1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHAD MICHAEL CREEL, Case No. 2:25-cv-1958-TLN-JDP (PS) 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff Chad Michael Creel, proceeding without counsel, brings this action against 18 California Governor Gavin Newsom and Plump Jack Estate Winery. The complaint fails to state 19 a claim. I will dismiss the complaint with leave to amend and grant plaintiff’s application to 20 proceed in forma pauperis, ECF No. 2, which makes the showing required by 28 U.S.C. 21 §§ 1915(a)(1) and (2). 22 Screening and Pleading Requirements 23 A federal court must screen the complaint of any claimant seeking permission to proceed 24 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 25 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 26 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 27 relief. Id. 28 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 1 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 2 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 3 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 5 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 6 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 7 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 8 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 9 n.2 (9th Cir. 2006) (en banc) (citations omitted). 10 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 11 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 12 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 13 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 14 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 15 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 16 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 17 Analysis 18 Plaintiff’s complaint is largely repetitive and asserts numerous violations of his 19 constitutional rights. See generally ECF No. 1. The complaint references defendant Newsom’s 20 misuse of public funds, unjust enrichment from certain real estate ventures, and different conflicts 21 of interest, but the complaint’s “primary grievance” centers on California’s allegedly 22 unconstitutional firearm and cannabis regulatory schemes. Id. at 8-10. Plaintiff claims that 23 Newsom has enacted and enforced certain firearms regulations, including a Concealed Carry 24 Weapon regulation, which violate the Second Amendment and prohibit plaintiff from being able 25 to protect himself. Id. at 8. Plaintiff also alleges that Newsom’s cannabis regulations violate the 26 Fourteenth Amendment’s Equal Protection Clause because the regulations are selectively 27 enforced and disproportionately harm disabled and low-income Californias. Id. at 9. 28 Plaintiff’s claims against Newsom in his official capacity are barred by the Eleventh 1 Amendment. See Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (“[S]tate officials sued in 2 their official capacities . . . are not ‘persons’ within the meaning of § 1983 and are therefore 3 generally entitled to Eleventh Amendment immunity.”); Hoeg v. Newsom, 728 F. Supp.3d 1152, 4 1157 (E.D. Cal. 2024) (“[D]amages are not available from state officials sued in their official 5 capacity under § 1983”). 6 “On the other hand, an action against a state official sued in his individual, rather than his 7 official or representational, capacity is not barred by the eleventh amendment.” Blaylock v. 8 Schwinden, 862 F.2d 1352, 1353-54 (9th Cir. 1988). However, plaintiff has not alleged that 9 Newsom was personally involved in the violation of his rights or that there was a “sufficient 10 causal connection” between Newsom’s own conduct and the violations at issue. See Starr v. 11 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Plaintiff’s conclusory allegations that Newsom 12 enacted and enforced certain regulations falls short of showing Newsom’s personal involvement 13 or a sufficient causal connection. 14 The allegations against defendant Plump Jack Winery are insufficient to state a claim for 15 violation of plaintiff’s constitutional rights under § 1983 because plaintiff has not alleged that it 16 was acting under color of state law. See 42 U.S.C. § 1983; Soo Park v. Thompson, 851 F.3d 910, 17 921 (9th Cir. 2017). “The traditional definition of acting under color of state law requires that the 18 defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made 19 possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 20 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). 21 Even assuming plaintiff had named proper defendants, his claim for a violation of the 22 Second Amendment fails to state a claim.1 The Supreme Court has instructed that, “[l]ike most 23 rights, the right secured by the Second Amendment is not unlimited.” Dist. of Columbia v. 24 Heller, 554 U.S. 570, 626 (2008). It is “not a right to keep and carry any weapon whatsoever in 25 any manner whatsoever and for whatever purpose.” Id. In line with those principles, the Ninth 26 1 Plaintiff brought a similar claim against a California County in Creel v. Glenn Cnty., No. 27 2:25-cv-1327-DAD-AC (PS). Judge Claire found that plaintiff’s claim was insufficient to state a Second Amendment violation. ECF No. 3 at 4-5. I find no reason to depart from Judge Claire’s 28 analysis. 1 Circuit has held that the Second Amendment does not protect the right of a member of the general 2 public to carry concealed firearms in public. See Peruta v. Cnty. of San Diego, 824 F.3d 919
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHAD MICHAEL CREEL, Case No. 2:25-cv-1958-TLN-JDP (PS) 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff Chad Michael Creel, proceeding without counsel, brings this action against 18 California Governor Gavin Newsom and Plump Jack Estate Winery. The complaint fails to state 19 a claim. I will dismiss the complaint with leave to amend and grant plaintiff’s application to 20 proceed in forma pauperis, ECF No. 2, which makes the showing required by 28 U.S.C. 21 §§ 1915(a)(1) and (2). 22 Screening and Pleading Requirements 23 A federal court must screen the complaint of any claimant seeking permission to proceed 24 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 25 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 26 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 27 relief. Id. 28 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 1 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 2 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 3 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 5 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 6 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 7 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 8 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 9 n.2 (9th Cir. 2006) (en banc) (citations omitted). 10 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 11 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 12 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 13 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 14 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 15 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 16 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 17 Analysis 18 Plaintiff’s complaint is largely repetitive and asserts numerous violations of his 19 constitutional rights. See generally ECF No. 1. The complaint references defendant Newsom’s 20 misuse of public funds, unjust enrichment from certain real estate ventures, and different conflicts 21 of interest, but the complaint’s “primary grievance” centers on California’s allegedly 22 unconstitutional firearm and cannabis regulatory schemes. Id. at 8-10. Plaintiff claims that 23 Newsom has enacted and enforced certain firearms regulations, including a Concealed Carry 24 Weapon regulation, which violate the Second Amendment and prohibit plaintiff from being able 25 to protect himself. Id. at 8. Plaintiff also alleges that Newsom’s cannabis regulations violate the 26 Fourteenth Amendment’s Equal Protection Clause because the regulations are selectively 27 enforced and disproportionately harm disabled and low-income Californias. Id. at 9. 28 Plaintiff’s claims against Newsom in his official capacity are barred by the Eleventh 1 Amendment. See Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (“[S]tate officials sued in 2 their official capacities . . . are not ‘persons’ within the meaning of § 1983 and are therefore 3 generally entitled to Eleventh Amendment immunity.”); Hoeg v. Newsom, 728 F. Supp.3d 1152, 4 1157 (E.D. Cal. 2024) (“[D]amages are not available from state officials sued in their official 5 capacity under § 1983”). 6 “On the other hand, an action against a state official sued in his individual, rather than his 7 official or representational, capacity is not barred by the eleventh amendment.” Blaylock v. 8 Schwinden, 862 F.2d 1352, 1353-54 (9th Cir. 1988). However, plaintiff has not alleged that 9 Newsom was personally involved in the violation of his rights or that there was a “sufficient 10 causal connection” between Newsom’s own conduct and the violations at issue. See Starr v. 11 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Plaintiff’s conclusory allegations that Newsom 12 enacted and enforced certain regulations falls short of showing Newsom’s personal involvement 13 or a sufficient causal connection. 14 The allegations against defendant Plump Jack Winery are insufficient to state a claim for 15 violation of plaintiff’s constitutional rights under § 1983 because plaintiff has not alleged that it 16 was acting under color of state law. See 42 U.S.C. § 1983; Soo Park v. Thompson, 851 F.3d 910, 17 921 (9th Cir. 2017). “The traditional definition of acting under color of state law requires that the 18 defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made 19 possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 20 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). 21 Even assuming plaintiff had named proper defendants, his claim for a violation of the 22 Second Amendment fails to state a claim.1 The Supreme Court has instructed that, “[l]ike most 23 rights, the right secured by the Second Amendment is not unlimited.” Dist. of Columbia v. 24 Heller, 554 U.S. 570, 626 (2008). It is “not a right to keep and carry any weapon whatsoever in 25 any manner whatsoever and for whatever purpose.” Id. In line with those principles, the Ninth 26 1 Plaintiff brought a similar claim against a California County in Creel v. Glenn Cnty., No. 27 2:25-cv-1327-DAD-AC (PS). Judge Claire found that plaintiff’s claim was insufficient to state a Second Amendment violation. ECF No. 3 at 4-5. I find no reason to depart from Judge Claire’s 28 analysis. 1 Circuit has held that the Second Amendment does not protect the right of a member of the general 2 public to carry concealed firearms in public. See Peruta v. Cnty. of San Diego, 824 F.3d 919, 939 3 (9th Cir. 2016), abrogated on other grounds by New York State Rifle & Pistol Ass’n, Inc. v. 4 Bruen, 597 U.S. 1 (2022). Plaintiff’s conclusory allegation that Newsom enacted and enforced 5 gun laws is insufficient to demonstrate a violation of plaintiff’s constitutional rights. 6 Plaintiff’s equal protection claim is equally insufficient to state a claim. The Equal 7 Protection Clause provides “that no State shall deny to any person within its jurisdiction the equal 8 protection of the laws[.]” U.S. Const. Amend. XIV. The Equal Protection Clause requires that 9 persons similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 10 U.S. 432, 439; Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); 11 Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). 12 To state a § 1983 claim based on a violation of the Equal Protection Clause, a plaintiff 13 must allege that defendants acted with intentional discrimination against plaintiff, or against a 14 class of individuals which included plaintiff, and that such conduct did not relate to a legitimate 15 state purpose. Further, plaintiff must allege discriminatory intent. See Washington v. Davis, 426 16 U.S. 229, 239-40 (1976); Serrano v. Francis, 345 F.3d 1071, 1081-82 (9th Cir. 2003). 17 Plaintiff does not allege he is a member of any suspect or protected class, and he fails to 18 allege that any defendant denied plaintiff any rights based on membership in any suspect or 19 protected class. Plaintiff also alleges no discriminatory intent by any named defendant, for 20 example, that any defendant intended to discriminate against him. Plaintiff’s conclusory 21 allegations that he was denied equal protection are insufficient. He also does not allege that he 22 was intentionally treated differently than other similarly situated individuals without a rational 23 relationship to a legitimate state purpose. 24 I will allow plaintiff a chance to amend his complaint before recommending that this 25 action be dismissed. Plaintiff should also take care to add specific factual allegations against each 26 defendant. If plaintiff decides to file an amended complaint, the amended complaint will 27 supersede the current one. See Lacey v. Maricopa Cnty., 693 F.3d 896, 907 n.1 (9th Cir. 2012) 28 (en banc). This means that the amended complaint will need to be complete on its face without 1 | reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 2 | filed, the current one no longer serves any function. Therefore, in an amended complaint, as in 3 | the original, plaintiff will need to assert each claim and allege each defendant’s involvement in 4 | sufficient detail. The amended complaint should be titled “First Amended Complaint” and refer 5 | to the appropriate case number. If plaintiff does not file an amended complaint, I will 6 | recommend that this action be dismissed. 7 Accordingly, it is hereby ORDERED that: 8 1. Plaintiff's motion to proceed in forma pauperis, ECF No. 2, is GRANTED. 9 2. Plaintiffs complaint, ECF No. 1, is DISMISSED with leave to amend. 10 3. Within thirty days from service of this order, plaintiff shall file either (1) an amended 11 | complaint or (2) notice of voluntary dismissal of this action without prejudice. 12 4. Failure to timely file either an amended complaint or notice of voluntary dismissal may 13 } result in the imposition of sanctions, including a recommendation that this action be dismissed 14 | with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 15 5. The Clerk of Court shall send plaintiff a complaint form with this order. 16 7 IT IS SO ORDERED. 18 ( q oy — Dated: _ July 31, 2025 q——— 19 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
21 22 23 24 25 26 27 28