1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN LEE FOSTER, No. 2:22-cv-0396-JAM-KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST & GRANTING LEAVE TO AMEND 13 v. (ECF Nos. 1-2) 14 GAVIN NEWSOM, 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards
2 Rule 8(a) requires that a pleading contain “(1) a short and plain statement of the grounds
3 for the court’s jurisdictio n . . . ; (2) a short and plain statement of the claim showing that the
4 pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the
5 alternative or different types of relief.” Each allegation must be simple, concise, and direct.
6 Rule 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other
7 grounds) (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to 8 focus litigation on the merits of a claim.”). 9 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 10 relief can be granted.” Rule 12(b)(6).2 A complaint fails to state a claim if it either lacks a 11 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 12 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 13 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 14 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 15 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 16 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 18 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 19 pleads factual content that allows the court to draw the reasonable inference that the defendant is 20 liable for the misconduct alleged.” Id. 21 When considering whether a complaint states a claim upon which relief can be granted, 22 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 23 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 24 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 25 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 26 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 27
28 2 Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted. 1 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).
2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
3 (9th Cir. 2010) (liberal c o nstruction appropriate even post–Iqbal). Prior to dismissal, the court is
4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it
5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31
6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be
7 given. Cahill v. Liberty Mut. Ins. C o., 80 F.3d 336, 339 (9th Cir. 1996). 8 Analysis 9 Plaintiff’s two-page complaint asserts an unspecified 42 U.S.C § 1983 civil rights claim 10 against Governor Gavin Newsom. (ECF No. 1 at 1.) Plaintiff alleges that, while he was in 11 prison, he sent Governor Newsom a letter notifying him that on a certain date plaintiff would start 12 a hunger strike—apparently to protest his “unconstitutional incarceration.” (Id.; see id. at 3-8, 13 providing copies of letters and “evidence” sent to Newsom.) The governor apparently did not 14 respond, and plaintiff then “starved [him]self” for over three weeks, suffering physical and mental 15 damages as a result. (Id. at 1.) Plaintiff requests $20,000,001 in damages. (Id. at 2.) 16 There are several problems with this complaint which plaintiff must fix if he wishes to 17 move forward with this suit. 18 1. Suing an Immune Defendant 19 The main problem with the complaint is that it appears plaintiff is seeking to sue an 20 immune defendant. The Eleventh Amendment prohibits federal courts from hearing suits brought 21 by private citizens against state governments without the state’s consent. Pennhurst State Sch. & 22 Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State immunity extends to state officials when 23 acting in their official capacity on behalf of the state. See Flint v. Dennison, 488 F.3d 816, 24 824-25 (9th Cir. 2007) (Eleventh Amendment bars § 1983 damages claims against state officials 25 in their official capacity). 26 Governor Newsom is a state official, and it appears plaintiff is suing him for conduct 27 taken in his official capacity in overseeing the state penal system—although it is unclear exactly 28 what conduct plaintiff is challenging.
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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 MARTIN LEE FOSTER, No. 2:22-cv-0396-JAM-KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST & GRANTING LEAVE TO AMEND 13 v. (ECF Nos. 1-2) 14 GAVIN NEWSOM, 15 Defendant. 16 17 Plaintiff, who is proceeding without counsel in this action, requests leave to proceed in 18 forma pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of 19 an action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 Legal Standards
2 Rule 8(a) requires that a pleading contain “(1) a short and plain statement of the grounds
3 for the court’s jurisdictio n . . . ; (2) a short and plain statement of the claim showing that the
4 pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the
5 alternative or different types of relief.” Each allegation must be simple, concise, and direct.
6 Rule 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other
7 grounds) (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to 8 focus litigation on the merits of a claim.”). 9 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which 10 relief can be granted.” Rule 12(b)(6).2 A complaint fails to state a claim if it either lacks a 11 cognizable legal theory or sufficient facts to allege a cognizable legal theory. Mollett v. Netflix, 12 Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). To avoid dismissal for failure to state a claim, a 13 complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic 14 recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 15 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, 16 supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009). Thus, a complaint “must contain sufficient factual matter, accepted as true, to state a 18 claim to relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff 19 pleads factual content that allows the court to draw the reasonable inference that the defendant is 20 liable for the misconduct alleged.” Id. 21 When considering whether a complaint states a claim upon which relief can be granted, 22 the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 23 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan v. 24 Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 25 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 26 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 27
28 2 Citation to the “Rule(s)” are to the Federal Rules of Civil Procedure, unless otherwise noted. 1 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).
2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
3 (9th Cir. 2010) (liberal c o nstruction appropriate even post–Iqbal). Prior to dismissal, the court is
4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it
5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31
6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be
7 given. Cahill v. Liberty Mut. Ins. C o., 80 F.3d 336, 339 (9th Cir. 1996). 8 Analysis 9 Plaintiff’s two-page complaint asserts an unspecified 42 U.S.C § 1983 civil rights claim 10 against Governor Gavin Newsom. (ECF No. 1 at 1.) Plaintiff alleges that, while he was in 11 prison, he sent Governor Newsom a letter notifying him that on a certain date plaintiff would start 12 a hunger strike—apparently to protest his “unconstitutional incarceration.” (Id.; see id. at 3-8, 13 providing copies of letters and “evidence” sent to Newsom.) The governor apparently did not 14 respond, and plaintiff then “starved [him]self” for over three weeks, suffering physical and mental 15 damages as a result. (Id. at 1.) Plaintiff requests $20,000,001 in damages. (Id. at 2.) 16 There are several problems with this complaint which plaintiff must fix if he wishes to 17 move forward with this suit. 18 1. Suing an Immune Defendant 19 The main problem with the complaint is that it appears plaintiff is seeking to sue an 20 immune defendant. The Eleventh Amendment prohibits federal courts from hearing suits brought 21 by private citizens against state governments without the state’s consent. Pennhurst State Sch. & 22 Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State immunity extends to state officials when 23 acting in their official capacity on behalf of the state. See Flint v. Dennison, 488 F.3d 816, 24 824-25 (9th Cir. 2007) (Eleventh Amendment bars § 1983 damages claims against state officials 25 in their official capacity). 26 Governor Newsom is a state official, and it appears plaintiff is suing him for conduct 27 taken in his official capacity in overseeing the state penal system—although it is unclear exactly 28 what conduct plaintiff is challenging. Thus, it appears the governor is immune from this 1 Section 1983 suit for damages. See Comm. to Protect our Agric. Water v. Occidental Oil & Gas
2 Corp., 235 F. Supp. 3d 1132, 1162 (E.D. Cal. 2017) (finding claims for monetary relief against
3 governor and others, in t h eir official capacities, were barred by the Eleventh Amendment).
4 On the other hand, state officials may be sued (A) in their individual capacities for money
5 damages under Section 1983 for causing deprivation of a federal right while acting under color of
6 state law, or (B) in their official capacities for prospective declaratory or injunctive relief, as
7 opposed to money damages. See H afer v. Melo, 502 U.S. 21, 25-26 (1991) (discussing § 1983); 8 Pennhurst, 465 U.S. 104-05 (official-capacity claims for prospective relief). 9 As discussed below, plaintiff fails to sufficiently plead a claim under Section 1983, and at 10 present the complaint seeks only monetary relief. Unless plaintiff can, in good faith, amend his 11 complaint to overcome the immunity bar, the action must be dismissed for lack of jurisdiction. 12 See Comm. to Protect our Agric. Water, 235 F. Supp. 3d at 1159-90 (“Application of Eleventh 13 Amendment immunity subjects a complaint to dismissal for lack of subject matter jurisdiction.”); 14 see also 28 U.S.C. § 1915(e)(2) (requiring dismissal of IFP complaints seeking monetary relief 15 against an immune defendant). 16 2. Failure to State a Claim 17 Further, plaintiff fails to plead the elements of a Section 1983 claim. Section 1983 18 “creates a private right of action against individuals who, acting under color of state law, violate 19 federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 20 2001). To state a claim under Section 1983, a plaintiff must allege (1) that a right secured by the 21 Constitution or laws of the United States was violated, and (2) that the alleged violation was 22 committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 23 (1988). 24 “A person ‘subjects’ another to the deprivation of a constitutional right, within the 25 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts, or 26 omits to perform an act which he is legally required to do that causes the deprivation of which 27 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory 28 allegations concerning the involvement of official personnel in civil rights violations are not 1 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
2 Here, plaintiff totally fails to identify what federal right he believes the governor violated
3 by failing to respond to p l aintiff’s notification that he was starting a hunger strike. Moreover,
4 even assuming a violation occurred, plaintiff fails to allege a causal connection between the
5 governor and the harms plaintiff experienced. See Harper v. City of Los Angeles, 533 F.3d 1010,
6 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff must . . . demonstrate that the defendant’s
7 conduct was the actionable cause o f the claimed injury.”). There is no basis to infer that the 8 governor was legally required to respond to plaintiff’s letters or otherwise intervene to stop his 9 self-imposed hunger strike. Rather, it seems that plaintiff himself was the cause of his “damages 10 related to starvation & malnutrit[ion].” (ECF No. 1 at 1.) 11 Thus, the present complaint is subject to dismissal under 28 U.S.C. § 1915(e)(2) for 12 failure to state a claim on which relief may be granted. However, plaintiff is granted leave to 13 amend to attempt to address these defects. 14 Leave to Amend 15 In light of plaintiff’s self-represented status, and because it is at least conceivable that 16 plaintiff could allege additional facts to potentially state a claim, the court grants plaintiff an 17 opportunity to amend the complaint. See Lopez, 203 F.3d at 1130 (“leave to amend should be 18 granted if it appears at all possible that the plaintiff can correct the defect”) (cleaned up). 19 If plaintiff elects to file an amended complaint, this new pleading shall be captioned as the 20 “First Amended Complaint” and must set forth each of plaintiff’s claims in separate sections 21 clearly identifying which defendant(s) are allegedly at fault for each claim (for example: Claim I 22 against defendants X, Y, and Z; Claim II against defendants R and S, etc.). Each claim must 23 clearly identify what legal cause of action is being asserted; and within each claim, plaintiff must 24 succinctly specify who did what, when the events occurred, and how plaintiff was harmed by the 25 alleged conduct. 26 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 27 to make plaintiff’s first amended complaint complete. Local Rule 220 requires that an amended 28 complaint be complete in itself without reference to any prior pleading. As a general rule, an 1 | amended complaint supersedes the original complaint, and once the first amended complaint is 2 || filed, the original complaint no longer serves any function in the case. 3 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 4 || plaintiff determines that he is unable to amend his complaint in compliance with the court’s order 5 || at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without 6 || prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). 7 ORDER 8 Accordingly, IT IS HEREBY ORDERED that 9 1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is GRANTED; 10 2. Within 30 days of this order, plaintiff shall file either (a) a first amended complaint in 11 accordance with this order, or (b) a notice of voluntary dismissal of the action; and 12 3. Failure to file either a first amended complaint or a notice of voluntary dismissal by this 13 deadline may result in the imposition of sanctions, including potential dismissal of the 14 action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). 15 | ITIS SO ORDERED. 16 || Dated: May 5, 2022 Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 20 fost.0396 21 22 23 24 25 26 27 28