1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD GIDDENS, No. 2:19-cv-1263 TLN DB PS 12 Plaintiff, 13 v. 14 XAVIER BECERRA, in his official ORDER capacity as Attorney General of the State of 15 California; and SOLANO COUNTY, 16 Defendants. 17 18 Plaintiff Richard Giddens is proceeding in this action pro se. This matter was referred to 19 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff 20 commenced this action on July 9, 2019, by filing a complaint and paying the required filing fee. 21 (ECF No. 1.) Plaintiff’s complaint alleges, generally, that California Penal Code § 22900 22 prohibits the possession of pepper spray in violation of plaintiff’s rights under the Second 23 Amendment, and that Solano County has repeatedly prosecuted plaintiff in violation of plaintiff’s 24 constitutional rights. 25 On July 30, 2019, defendant Xavier Becerra filed a motion to dismiss. (ECF No. 8.) That 26 same day defendant Solano County also filed a motion to dismiss. (ECF No. 12.) Plaintiff filed 27 oppositions on August 30, 2019. (ECF Nos. 14 & 15.) Defendant Becerra filed a reply on 28 September 10, 2019, and defendant Solano County filed a reply on September 11, 2019. (ECF 1 Nos. 16 & 17.) Plaintiff’s opposition to defendant Solano County’s motion to dismiss states that 2 plaintiff “does wish to Amend parts of the case to clear up any unclear aspects and add real 3 parties for DOES as such is appropriate at this time.” (ECF No. 15 at 8, 10.) 4 Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that “[a] party may amend 5 its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is 6 one to which a responsive pleading is required, 21 days after service of a responsive pleading or 7 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” In this 8 regard, plaintiff could have filed an amended complaint as a matter of course in response to 9 defendants’ motions to dismiss. 10 Nonetheless, “Rule 15(a) is very liberal and leave to amend shall be freely given when 11 justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th 12 Cir. 2006) (quotation omitted); see also Fed. R. Civ. P. 15(a) (“The court should freely give leave 13 when justice so requires.”). However, courts “need not grant leave to amend where the 14 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 15 delay in the litigation; or (4) is futile.” Id. The “court’s discretion to deny leave to amend is 16 particularly broad where the court has already given the plaintiff an opportunity to amend his 17 complaint.” Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 18 1432, 1438 (9th Cir. 1986). 19 Here, the undersigned cannot yet find that granting plaintiff leave to amend would 20 prejudice the opposing parties, is sought in bad faith; would produce an undue delay, or would be 21 futile. Therefore, and in light of plaintiff’s pro se status, the undersigned will construe plaintiff’s 22 filing as a request for leave to amend and grant that request. 23 However, in drafting an amended complaint plaintiff should be cognizant of the issues 24 raised by defendants’ motions to dismiss. Specifically, plaintiff’s opposition to defendant 25 Becerra’s motion to dismiss acknowledges that plaintiff is currently being criminally prosecuted 26 for, among other things, unlawful “possession of pepper spray[.]” (Pl.’s Opp.’n (ECF No. 14) at 27 5.) 28 //// 1 The Younger abstention doctrine generally forbids federal courts from interfering with 2 ongoing state judicial proceedings. See Younger v. Harris, 401 U.S. 37, 53-54 (1971); Kenneally 3 v. Lungren, 967 F.2d 329, 331 (9th Cir. 1992). “Younger abstention is appropriate only when the 4 state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement actions or involve a state’s 5 interest in enforcing the orders and judgments of its courts, (3) implicate an important state 6 interest, and (4) allow litigants to raise federal challenges.” ReadyLink Healthcare, Inc. v. State 7 Compensation Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). “If these four threshold elements are 8 established, we then consider a fifth prong: (5) ‘whether the federal action would have the 9 practical effect of enjoining the state proceedings and whether an exception to Younger applies.’” 10 Rynearson v. Ferguson, 903 F.3d 920, 924-25 (9th Cir. 2018) (quoting ReadyLink, 754 F.3d at 11 759)). 12 With respect to defendant Solano County, plaintiff is advised that “[i]n Monell v. 13 Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality 14 may not be held liable for a § 1983 violation under a theory of respondeat superior for the actions 15 of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In 16 this regard, “[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a 17 policy, practice, or custom of the entity can be shown to be a moving force behind a violation of 18 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 19 Monell, 436 U.S. at 694). 20 In order to allege a viable Monell claim against Solano County plaintiff “must 21 demonstrate that an ‘official policy, custom, or pattern’ on the part of [the defendant] was ‘the 22 actionable cause of the claimed injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th 23 Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There 24 are three ways a “policy” can be established. See Clouthier v. County of Contra Costa, 591 F.3d 25 1232, 1249-50 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d at 1070. 26 “First, a local government may be held liable ‘when implementation of its official 27 policies or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 28 436 U.S. at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government 1 is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to 2 implement procedural safeguards to prevent constitutional violations” or fails to adequately train 3 its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir.
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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 RICHARD GIDDENS, No. 2:19-cv-1263 TLN DB PS 12 Plaintiff, 13 v. 14 XAVIER BECERRA, in his official ORDER capacity as Attorney General of the State of 15 California; and SOLANO COUNTY, 16 Defendants. 17 18 Plaintiff Richard Giddens is proceeding in this action pro se. This matter was referred to 19 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff 20 commenced this action on July 9, 2019, by filing a complaint and paying the required filing fee. 21 (ECF No. 1.) Plaintiff’s complaint alleges, generally, that California Penal Code § 22900 22 prohibits the possession of pepper spray in violation of plaintiff’s rights under the Second 23 Amendment, and that Solano County has repeatedly prosecuted plaintiff in violation of plaintiff’s 24 constitutional rights. 25 On July 30, 2019, defendant Xavier Becerra filed a motion to dismiss. (ECF No. 8.) That 26 same day defendant Solano County also filed a motion to dismiss. (ECF No. 12.) Plaintiff filed 27 oppositions on August 30, 2019. (ECF Nos. 14 & 15.) Defendant Becerra filed a reply on 28 September 10, 2019, and defendant Solano County filed a reply on September 11, 2019. (ECF 1 Nos. 16 & 17.) Plaintiff’s opposition to defendant Solano County’s motion to dismiss states that 2 plaintiff “does wish to Amend parts of the case to clear up any unclear aspects and add real 3 parties for DOES as such is appropriate at this time.” (ECF No. 15 at 8, 10.) 4 Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that “[a] party may amend 5 its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is 6 one to which a responsive pleading is required, 21 days after service of a responsive pleading or 7 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” In this 8 regard, plaintiff could have filed an amended complaint as a matter of course in response to 9 defendants’ motions to dismiss. 10 Nonetheless, “Rule 15(a) is very liberal and leave to amend shall be freely given when 11 justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th 12 Cir. 2006) (quotation omitted); see also Fed. R. Civ. P. 15(a) (“The court should freely give leave 13 when justice so requires.”). However, courts “need not grant leave to amend where the 14 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 15 delay in the litigation; or (4) is futile.” Id. The “court’s discretion to deny leave to amend is 16 particularly broad where the court has already given the plaintiff an opportunity to amend his 17 complaint.” Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 18 1432, 1438 (9th Cir. 1986). 19 Here, the undersigned cannot yet find that granting plaintiff leave to amend would 20 prejudice the opposing parties, is sought in bad faith; would produce an undue delay, or would be 21 futile. Therefore, and in light of plaintiff’s pro se status, the undersigned will construe plaintiff’s 22 filing as a request for leave to amend and grant that request. 23 However, in drafting an amended complaint plaintiff should be cognizant of the issues 24 raised by defendants’ motions to dismiss. Specifically, plaintiff’s opposition to defendant 25 Becerra’s motion to dismiss acknowledges that plaintiff is currently being criminally prosecuted 26 for, among other things, unlawful “possession of pepper spray[.]” (Pl.’s Opp.’n (ECF No. 14) at 27 5.) 28 //// 1 The Younger abstention doctrine generally forbids federal courts from interfering with 2 ongoing state judicial proceedings. See Younger v. Harris, 401 U.S. 37, 53-54 (1971); Kenneally 3 v. Lungren, 967 F.2d 329, 331 (9th Cir. 1992). “Younger abstention is appropriate only when the 4 state proceedings: (1) are ongoing, (2) are quasi-criminal enforcement actions or involve a state’s 5 interest in enforcing the orders and judgments of its courts, (3) implicate an important state 6 interest, and (4) allow litigants to raise federal challenges.” ReadyLink Healthcare, Inc. v. State 7 Compensation Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014). “If these four threshold elements are 8 established, we then consider a fifth prong: (5) ‘whether the federal action would have the 9 practical effect of enjoining the state proceedings and whether an exception to Younger applies.’” 10 Rynearson v. Ferguson, 903 F.3d 920, 924-25 (9th Cir. 2018) (quoting ReadyLink, 754 F.3d at 11 759)). 12 With respect to defendant Solano County, plaintiff is advised that “[i]n Monell v. 13 Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality 14 may not be held liable for a § 1983 violation under a theory of respondeat superior for the actions 15 of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In 16 this regard, “[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a 17 policy, practice, or custom of the entity can be shown to be a moving force behind a violation of 18 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 19 Monell, 436 U.S. at 694). 20 In order to allege a viable Monell claim against Solano County plaintiff “must 21 demonstrate that an ‘official policy, custom, or pattern’ on the part of [the defendant] was ‘the 22 actionable cause of the claimed injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th 23 Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There 24 are three ways a “policy” can be established. See Clouthier v. County of Contra Costa, 591 F.3d 25 1232, 1249-50 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d at 1070. 26 “First, a local government may be held liable ‘when implementation of its official 27 policies or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 28 436 U.S. at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government 1 is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to 2 implement procedural safeguards to prevent constitutional violations” or fails to adequately train 3 its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 4 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that 5 “the need for more or different training [was] so obvious, and the inadequacy so likely to result in 6 the violation of constitutional rights, that the policymakers . . . can reasonably be said to have 7 been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390 8 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose 9 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 10 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that 11 amount to deliberate indifference; and (3) that these customs or policies were the moving force 12 behind the employee’s violation of constitutional rights.”). “Third, a local government may be 13 held liable under § 1983 when ‘the individual who committed the constitutional tort was an 14 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 15 unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting 16 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). 17 However, a complaint alleging a Monell violation “‘may not simply recite the elements of 18 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 19 to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of 20 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 21 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] 22 how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, 23 and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of 24 Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 25 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the 26 specific content of the municipal entity’s alleged policy or custom.”). 27 More generally, plaintiff is cautioned that if plaintiff elects to file an amended complaint 28 “the tenet that a court must accept as true all of the allegations contained in a complaint is 1 inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 2 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009). “While legal conclusions can provide the complaint’s framework, they must be supported 4 by factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the 5 line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 6 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 7 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 8 in itself without reference to prior pleadings. The amended complaint will supersede the original 9 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 10 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 11 and identified in the body of the complaint, and each claim and the involvement of each 12 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 13 must also include concise but complete factual allegations describing the conduct and events 14 which underlie plaintiff’s claims. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s August 30, 2019 request for leave to file an amended complaint (ECF No. 18 15) is granted; 19 2. The complaint filed July 9, 2019 (ECF No. 1) is dismissed with leave to amend; 20 3. Within twenty-eight days from the date of this order, an amended complaint shall be 21 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 22 Procedure and the Local Rules of Practice.1 The amended complaint must bear the case number 23 assigned to this action and must be titled “Amended Complaint”; 24 4. Failure to comply with this order in a timely manner may result in a recommendation 25 that this action be dismissed; 26 //// 27 1 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. 1 5. Defendant Becerra’s July 30, 2019 motion to dismiss (ECF No. 8) is denied without 2 || prejudice to renewal as having been rendered moot; and 3 6. Defendant Solano County’s July 30, 2019 motion to dismiss (ECF No. 12) is denied 4 | without prejudice to renewal as having been rendered moot. 5 | Dated: February 5, 2020
g ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 DLB:6 25 | DB/orders/orders.pro se/giddens1263.Ita.grnt.ord 26 27 28