Erik Randall Milner v. Dustin Dodd, et al.; Erik Randall Milner v. Napa Emergency Women’s Services (NEWS), et al.

• Court: District Court, N.D. California
• Decided: February 27, 2026
• Docket: 3:25-cv-03350
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERIK RANDALL MILNER, Case Nos. 25-cv-03350-JSC Plaintiff, 25-cv-03428-JSC 8 v. 9 ORDER RE: MOTIONS TO DISMISS 10 DUSTIN DODD, et al., Re: Case No. 25-cv-03350-JSC, Dkt. Nos. Defendants. 11 69, 70, 74, 76; 12 ERIK RANDALL MILNER, Case No. 25-cv-03428-JSC, Dkt. No. 43. Plaintiff, 13 v. 14 NAPA EMERGENCY WOMEN’S SERVICES (NEWS), et al., 15 Defendants. 16

17 18 In two cases, Erik Milner, proceeding in forma pauperis without attorney representation, 19 sues the City of Napa, Napa County, and individual officers for violating his constitutional rights. 20 (Case No. 25-cv-03350-JSC, Dkt. No. 72; Case No. 25-cv-03428-JSC, Dkt. No. 42.)1 Now 21 pending before the Court are Mr. Milner’s motion for leave to file a second amended complaint, 22 (Dkt. No. 69); Defendants’ motion to dismiss or strike Mr. Milner’s second amended complaint in 23 Case No. 25-cv-03428-JSC, (Case No. 25-cv-03428-JSC, Dkt. No. 43); Defendants’ motions to 24 dismiss his amended complaint in Case No. 25-cv-03350-JSC, (Dkt. Nos. 75, 76); and Mr. 25

26 1 Record citations are to material in the Electronic Case File (“ECF”) in Case No. 25-cv-03350- JSC, unless otherwise noted; pinpoint citations are to the ECF-generated page numbers at the top 27 of the documents. Mr. Milner also filed a habeas petition in Case No. 25-cv-06193-JSC, and his 1 Milner’s request for appointment of pro bono counsel, (Dkt. No. 70). Although Mr. Milner did 2 not appear for oral argument on February 26, 2026, the Court has carefully considered the parties’ 3 submissions. The Court now DENIES Mr. Milner’s motion for leave to file a second amended 4 complaint as moot; GRANTS Defendants’ motion to strike Mr. Milner’s second amended 5 complaint in Case No. 25-cv-03428-JSC; and DENIES Mr. Milner’s request for appointment of 6 pro bono counsel. The Court also GRANTS Defendants’ motion to dismiss Mr. Milner’s 7 amended complaint in Case No. 25-cv-03350-JSC because he has not stated facts to plausibly 8 allege any individual defendant violated his Fourth Amendment, Fourteenth Amendment, or First 9 Amendment rights. 10 BACKGROUND 11 I. CASE NO. 25-CV-03350-JSC 12 A. Complaint Allegations 13 On August 31, 2023, while “Plaintiff was in custodial detention at the Napa Police 14 Department,” Police Officer Dustin Dodd “personally ordered a blood draw from Plaintiff without 15 a valid judicial warrant” or Plaintiff’s consent. (Dkt. No. 72 at 3.) When Plaintiff objected and 16 requested a warrant number, Officer Dodd stated “the number will be added later.” (Id.) Police 17 Sergeant Pete Piersig “was present and acting as the supervising officer,” and heard Officer “Dodd 18 admit that no warrant number existed and nevertheless permitted the blood draw to proceed.” (Id.) 19 The same day, Police Officer Nicholas Toscani “seized Plaintiff’s vehicle without a warrant,” but 20 no judicial authorization was obtained until October 9, 2023. (Id.) Officer Toscani “also 21 approved and signed off on video evidence later determined to contain forensic indicators of 22 alteration and reconstruction,” which “was relied upon without disclosure of its altered nature.” 23 (Id.) Officer Dodd, Sergeant Piersig, and Officer Toscani “produced and relied upon altered or 24 reconstructed video evidence while failing to disclose its forensic deficiencies, depriving Plaintiff 25 of a fair opportunity to challenge the evidence.” (Id. at 4.) 26 On October 24, 2023, Police Officer Matthew Lipscomb “assisted Child Welfare Services 27 [(“CWS”)] in removing Plaintiff’s child.” (Id. at 3.) Although prior to removal, Officer Lipscomb 1 the removal without a judicial warrant, court order, or exigent circumstances.” (Id. at 3-4.) CWS 2 Social Worker Martha Jimenez Ramirez “participated in the removal of Plaintiff’s child without 3 judicial authorization and absent any immediate threat of harm.” (Id. at 4.) 4 “Plaintiff filed motions, complaints, and legal challenges regarding Defendants’ conduct. 5 Following this protected activity, Defendants escalated enforcement actions against Plaintiff, 6 including retaliatory warrants and probation actions.” (Id.) 7 B. Procedural History 8 On April 15, 2025, Mr. Milner sued Dustin Dodd, Pete Peirsig, Jose Valasquez, Nick 9 Toscani, Martha Jimenez Ramirez, Aric Bright, Napa Probation, CWS, and Napa Emergency 10 Women’s Services (“NEWS”) for violations of his Eighth Amendment, Fourteenth Amendment, 11 and First Amendment rights under 42 U.S.C. § 1983. (Dkt. No. 1.) CWS, Martha Jimenez 12 Ramirez, and Napa Probation moved to dismiss, and then filed an amended motion also on behalf 13 of Aric Bright. (Dkt. Nos. 14, 22.) The City of Napa, the Napa Police Department, Dustin Dodd, 14 Pete Peirsig, Jose Velasquez, Matthew Lipscomb, and Nick Toscani also moved to dismiss and 15 strike Mr. Milner’s complaint or for a more definite statement. (Dkt. No. 15.) NEWS also filed a 16 motion to dismiss. (Dkt. No. 24.) 17 Because Mr. Milner did not file a response to Defendants’ motion to dismiss, the Court 18 ordered him to show cause why the case should not be dismissed for failure to prosecute. (Dkt. 19 No. 30.) Mr. Milner responded and filed an emergency petition for a writ of habeas corpus, a 20 temporary restraining order, and a preliminary injunction. (Dkt. Nos. 31, 32.) The Court denied 21 Mr. Milner’s habeas petition because it sought release from detention, a form of relief not 22 available in a section 1983 action. (Dkt. No. 42.) And, as Mr. Milner remained incarcerated, the 23 Court extended his time to oppose the motions to dismiss. (Dkt. No. 55.) 24 Instead of filing an opposition, Mr. Milner filed an amended complaint. (Dkt. No. 56.) 25 CWS, Martha Jimenez Ramirez, and the Napa County District Attorney’s Office moved to dismiss 26 or strike Mr. Milner’s complaint. (Dkt. No. 60.) Mr. Milner filed a sur-reply addressing the 27 earlier motions to dismiss. (Dkt. No. 61.) He also sought leave to file an opposition to 1 On December 12, 2025, the Court granted Defendants’ motions to dismiss all of Mr. 2 Milner’s claims with leave to amend except as to his claims against Aric Bright, and granted 3 Defendants’ motion to strike Mr. Milner’s amended complaint. (Dkt. No. 41.) On December 15, 4 2025, Mr. Milner moved for leave to file a second amended complaint, and then on December 31, 5 2025, Mr. Milner filed a first amended complaint. (Dkt. Nos. 69, 72.) In addition, on December 6 18, 2025, Mr. Milner filed a declaration seeking appointment of pro bono counsel, (Dkt. No. 70), 7 which Defendants opposed, (Dkt. No. 74). Defendants now move to dismiss Mr. Milner’s 8 amended complaint. (Dkt. Nos. 75, 76.) 9 II. CASE NO. 25-CV-03428-JSC 10 In a separate case, Mr. Milner sued NEWS, CWS, Napa County Health & Human Services 11 (“HHSA”), Napa Probation, and Martha Jimenez under RICO. (Case No. 25-cv-03428-JSC, Dkt. 12 No. 1.) Defendants moved to dismiss. (Case No. 25-cv-03428-JSC, Dkt. Nos. 25, 30.) As Mr. 13 Milner was incarcerated, the Court twice extended his time to oppose the motions to dismiss. 14 (Case No. 25-cv-03428-JSC, Dkt. Nos. 31, 33.) Instead of opposing the pending motions, Mr. 15 Milner filed an amended complaint, adding Aric Bright, Dustin Dodd, Nicholas Toscani, Matthew 16 Lipscomb, Pete Peirsig, Jose Velasquez, the City of Napa, and the Napa Valley Police Department 17 as defendants, and asserting violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth 18 Amendment rights under 42 U.S.C. § 1983; conspiracy to commit fraud and falsify judicial 19 documents under 18 U.S.C. §§ 1341, 1343, and 1519; RICO claims; and violations of the False 20 Claims Act, 31 U.S.C. § 3729. (Case No. 25-cv-03428-JSC, Dkt. No. 34.) CWS, HHSA, Napa 21 Probation, and Martha Jimenez Ramirez then moved to strike or dismiss Mr. Milner’s amended 22 complaint. (Case No. 25-cv-03428-JSC, Dkt. No. 37.) Mr. Milner did not oppose this motion. 23 The Court granted Defendants’ motion to dismiss with leave to amend. (Dkt. No. 41.) 24 However, because Mr. Milner’s amended complaints in Case. Nos. 25-cv-03428-JSC and Case 25 No. 25-cv-3350-JSC were identical, the Court directed Mr. Milner to “file a single amended 26 complaint in Case No. 25-cv-03350-JSC consistent with this Order,” and stated “Mr. Milner 27 should include all claims and defendants from both his cases that he wishes to pursue in that 1 at 17.) 2 Mr. Milner subsequently filed an amended complaint, which Defendants move to dismiss in 3 light of the Court’s order dismissing his prior complaint. (Case No. 25-cv-03428-JSC, Dkt. Nos. 42, 4 43.) 5 DISCUSSION 6 I. MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT 7 On December 15, 2025, Mr. Milner filed a motion for leave to file a second amended 8 complaint. (Dkt. No. 69.) However, on December 31, 2025, he filed a first amended complaint. 9 (Dkt. No. 72.) So, the Court DENIES his motion for leave to file a second amended complaint as 10 moot in light of his subsequent amended complaint. 11 II. MOTION TO DISMISS OR STRIKE AMENDED COMPLAINT IN CASE NO. 25- CV-03428-JSC 12 After a plaintiff has “amend[ed] its pleading once as a matter of course,” it “may amend its 13 pleading only with the opposing party’s written consent or the court’s leave.” See Fed. R. Civ. P. 14 15(a). “The court should freely give leave when justice so requires.” Id. 15 Mr. Milner has already amended his pleading once following Defendants’ initial motions 16 to dismiss. (Case No. 25-cv-3428, Dkt. Nos. 1, 34.) When the Court granted Defendants’ motions 17 to dismiss Mr. Milner’s amended complaints in Case No. 25-cv-3428 and Case No. 25-cv-3350, 18 which were identical, the Court ordered: 19 Mr. Milner may file a single amended complaint in Case No. 25-cv- 20 03350-JSC consistent with this Order. Mr. Milner should include all claims and defendants from both his cases that he wishes to pursue in 21 that complaint and should not file an amended complaint in Case No. 25-cv-03428-JSC. 22 (Dkt. No. 41 at 17; see also id. at 6 n.3 (noting the complaints were identical).) Nevertheless, Mr. 23 Milner subsequently filed amended complaints in both cases. (Dkt. Nos. 69, 72; Case No. 25-cv- 24 03428-JSC, Dkt. No. 42.) Because Mr. Milner has not obtained “the opposing party’s written 25 consent or the court’s leave,” and because he has leave to file an amended complaint in Case No. 26 25-cv-3350, the Court grants Defendants’ motion to dismiss Mr. Milner’s amended complaint in 27 Case No. 25-cv-03428-JSC. See Strifling v. Twitter Inc., No. 22-CV-07739-JST, 2024 WL 54976, 1 at *1 (N.D. Cal. Jan. 4, 2024) (“[C]ourts in this district consistently strike or dismiss parties and 2 claims that exceed the scope of an order granting leave to amend.” (citations omitted)). 3 III. MOTIONS TO DISMISS MR. MILNER’S AMENDED COMPLAINT 4 A. Legal Standard 5 1. Motion to Dismiss 6 Under Federal Rule of Civil Procedure 8(a)(2), a complaint must include a “short and plain 7 statement of [each] claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 8 While the Rule 8 pleading standard does not require “detailed factual allegations,” “it demands 9 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 10 U.S. 662, 678 (2009) (cleaned up). On a motion to dismiss, the court “must take all of the factual 11 allegations in the complaint as true.” Id. However, this presumption does not apply to 12 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements.” Id. Ultimately, to avoid dismissal, a complaint must “contain sufficient factual 14 matter, accepted as true, to state a claim to relief that is plausible on its face,” in other words, to 15 “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct 16 alleged.” Id. (cleaned up). When a plaintiff files a complaint without representation by a lawyer, 17 the Court must “construe the pleadings liberally and to afford the petitioner the benefit of any 18 doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quotation marks and citation omitted). 19 2. Section 1983 Claims 20 “42 U.S.C. § 1983 creates a cause of action against a person who, acting under color of 21 state law, deprives another of rights guaranteed under the Constitution.” Jones v. Williams, 297 22 F.3d 930, 934 (9th Cir. 2002). “Section 1983 does not create any substantive rights; rather it is the 23 vehicle whereby plaintiffs can challenge actions by government officials.” Id. To state a Section 24 1983 claim, a plaintiff must allege a government official (1) acted “under color of state law,” and 25 (2) “the action resulted in the deprivation of a constitutional right or federal statutory right.” Id. 26 (quotation marks and citation omitted). 27 In addition, “[i]n order for a person acting under color of state law to be liable under 1 Id. Therefore, a plaintiff must allege a specific government official’s actions caused his injuries. 2 See White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990); see also Leer v. Murphy, 844 F.2d 628, 3 633 (9th Cir. 1998) (“The inquiry into causation must be individualized and focus on the duties 4 and responsibilities of each individual defendant whose acts or omissions are alleged to have 5 caused a constitutional deprivation.”). 6 B. Fourth Amendment Unreasonable Search Claim 7 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, 8 houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. 9 “The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely 10 proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citation 11 omitted). 12 Searches pursuant to a warrant issued by a neutral magistrate are presumed to be 13 reasonable, and the warrant is presumed to be valid. See United States v. Leon, 468 U.S. 897, 913- 14 14 (1984); see also Franks v. Delaware, 438 U.S. 154, 171 (1975) (“There is, of course, a 15 presumption of validity with respect to . . . the search warrant.”). So, to state a Fourth 16 Amendment violation for a search based on a warrant, a plaintiff must plausibly allege “the 17 warrants were invalid under the Fourth Amendment.” See United States v. Artis, 919 F.3d 1123, 18 1128 (9th Cir. 2019). To be valid, a search warrant (1) “must be issued by a neutral and detached 19 magistrate,” (2) “be supported by probable cause to believe that the evidence sought will aid in a 20 particular apprehension or conviction for a particular offense,” and (3) “describe the things to be 21 seized and the place to be searched with particularity.” Id. at 1129 (quotation marks and citation 22 omitted); see also U.S. Const. amend. IV (“[N]o Warrants shall issue, but upon probable cause, 23 supported by Oath or affirmation, and particularly describing the place to be searched, and the 24 persons or things to be seized.”). 25 Furthermore, a search without a valid warrant does not violate the Fourth Amendment if 26 the officer had probable cause to search and exigent circumstances justified the search. See Jones 27 v. City of N. Las Vegas, 150 F.4th 1030, 1036 (9th Cir. 2025). “Probable cause exists where the 1 to believe that a suspect would be found in a place.” Id. at 1036 (quotation marks and citations 2 omitted). Exigent circumstances include “the hot pursuit of a fleeing suspect, the need to prevent 3 the imminent destruction of relevant evidence, and the need to prevent the escape of a suspect.” 4 Id. at 1035-36 (quotation marks and citations omitted). 5 Mr. Milner alleges Officer Dodd “violated [his] Fourth Amendment rights by ordering and 6 causing a non-consensual blood draw without a valid warrant or exigent circumstances.” (Dkt. 7 No. 72 at 4.) Mr. Milner contends the warrant was invalid because when he requested a warrant 8 number, Officer Dodd responded “the number will be added later.” (Id. at 3.) However, the mere 9 absence of a warrant number does not make a warrant invalid. Because Mr. Milner has not 10 alleged facts that support a reasonable inference the warrant was not issued by a neutral 11 magistrate, supported by probable cause, or lacked particularity, he has not plausibly alleged the 12 warrant was invalid. See Artis, 919 F.3d at 1129. 13 In addition, even if Mr. Milner had plausibly alleged facts that support a finding the 14 warrant was invalid, he does not allege facts that support an inference Officer Dodd lacked 15 probable cause to draw his blood or allege facts supporting his conclusory allegation there were no 16 exigent circumstances. That Mr. Milner “was in custodial detention” when Officer Dodd drew his 17 blood is insufficient to draw a reasonable inference no exigent circumstances existed. (Dkt. No. 18 72 at 3.) See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449-50 (9th Cir. 1991) (explaining exigent 19 circumstances may apply if “during the time it would take to procure a warrant, the evidence of 20 the defendant’s intoxication would be eliminated from his bloodstream” (citing Schmerber v. 21 California, 384 U.S. 757, 770 (1966))). 22 So, the Court dismisses Mr. Milner’s Fourth Amendment claim against Officer Dodd. 23 C. Fourth Amendment Failure to Intervene Claim 24 “[P]olice officers have a duty to intercede when their fellow officers violate the 25 constitutional rights of a suspect or other citizen.” Cunningham v. Gates, 229 F.3d 1271, 1289 26 (9th Cir. 2000) (quotation marks and citation omitted). However, if there is no underlying 27 constitutional violation, an officer cannot be liable for failing to intervene. See Shepard v. Perez, 1 constitutional violation.”). Furthermore, “officers can be held liable for failing to intercede only if 2 they had an opportunity to intercede.” Cunningham, 229 F.3d at 1289 (citations omitted). 3 Mr. Milner alleges Sergeant Piersig “violated [his] Fourth Amendment rights by 4 knowingly allowing the warrantless blood draw to proceed.” (Dkt. No. 72 at 4.) However, 5 because Mr. Milner has not plausibly alleged Officer Dodd violated his Fourth Amendment rights 6 in drawing his blood, he cannot plausibly allege Sergeant Piersig violated his Fourth Amendment 7 rights by failing to intervene. 8 So, the Court dismisses Mr. Milner’s Fourth Amendment claim against Sergeant Piersig. 9 D. Fourth Amendment Unreasonable Seizure of Vehicle Claim 10 “[T]he existence of probable cause alone justifies a warrantless search or seizure of a 11 vehicle lawfully parked in a public place.” United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 12 1985). “Probable cause exists when, under the totality of the circumstances, there is a fair 13 probability that contraband or evidence of a crime will be found in a particular place.” United 14 States v. Steinman, 159 F.4th 550, 568 (9th Cir. 2025). 15 Mr. Milner alleges Officer Toscani “violated [his] Fourth Amendment rights by seizing 16 [his] vehicle without a warrant” on August 31, 2023, the day he was arrested. (Dkt. No. 72 at 3- 17 5.) However, Plaintiff does not allege Officer Toscani did not have probable cause to seize his 18 vehicle or allege any facts supporting a reasonable inference there was no “fair probability that 19 contraband or evidence of a crime” could be found in the car. See Steinman, 159 F.4th at 568. 20 So, the Court dismisses Mr. Milner’s Fourth Amendment claim against Officer Toscani. 21 E. Fourteenth Amendment Due Process Claim for Evidence Fabrication 22 “[T]here is a clearly established constitutional due process right not to be subject to 23 criminal charges on the basis of false evidence that was deliberately fabricated by the 24 government.” Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105, 1112 (9th Cir. 2018) 25 (quotation marks and citation omitted). A plaintiff can prove deliberateness by “produc[ing] direct 26 evidence of deliberate fabrication,” or by “produc[ing] circumstantial evidence related to a 27 defendant’s motive.” Id. (citations omitted). If a plaintiff alleges fabrication based on 1 [A] plaintiff must: support[] at least one of the following two propositions: (1) [d]efendants continued their investigation . . . despite 2 the fact that they knew or should have known that [the plaintiff] was innocent; or (2) [d]efendants used investigative techniques that were 3 so coercive and abusive that they knew or should have known that those techniques would yield false information. 4 Id. (cleaned up). 5 Mr. Milner alleges Officers Dodd and Toscani “deprived [him] of due process by 6 producing, approving, and relying upon altered or reconstructed video evidence and post-hoc 7 warrant documentation,” and “failing to disclose its forensic deficiencies, depriving [him] of a fair 8 opportunity to challenge the evidence.” (Dkt. No. 72 at 4-5.) Mr. Milner also alleges Officer 9 Toscani “approved and signed off on video evidence later determined to contain forensic 10 indicators of alteration and reconstruction, including Evidence.com booking irregularities and non- 11 native encoding,” and the “evidence was relied upon without disclosure of its altered nature.” (Id. 12 at 3.) Although Mr. Milner alleges Officers Dodd and Toscani “produc[ed], approv[ed], and 13 rel[ied] upon” deficient evidence, he does not allege what evidence was fabricated, how the 14 officers fabricated such evidence, or what criminal charges resulted from the fabricated evidence. 15 He also does not allege either direct or circumstantial facts which would support a reasonable 16 inference Officers Dodd and Toscani fabricated evidence deliberately. So, absent factual 17 allegations, Mr. Milner has not plausibly stated a Fourteenth Amendment claim based on Officer 18 Dodd’s and Officer Toscani’s fabrication of evidence. 19 In addition, Mr. Milner cannot bring a section 1983 claim if it would imply the invalidity 20 of resulting criminal charges. Under Heck v. Humphrey, 512 U.S. 477 (1994), when a plaintiff 21 “seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of 22 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 23 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence 24 has already been invalidated.” Id. at 487. Mr. Milner’s current complaint does not allege what 25 evidence was deliberately fabricated, how it related to a subsequent criminal charge, and whether 26 the criminal charge has been invalidated. However, to the extent Mr. Milner seeks to allege 27 deliberate fabrication of evidence led to his criminal conviction, and the criminal conviction 1 remains valid, Heck prevents him from bringing a section 1983 claim. 2 So, the Court dismisses Mr. Milner’s Fourteenth Amendment fabrication of evidence 3 claim. 4 F. Fourteenth Amendment Familial Association Claims 5 “The Fourteenth Amendment guarantees that parents will not be separated from their 6 children without due process of law except in emergencies.” Rogers v. Cnty. of San Joaquin, 487 7 F.3d 1288, 1294 (9th Cir. 2007) (quotation marks and citation omitted). “Officials violate this 8 right if they remove a child from the home absent information at the time of the seizure that 9 establishes reasonable cause to believe that the child is in imminent danger of serious bodily injury 10 and that the scope of the intrusion is reasonably necessary to avert that specific injury.” Id. 11 (quotation marks and citation omitted). 12 Mr. Milner alleges Ms. Ramirez and Officer Lipscomb violated his Fourteenth 13 Amendment rights by removing or participating in the removal of “[his] child without judicial 14 authorization.” (Dkt. No. 72 at 5.) As to Ms. Ramirez, he alleges she removed his child “absent 15 any immediate threat of harm.” (Id. at 4.) And, as to Officer Lipscomb, he alleges Officer 16 Lipscomb previously “documented that a warrant would be required if the removal was contested” 17 but still “participated in the removal without a judicial warrant, court order, or exigent 18 circumstances.” (Id. at 3-4.) However, Mr. Milner does not allege any facts supporting his 19 conclusory allegations there was no “immediate threat of harm,” and no “judicial warrant, court 20 order, or exigent circumstances.” See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements 21 of a cause of action, supported by mere conclusory statements, do not suffice.”). 22 So, Mr. Milner has not plausibly alleged a Fourteenth Amendment familial association 23 claim against Ms. Ramirez and Officer Lipscomb. 24 G. First Amendment Retaliation Claim 25 “[T]he First Amendment prohibits government officials from subjecting an individual to 26 retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) 27 (quotation marks and citation omitted). A plaintiff must allege an official “acted with a retaliatory 1 have been taken absent the retaliatory motive.” Id. at 398-99. A plaintiff must therefore plead the 2 absence of probable cause or non-retaliatory motives for an official’s actions. See Hartman v. 3 Moore, 547 U.S. 250, 265-66 (2006). 4 Mr. Milner alleges Officers Dodd, Piersig, Toscani, and Lipscomb “took adverse actions 5 against [him] in retaliation for his protected activity of filing legal motions and complaints.” (Dkt. 6 No. 72 at 5.) However, he does not allege each Defendant “acted with a retaliatory motive,” or 7 lacked any probable cause or non-retaliatory motive for their actions. See Nieves, 587 U.S. at 398- 8 99; see also Hartman, 547 U.S. at 265-66. And, although he alleges “Defendants escalated 9 enforcement actions against [him], including retaliatory warrants and probation actions,” he does 10 not identify which Defendant took these actions. See Roper, 901 F.2d at 1505 (holding a plaintiff 11 must allege a specific government official’s actions caused his injuries). 12 So, the Court dismisses Mr. Milner’s First Amendment retaliation claim. 13 H. Monell Claims Against the City of Napa and Napa County 14 “[A] local government may not be sued under § 1983 for an injury inflicted solely by its 15 employees or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts 16 the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. 17 Servs. of City of New York, 436 U.S. 658, 694 (1978). To state a Monell claim, a plaintiff must 18 first show his constitutional rights were violated by an individual defendant who was a local 19 government employee. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person 20 has suffered no constitutional injury at the hands of the individual police officer, the fact that the 21 departmental regulations might have authorized the use of constitutionally excessive force is quite 22 beside the point.”) Because as explained above, Mr. Milner has not alleged any individual officer 23 violated his constitutional rights, he cannot allege a Monell claim against the City of Napa or Napa 24 County. 25 However, a plaintiff must also “establish that the local government had a deliberate policy, 26 custom, or practice that was the moving force behind the constitutional violation [he] suffered.” 27 AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (cleaned up). 1 liability,” but it may be sufficient “where fault and causation were clearly traceable to a 2 municipality’s legislative body or some other authorized decisionmaker.” Benavidez v. Cnty. of 3 San Diego, 993 F.3d 1134, 1154 (9th Cir. 2021) (cleaned up). Although Mr. Milner alleges 4 individual officers violated his constitutional rights, he has not identified a particular Napa County 5 or Napa City policy, custom, or practice and explained how it “was the moving force behind 6 the[se] constitutional violation[s].” Cnty. of Tulare, 666 F.3d at 636. Mr. Milner’s conclusory 7 allegation the violations of his constitutional rights “were caused by municipal policies, customs, 8 and deliberate indifference” are conclusory and therefore insufficient. (Dkt. No. 72 at 5.) See 9 Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice.”). 11 So, the Court dismisses Mr. Milner’s Monell claims against the City of Napa and Napa 12 County. 13 IV. REQUEST FOR APPOINTMENT OF PRO BONO COUNSEL 14 “[T]he appointment of counsel in a civil case is . . . a privilege and not a right.” Gardner v. 15 Madden, 352 F.2d 792, 793 (9th Cir. 1965); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 16 2009) (“Generally, a person has no right to counsel in civil actions.”). The Court “may under 17 ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 18 1915(e)(1).” Palmer, 560 F.3d at 970 (citation omitted). To determine whether “exceptional 19 circumstances” are present, the “court must evaluate the likelihood of success on the merits as well 20 as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal 21 issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (citations omitted). 22 Mr. Milner asserts his “claims are meritorious” and his “case involves complex 23 constitutional claims, including civil rights violations, fraud, and RICO-related allegations, and 24 names more than thirteen defendants, including government agencies, law enforcement officers, 25 prosecutors, and a private nonprofit entity.” (Dkt. No. 70 at 1.) Having considered his pleadings 26 to date, as well as his motion and the factors outlined in Weygandt, Mr. Milner has not yet 27 demonstrated a likelihood of success or that the issues in this case are sufficiently complex, so the 1 The Court therefore denies Mr. Milner’s request without prejudice to his bringing a 2 renewed motion for appointment of pro bono counsel consistent with Local Rules 7-1(a) and 7- 3 2(b). 4 CONCLUSION 5 For the reasons stated above, the Court DENIES Mr. Milner’s motion for leave to file a 6 second amended complaint as moot in light of his subsequent amended complaint and DENIES 7 Mr. Milner’s request for appointment of pro bono counsel without prejudice to his bringing a 8 renewed motion. The Court also GRANTS Defendants’ motion to strike or dismiss Mr. Milner’s 9 amended complaint in Case No. 25-cv-03428-JSC. 10 In addition, the Court GRANTS Defendants’ motion to dismiss Mr. Milner’s amended 11 complaint in Case No. 25-cv-03350-JSC. Because Mr. Milner has already had multiple 12 opportunities to amend his complaint and did not appear at oral argument to explain how even 13 further amendments could cure pleading deficiencies, the Court does not grant Mr. Milner leave to 14 file another amended complaint. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 15 1041 (9th Cir. 2011) (“[A] court may dismiss without leave [to amend] where a plaintiff’s 16 proposed amendments would fail to cure the pleading deficiencies and amendment would be 17 futile.” (citation omitted)); see also Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 18 2002) (“[W]hen a district court has already granted a plaintiff leave to amend, its discretion in 19 deciding subsequent motions to amend is ‘particularly broad.’” (citation omitted)). 20 The Court also GRANTS NEWS’s request for dismissal as a defendant in Case No. 25-cv- 21 03350-JSC and Case No. 25-cv-03428-JSC because it is not named in Mr. Milner’s amended 22 complaint. (Dkt. No. 73.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 23 The Court will therefore enter judgment for Defendants and against Mr. Milner in Case 24 No. 25-cv-03350-JSC and Case No. 25-cv-03428-JSC. 25 Finally, as Mr. Milner is proceeding without counsel, the Court directs his attention to the 26 Handbook for Pro Se Litigants, which is available along with further information for the parties on 27 the Court’s website located at http://cand.uscourts.gov/proselitigants. Mr. Milner may also contact ] assistance regarding his claims. 2 This Order disposes of Docket Nos. 69, 74, and 76 in Case No. 25-cv-03350-JSC, and 3 Docket No. 43 in Case No. 25-cv-03428-JSC. 4 IT IS SO ORDERED. 5 Dated: February 27, 2026 , re 6 JACQUELINE SCOTT CORL 7 United States District Judge 8 9 10 11 a 12

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