1 2 3 4 5 6 7 10 11 SHEILA HALOUSEK, No. 2:21-cv-2351 TLN DB PS 12 Plaintiff, 13 v. ORDER OFFICE AND THE STATE OF 16 Defendants. 17 18 Plaintiff Sheila Halousek 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). Pending 20 before the court are plaintiff’s amended complaint and motion to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 4.) Therein, plaintiff complains about the 22 threatened towing of plaintiff’s vehicle. 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons 26 stated below, plaintiff’s amended complaint will be dismissed with leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Amended Complaint 11 On December 20, 2021, plaintiff filed a complaint. On April 18, 2022, the undersigned 12 dismissed that complaint with leave to amend. (ECF No. 3.) On May 6, 2022, plaintiff filed an 13 amended complaint. (ECF No. 4.) Although the April 18, 2022 order advised plaintiff of the 14 defects found in the complaint, plaintiff’s amended complaint is similarly deficient. 15 Specifically, the amended complaint fails to contain a short and plain statement of a claim 16 showing that plaintiff is entitled to relief. In this regard, the amended complaint alleges that on 17 November 29, 2021, “Deputy Sheriff Oliver” issued plaintiff “a 72-hour Notice, Vehicle 18 Check/Parking Warning,” despite the fact that plaintiff “was occupying” the vehicle. (Am. 19 Compl. (ECF No. 4) at 18-19.) The notice advised that plaintiff “had 72 hours to move her 20 vehicle or it would be towed and confiscated.” (Id. at 19.) Attached to the amended complaint is 21 a copy of the notice which indicates that plaintiff’s vehicle violated California Vehicle Code § 22 22651(o) by having an expired registration for more than 6 months. (Id. at 16.) 23 While it is clear from the amended complaint’s allegations that plaintiff received a 24 warning, it is not clear if plaintiff’s vehicle was ultimately towed. Moreover, plaintiff is advised 25 that the Fourth Amendment allows for the impoundment of a vehicle “under the community 26 caretaking doctrine if the driver’s violation of a vehicle regulation prevents the driver from 27 lawfully operating the vehicle, and also if it is necessary to remove the vehicle from an exposed 28 or public location.” Miranda v. City of Cornelius, 429 F.3d 858, 865 (9th Cir. 2005). “The 1 authority of police to seize and remove from the streets vehicles impeding traffic or threatening 2 public safety and convenience is beyond challenge.” South Dakota v. Opperman, 428 U.S. 364, 3 369 (1976); see also U.S. v.
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1 2 3 4 5 6 7 10 11 SHEILA HALOUSEK, No. 2:21-cv-2351 TLN DB PS 12 Plaintiff, 13 v. ORDER OFFICE AND THE STATE OF 16 Defendants. 17 18 Plaintiff Sheila Halousek 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). Pending 20 before the court are plaintiff’s amended complaint and motion to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 4.) Therein, plaintiff complains about the 22 threatened towing of plaintiff’s vehicle. 23 The court is required to screen complaints brought by parties proceeding in forma 24 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 25 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons 26 stated below, plaintiff’s amended complaint will be dismissed with leave to amend. 27 //// 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 8 judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Amended Complaint 11 On December 20, 2021, plaintiff filed a complaint. On April 18, 2022, the undersigned 12 dismissed that complaint with leave to amend. (ECF No. 3.) On May 6, 2022, plaintiff filed an 13 amended complaint. (ECF No. 4.) Although the April 18, 2022 order advised plaintiff of the 14 defects found in the complaint, plaintiff’s amended complaint is similarly deficient. 15 Specifically, the amended complaint fails to contain a short and plain statement of a claim 16 showing that plaintiff is entitled to relief. In this regard, the amended complaint alleges that on 17 November 29, 2021, “Deputy Sheriff Oliver” issued plaintiff “a 72-hour Notice, Vehicle 18 Check/Parking Warning,” despite the fact that plaintiff “was occupying” the vehicle. (Am. 19 Compl. (ECF No. 4) at 18-19.) The notice advised that plaintiff “had 72 hours to move her 20 vehicle or it would be towed and confiscated.” (Id. at 19.) Attached to the amended complaint is 21 a copy of the notice which indicates that plaintiff’s vehicle violated California Vehicle Code § 22 22651(o) by having an expired registration for more than 6 months. (Id. at 16.) 23 While it is clear from the amended complaint’s allegations that plaintiff received a 24 warning, it is not clear if plaintiff’s vehicle was ultimately towed. Moreover, plaintiff is advised 25 that the Fourth Amendment allows for the impoundment of a vehicle “under the community 26 caretaking doctrine if the driver’s violation of a vehicle regulation prevents the driver from 27 lawfully operating the vehicle, and also if it is necessary to remove the vehicle from an exposed 28 or public location.” Miranda v. City of Cornelius, 429 F.3d 858, 865 (9th Cir. 2005). “The 1 authority of police to seize and remove from the streets vehicles impeding traffic or threatening 2 public safety and convenience is beyond challenge.” South Dakota v. Opperman, 428 U.S. 364, 3 369 (1976); see also U.S. v. McKinnon, 681 F.3d 203, 209 (5th Cir. 2012) (upholding 4 impoundment where “the vehicle’s registration sticker was expired”); Ramirez v. City of Buena 5 Park, 560 F.3d 1012, 1025 (9th Cir. 2009) (“[t]he community caretaking doctrine . . . allows 6 police officers to impound vehicles that jeopardize public safety and the efficient movement of 7 vehicular traffic.”); Fitzpatrick v. City of Los Angeles, Case No. EDCV 21-6841 JGB (SPx), 8 2022 WL 4474452, at *7 (C.D. Cal. Sept. 16, 2022) (“the Court finds that Mr. McCarty cannot 9 allege a Fourth Amendment violation where his vehicle was lawfully towed for expired 10 registration”). 11 Moreover, the amended complaint names as defendants only the State of California and 12 the Sacramento County Sherriff’s Office. (Am. Compl. (ECF No. 4) at 2-3.) However, there are 13 no allegations concerning the actions of either defendant. Although the Federal Rules of Civil 14 Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the 15 plaintiff’s claims and must allege facts that state the elements of each claim plainly and 16 succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th 17 Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the 18 elements of cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked 19 assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) 20 (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of 21 particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 22 733 F.2d at 649. 23 As to the Sacramento County Sherriff’s Office plaintiff is advised that “[i]n Monell v. 24 Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality 25 may not be held liable for a § 1983 violation under a theory of respondeat superior for the actions 26 of its subordinates.”1 Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In 27 1 A county itself—not an agency or department—is a proper defendant for a 42 U.S.C. § 1983 28 claim. See Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). 1 this regard, “[a] government entity may not be held liable under 42 U.S.C. § 1983, unless a 2 policy, practice, or custom of the entity can be shown to be a moving force behind a violation of 3 constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 4 Monell, 436 U.S. at 694). 5 In order to allege a viable Monell claim against the County of Sacramento, plaintiff 6 “must demonstrate that an ‘official policy, custom, or pattern’ on the part of [the defendant] was 7 ‘the actionable cause of the claimed injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 8 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). 9 There are three ways a “policy” can be established. See Clouthier v. County of Contra Costa, 591 10 F.3d 1232, 1249-50 (9th Cir. 2010). 11 “First, a local government may be held liable ‘when implementation of its official 12 policies or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 13 436 U.S. at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government 14 is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to 15 implement procedural safeguards to prevent constitutional violations” or fails to adequately train 16 its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 17 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that 18 “the need for more or different training [was] so obvious, and the inadequacy so likely to result in 19 the violation of constitutional rights, that the policymakers . . . can reasonably be said to have 20 been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390 21 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose 22 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 23 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that 24 amount to deliberate indifference; and (3) that these customs or policies were the moving force 25 behind the employee’s violation of constitutional rights.”). “Third, a local government may be 26 held liable under § 1983 when ‘the individual who committed the constitutional tort was an 27 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 28 //// 1 unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting 2 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). 3 However, a complaint alleging a Monell violation “‘may not simply recite the elements of 4 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 5 to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of 6 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 7 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] 8 how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, 9 and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of 10 Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 11 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the 12 specific content of the municipal entity’s alleged policy or custom.”). 13 II. Leave to Amend 14 For the reasons stated above, plaintiff’s amended complaint must be dismissed. The 15 undersigned has carefully considered whether plaintiff may further amend the complaint to state a 16 claim upon which relief can be granted. “Valid reasons for denying leave to amend include 17 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan 18 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath 19 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 20 be freely given, the court does not have to allow futile amendments). 21 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 22 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 23 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 24 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 25 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 26 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 27 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 28 1988)). 1 Here, the undersigned cannot yet say that it appears beyond doubt that further leave to 2 amend would be futile. Plaintiff’s amended complaint will therefore be dismissed, and plaintiff 3 will be granted leave to file a second amended complaint. Plaintiff is cautioned, however, that if 4 plaintiff elects to file a second amended complaint “the tenet that a court must accept as true all of 5 the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals 6 of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they 8 must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the 9 claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. 10 at 557). 11 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 12 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 13 in itself without reference to prior pleadings. The second amended complaint will supersede the 14 amended complaint just as the amended complaint superseded the original complaint. See Loux 15 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended complaint, just as if it were 16 the initial complaint filed in the case, each defendant must be listed in the caption and identified 17 in the body of the complaint, and each claim and the involvement of each defendant must be 18 sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include 19 concise but complete factual allegations describing the conduct and events which underlie 20 plaintiff’s claims. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The amended complaint filed May 6, 2022 (ECF No. 4) is dismissed with leave to 24 amend.2 25 2. Within twenty-eight days from the date of this order, a second amended complaint 26 shall be filed that cures the defects noted in this order and complies with the Federal Rules of 27 2 Plaintiff need not file another application to proceed in forma pauperis at this time unless 28 plaintiff’s financial condition has improved since the last such application was submitted. 1 Civil Procedure and the Local Rules of Practice.3 The second amended complaint must bear the 2 case number assigned to this action and must be titled “Second Amended Complaint.” 3 3. Failure to comply with this order in a timely manner may result in a recommendation 4 that this action be dismissed. 5 DATED: October 14, 2022 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3 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.