and would be subject to dismissal on that basis. See Adams v. Cal. Dep’t of Health Serv., 487 F.3d 684, 688 (9th Cir. 26 || 2007) (citations omitted), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). To the extent Plaintiff amends 27 complaint here to once again raise civil-rights claims, he may 28 wish to voluntarily dismiss his separate complaint against Cohen. See Fed. R. Civ. P. 4l1(a).