1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEWIS EDISON, No. 2:20–cv–1304–KJM–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST; DISMISSING WITH LEAVE TO AMEND; 13 v. AND ORDER TO SHOW CAUSE 14 LOS ANGELES POLICE DEPARTMENT, (ECF No. 2.) 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, has requested leave to proceed 18 in forma pauperis under 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s application in support of his 19 request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. 20 Accordingly, the court grants plaintiff’s request to proceed in forma pauperis. 21 The determination that a plaintiff may proceed in forma pauperis does not complete the 22 required inquiry. Under 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if 23 it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails 24 to state a claim on which relief may be granted, or seeks monetary relief against an immune 25 defendant. 26 /// 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. 28 § 636(b)(1). 1 I. Plaintiff fails to state a claim at screening, and is given leave to amend. 2 Legal Standard 3 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 4 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) dismissal may be based on the 5 lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable 6 legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). In evaluating whether 7 a pleading states sufficient facts on which to base a claim, all well-pled factual allegations are 8 accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be construed 9 in the light most favorable to the non–moving party, Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 10 (9th Cir. 2007). The court is not, however, required to accept as true “conclusory [factual] 11 allegations that are contradicted by documents referred to in the complaint,” or “legal conclusions 12 merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d 13 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal for failure to state a claim, a complaint must 14 contain more than “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the 15 elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). 16 Simply, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to 17 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 18 550 U.S. at 570). Plausibility means pleading “factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 20 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 fn. 7 21 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 22 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 23 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 24 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, leave to 25 amend need not be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 26 /// 27 /// 28 /// 1 Analysis 2 Here, plaintiff’s complaint contains sparse details about his claims. He lists as the sole 3 defendant the “Los Angeles Police Department,” and states the basis for federal jurisdiction is 4 “Title 18 U.S.C. § 242, under color of state law violating my privacy, due process of law, 5 warrants, false imprisonment.” (ECF No. 1 at 2, 4.) For the statement of his claim, plaintiff 6 simply states he “has been followed harassed tortured slandard [sic], privacy invaded, electronic 7 surveillance used to do it. Kept awake awoken assaulted battered in his house and elsewhere.” 8 (Id. at 5.) He prays for $100,000,000 in damages “for rights violation, injury, emotional distress, 9 exemplary tort, harassment, torture.” 10 Plaintiff’s complaint, as stated, borders on frivolity. Generally, private citizens have no 11 authority to raise claims under Title 18 of the U.S. Code. Section 242 concerns “deprivation of 12 rights under color of law,” but provides a private plaintiff no relief. See Garcia v. Cal. Dep't of 13 Forestry And Fire Prot., 385 F. App'x 636, 637 (9th Cir. 2010) (“[T]he criminal statutes and 14 federal regulation plaintiffs cite do not confer a private right of action.”) (citing Aldabe v. Aldabe, 15 616 F.2d 1089, 1092 (9th Cir.1980) (no civil liability under 18 U.S.C. §§ 241 or 242). 16 Construing plaintiff’s complaint liberally, it appears he intends to sue for violations of his rights 17 under the U.S. Constitutional Amendments, including the First (privacy), Fourth (warrants and 18 false imprisonment), and Fourteenth (due process). These claims are to be raised under 42 U.S.C. 19 § 1983. 20 However, plaintiff’s complaint does not remotely allege sufficient facts from which the 21 court can draw a reasonable inference that a constitutional violation of some sort occurred—even 22 construing plaintiff’s claims under Section 1983. Plaintiff states that the L.A.P.D. is surveilling 23 him electronically, has assaulted and battered him, and harassed, tortured, and slandered him. 24 (ECF No. 5.) Without specific facts to support these assertions, they are mere conclusory 25 assertions that cannot be taken as true. Twombly, 550 U.S. at 555-57. In order to state a claim, 26 plaintiff needs to describe each event giving rise to his allegations of rights violations. 27 Further, the only named defendant in plaintiff’s complaint is the L.A.P.D., which is an 28 entity and not an individual officer. It is true that “local-government entities are considered 1 ‘persons’ under Section 1983 and therefore may be liable for causing a constitutional deprivation. 2 See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Long v. Cnty. of L.A., 3
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEWIS EDISON, No. 2:20–cv–1304–KJM–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST; DISMISSING WITH LEAVE TO AMEND; 13 v. AND ORDER TO SHOW CAUSE 14 LOS ANGELES POLICE DEPARTMENT, (ECF No. 2.) 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, has requested leave to proceed 18 in forma pauperis under 28 U.S.C. § 1915.1 (ECF No. 2.) Plaintiff’s application in support of his 19 request to proceed in forma pauperis makes the showing required by 28 U.S.C. § 1915. 20 Accordingly, the court grants plaintiff’s request to proceed in forma pauperis. 21 The determination that a plaintiff may proceed in forma pauperis does not complete the 22 required inquiry. Under 28 U.S.C. § 1915, the court is directed to dismiss the case at any time if 23 it determines that the allegation of poverty is untrue, or if the action is frivolous or malicious, fails 24 to state a claim on which relief may be granted, or seeks monetary relief against an immune 25 defendant. 26 /// 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. 28 § 636(b)(1). 1 I. Plaintiff fails to state a claim at screening, and is given leave to amend. 2 Legal Standard 3 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 4 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) dismissal may be based on the 5 lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable 6 legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). In evaluating whether 7 a pleading states sufficient facts on which to base a claim, all well-pled factual allegations are 8 accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be construed 9 in the light most favorable to the non–moving party, Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 10 (9th Cir. 2007). The court is not, however, required to accept as true “conclusory [factual] 11 allegations that are contradicted by documents referred to in the complaint,” or “legal conclusions 12 merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d 13 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal for failure to state a claim, a complaint must 14 contain more than “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the 15 elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). 16 Simply, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to 17 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 18 550 U.S. at 570). Plausibility means pleading “factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 20 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 fn. 7 21 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 22 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 23 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 24 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, leave to 25 amend need not be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 26 /// 27 /// 28 /// 1 Analysis 2 Here, plaintiff’s complaint contains sparse details about his claims. He lists as the sole 3 defendant the “Los Angeles Police Department,” and states the basis for federal jurisdiction is 4 “Title 18 U.S.C. § 242, under color of state law violating my privacy, due process of law, 5 warrants, false imprisonment.” (ECF No. 1 at 2, 4.) For the statement of his claim, plaintiff 6 simply states he “has been followed harassed tortured slandard [sic], privacy invaded, electronic 7 surveillance used to do it. Kept awake awoken assaulted battered in his house and elsewhere.” 8 (Id. at 5.) He prays for $100,000,000 in damages “for rights violation, injury, emotional distress, 9 exemplary tort, harassment, torture.” 10 Plaintiff’s complaint, as stated, borders on frivolity. Generally, private citizens have no 11 authority to raise claims under Title 18 of the U.S. Code. Section 242 concerns “deprivation of 12 rights under color of law,” but provides a private plaintiff no relief. See Garcia v. Cal. Dep't of 13 Forestry And Fire Prot., 385 F. App'x 636, 637 (9th Cir. 2010) (“[T]he criminal statutes and 14 federal regulation plaintiffs cite do not confer a private right of action.”) (citing Aldabe v. Aldabe, 15 616 F.2d 1089, 1092 (9th Cir.1980) (no civil liability under 18 U.S.C. §§ 241 or 242). 16 Construing plaintiff’s complaint liberally, it appears he intends to sue for violations of his rights 17 under the U.S. Constitutional Amendments, including the First (privacy), Fourth (warrants and 18 false imprisonment), and Fourteenth (due process). These claims are to be raised under 42 U.S.C. 19 § 1983. 20 However, plaintiff’s complaint does not remotely allege sufficient facts from which the 21 court can draw a reasonable inference that a constitutional violation of some sort occurred—even 22 construing plaintiff’s claims under Section 1983. Plaintiff states that the L.A.P.D. is surveilling 23 him electronically, has assaulted and battered him, and harassed, tortured, and slandered him. 24 (ECF No. 5.) Without specific facts to support these assertions, they are mere conclusory 25 assertions that cannot be taken as true. Twombly, 550 U.S. at 555-57. In order to state a claim, 26 plaintiff needs to describe each event giving rise to his allegations of rights violations. 27 Further, the only named defendant in plaintiff’s complaint is the L.A.P.D., which is an 28 entity and not an individual officer. It is true that “local-government entities are considered 1 ‘persons’ under Section 1983 and therefore may be liable for causing a constitutional deprivation. 2 See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Long v. Cnty. of L.A., 3 442 F.3d 1178, 1185 (9th Cir. 2006). It is also true that California police departments are 4 independently suable public entities. See Streit v. Cnty. of L.A., 236 F.3d 552, 565 (9th Cir. 5 2001). However, these entities are only liable “for injuries that arise from an official policy or 6 longstanding custom.” Monell, 436 U.S. at 694; City of Canton v. Harris, 489 U.S. 378, 385-87 7 (1989). To raise a Monell claim, a plaintiff must allege facts in a complaint “that a [municipal] 8 employee committed the alleged constitutional violation pursuant to a formal governmental 9 policy or a longstanding practice or custom which constitutes the standard operating procedure of 10 the local governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (per 11 curiam) (citation omitted). In addition, a plaintiff must allege facts demonstrating that the policy 12 was “(1) the cause in fact and (2) the proximate cause of the constitutional deprivation.” Trevino 13 v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Without a Monell claim, plaintiff must raise his 14 Section 1983 claims against each individual who allegedly acted “under color of state law” to 15 deprive plaintiff of his rights. Plaintiff’s complaint, as written, is devoid of these elements, and 16 so is subject to dismissal. See, e.g., Morrison v. City of Los Angeles, 2019 WL 3017762, at *6 17 (C.D. Cal. July 10, 2019). 18 Leave to Amend 19 Before a court dismisses a complaint with prejudice and orders the case closed, it is to 20 give a plaintiff a chance to amend the pleadings––if it appears at all possible the defects can be 21 corrected. See Lopez, 203 F.3d at 1130-31. This is especially so for pro se plaintiffs. However, 22 if amendment would be futile, leave to amend need not be given. Cahill, 80 F.3d 339. 23 Here, the undersigned is highly skeptical that any amended complaint will be able to cure 24 the above deficiencies. Notably, plaintiff has filed a similarly-styled complaint against the United 25 States Secret Service in 2018. See Edison v. United States Secret Serv., 18-CV-1194 TLN-DB 26 PS, 2018 WL 4944884, at *2 (E.D. Cal. Oct. 11, 2018). Therein, plaintiff alleged law 27 enforcement followed plaintiff “everywhere with space satellites with powerful beams locked on 28 to him,” “hit him while he slept with hammer, awaken him constantly keep him awake threaten 1 insult and slander him in hundreds of rock and roll songs,” and on one occasion “beamed maybe 2 50 people being run over on him they smash their run over faces a hundred people being 3 murdered tortured on him.” Id. The court dismissed this case as frivolous. Id. (report and 4 recommendation adopted, 2019 WL 1095133 (E.D. Cal. Jan. 25, 2019)). 5 Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that 6 plaintiff could allege additional facts to potentially state a 42 U.S.C. § 1983 claim, the court finds 7 it appropriate to grant plaintiff an opportunity to amend the complaint. 8 If plaintiff elects to file an amended complaint, this new pleading shall:
9 i. be captioned “First Amended Complaint”; ii. be limited to 10 pages, legibly written or typed (pages exceeding the page limit will 10 be summarily stricken and will not be considered part of plaintiff’s complaint); iii. use numbered paragraphs; 11 iv. set forth his various claims in separate sections and clearly identify which defendants 12 are allegedly at fault for each claim (e.g., Claim I against Defendants X, Y, and Z, Claim II against Defendants R and S, etc.); 13 v. under each section, list the factual allegations supporting that particular claim; vi. include a general background facts section to orient the reader only as necessary; 14 vii. include his statements for jurisdiction, venue, and relief sought as is necessary; viii. omit exhibits, documents, photos, or other such “evidence” of his claims; 15 ix. refrain from alleging redundant, immaterial, impertinent, or scandalous matters; and 16 x. address any other pleading deficiencies outlined above.
17 This amended complaint shall be filed within 28 days of this order. Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 18 to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 19 complaint be complete in itself without reference to any prior pleading. As a general rule, an 20 amended complaint supersedes the original complaint, and once the amended complaint is filed, 21 the original complaint no longer serves any function in the case. 22 Finally, nothing in this order requires plaintiff to file an amended complaint. If plaintiff 23 determines that he is unable to amend his complaint in compliance with the court’s order at this 24 juncture, he may alternatively file a notice of voluntary dismissal of his claims without prejudice 25 within 28 days of this order. See Federal Rule of Civil Procedure 41(a)(1)(A)(i). 26 /// 27 /// 28 1 II. Plaintiff is ordered to show cause why this action should not be transferred. 2 Should plaintiff be able to state claims under Section 1983 on the terms outlined above, 3 another matter requires the court’s attention. 4 Under 28 U.S.C. § 1404, a district court may transfer any civil action to any other district 5 or division where it might have been brought or to any district or division to which all parties 6 have consented. This is generally done “for the convenience of parties and witnesses, in the 7 interest of justice,” and “to prevent the waste of time, energy, and money and to protect litigants, 8 witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. 9 Barrack, 376 U.S. 612, 616 (1964). Transferring an action requires the court to balance a number 10 of factors, including: (1) the location where the relevant agreements were negotiated and 11 executed; (2) the state that is most familiar with the governing law; (3) the plaintiff’s choice of 12 forum; (4) the respective parties’ contacts with the forum; (5) the forum’s contacts with the 13 plaintiff’s cause of action; (6) the differences in the costs of litigation in the two forums; (7) the 14 availability of compulsory process to compel attendance of unwilling non-party witnesses; (8) the 15 ease of access to sources of proof; (9) the presence of a forum selection clause (which is a 16 “significant factor”); (10) the relevant public policy of the forum state, if any; (11) convenience 17 of the parties; (12) convenience of the witnesses; (13) local interest in the controversy; (14) court 18 congestion of the two forums; and (15) feasibility of consolidating other claims. See Jones v. 19 GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). 20 Here, plaintiff has filed this claim in the Eastern District of California, Sacramento 21 Division, but alleges claims against the Los Angeles Police Department. Under the court’s venue 22 principles, it is highly likely that any claim stated against the L.A.P.D., or any individual officers 23 thereof, should be raised in the Central District of California—in Los Angeles. Thus, should 24 plaintiff choose to amend, he is also ordered to show cause why this action should not be 25 transferred to the Central District of California. Plaintiff’s response to the court’s order regarding 26 transfer shall be filed as a separate memorandum, and shall indicate why the case should remain 27 in the Eastern District. See Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968, 972 (8th Cir. 28 2012) (“There is authority supporting the district court's ability to sua sponte transfer a case under 2 OU VM LOUT ING INIT IN RAUL PIO
1 | § 1404(a)); Singh v. Cissna, 2018 WL 4182602 (E.D. Cal. Aug. 30, 2018) (“However, even 2 || assuming that venue is proper in this district, the Court may sua sponte transfer this case to 3 | another district under 28 U.S.C. § 1404(a), so long as the parties are first given the opportunity to 4 | present their views on the issue.”) (citing Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 5 | If plaintiff amends, the court will first take up whether he has adequately stated facts supporting a 6 | claim, and if so, will then examine whether the action should be transferred under Section 1404. 7 ORDER 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion to proceed in forma pauperis is GRANTED; 10 2. Plaintiff’s complaint is DISMISSED with leave to amend; 11 3. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in 12 accordance with this order, or (b) a notice of voluntary dismissal of the action without 13 prejudice; 14 4. Alongside any amended complaint, plaintiff shall file a brief stating why any action 15 against the LAPD or its officers should not be transferred to the Central District of 16 California; and 17 5. Failure to file either a first amended complaint or a notice of voluntary dismissal by 18 the required deadline may result in the imposition of sanctions, including potential 19 dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b). 20 | Dated: July 14, 2020 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 edis.1304 24 25 26 27 28