(PS) Osborne v. Tracy Police Dept

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE OSBORNE, No. 2:20-cv-1805-JAM-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON DEFENDANTS’ MOTION TO DISMISS AND 13 v. PLAINTIFF’S IFP APPLICATION 14 TRACY POLICE DEPARTMENT, et al., (ECF Nos. 9, 12.) 15 Defendants. 16 17 Plaintiff, who is proceeding without counsel in this action, alleges multiple causes of 18 action against numerous officers of the Tracy Police Department.1 (ECF No. 8.) Currently 19 before the court are: (I) plaintiff’s motion to proceed in forma pauperis (“IFP”) (ECF No. 9); and 20 (II) defendants’ motion to dismiss (ECF No. 12.). The court now recommends:

21 (I) Plaintiff’s motion to proceed IFP should be denied; and (II) Regarding defendants’ motion to dismiss: 22 (A) plaintiff’s Section 1983 claims should be dismissed because 23 plaintiff has failed to assert plausible facts to state any claims, but leave to amend be granted on her claims against individual 24 officers; (B) plaintiff’s state-law claims should be dismissed with prejudice, as 25 she failed to file a notice of tort claim within 6 months of the alleged incident; and 26 (C) plaintiff’s Title VII claim should be dismissed with prejudice as 27 1 This action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 28 302(c)(21) for the issuance of findings and recommendations. 1 frivolous. 2 BACKGROUND2 3 Plaintiff alleges that on June 14, 2019, Officer Calvache of the Tracy Police Department 4 applied some manner of force against plaintiff, in the presence of Tracy P.D. Sargeant Hicks and 5 Officers Clayton, Acevedo, and Perry. (ECF No. 8 at 9.) Plaintiff allegedly blacked out and the 6 officers left plaintiff in her apartment complex. (Id.) At some point thereafter, some unnamed 7 assailant allegedly sexually assaulted plaintiff. (Id.) When plaintiff called Tracy P.D. for help, 8 no officers responded, and the operators allegedly prevented plaintiff from “responding while 9 calling 911.” (Id.) Plaintiff then went to a neighbor’s apartment. (Id.) Eight Tracy P.D. Officers 10 arrived (Sgt. Hicks, Sgt. Muir, and Officers Calvache, Clayton, Weyant, Perry, Azevedo, and 11 Pederson), and plaintiff was arrested. (Id.) At the station, dispatchers Umpad, Sheivin, Allen, 12 and Quiros did not respond to plaintiff’s pleas for help. (Id. at 10.) Plaintiff was also ignored by 13 Hicks, Clayton, and Calvache. (Id.) Officer Clayton wrote an incident report, which was signed 14 by Sgt. Hicks and Muir. (Id.) 15 Plaintiff filed claims against numerous officers in California state court, and on September 16 8, 2020, defendants removed to this court. (See ECF No. 1.) After defendants moved to dismiss, 17 plaintiff filed a first amended complaint (“1AC”) within 21 days. (ECF No. 8.) The 1AC lists 18 four “counts” under 42 U.S.C. § 1983 for “unreasonable search and seizure,” “violation of 19 declaration of rights,” “deprivation of life, liberty or property without due process of the law and 20 equal protection of the law,” and “freedom of speech.” (Id. at 10.) It also lists “counts” for false 21 arrest/false imprisonment, assault and battery, “bystander liability and supervisory liability,” 22 conversion, trespass to property, malicious prosecution, defamation, intentional infliction of 23 2 The facts herein are from the first amended complaint (ECF No. 8), with the exception of the 24 year on which the alleged encounter occurred, which comes from the original complaint (ECF No. 1-1 at 5.) These facts are construed in the light most favorable to plaintiff—the non-moving 25 party. Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). However, though the 26 court repeats some of plaintiff’s conclusory statements from the complaint, these assertions are ultimately not relied upon. “Conclusory assertions” cannot be relied upon to overcome a motion 27 to dismiss for failure to state a claim. Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009) (In deciding a motion to dismiss for failure to state a claim, the court need not rely on “legal 28 conclusions merely because they are cast in the form of factual allegations.”). 1 emotional distress, negligence, and three Cal. Penal Code sections for perjury (Section 118), false 2 reports (Section 118-1) and False Imprisonment (Section 236). (Id. at 10-11.) Finally, the 1AC 3 lists a “count” under Title VII of the Civil Rights Act of 1964. (Id. at 11.) Plaintiff prays for 4 compensatory damages of $200,000 for medical bills, loss of income, pain and suffering, and 5 punitive damages of $275,000 plus $25,000 from each defendant. (Id. at 12.) The 1AC also lists 6 as relief sought “injunction,” “declaration,” attorney fees, and “personal capacity.” (Id.) 7 Defendants moved to dismiss the 1AC, setting the matter for an October 29, 2020 hearing. 8 (ECF No. 12.) Additionally, plaintiff moved to proceed in forma pauperis. (ECF No. 9.) Both 9 matters were taken under submission after the October 29 hearing. 10 DISCUSSION 11 I. Plaintiff’s Motion to Proceed In Forma Pauperis 12 Federal law authorizes the commencement of an action “without prepayment of fees or 13 security” by a person that is unable to pay such fees. 28 U.S.C. § 1915. Here, plaintiff filed in 14 California state court, and when defendants removed to this court, they paid the applicable filing 15 fee. Thus, plaintiff’s motion to proceed in forma pauperis, so as to avoid the filing fee, is moot. 16 See, e.g., Neighbors v. Kemp, Civ S-06-1611 DFL EFB, 2006 WL 3486829, at *1 (E.D. Cal. 17 Dec. 1, 2006) (denying plaintiff’s motion for IFP status as moot where action filed in state court 18 but defendants paid filing fee upon removal to federal court). 19 Further, the court notes that, given plaintiff’s affidavit, in forma pauperis status would 20 have likely been denied on the merits, as she indicated her gross wages are $1,800.00 per month 21 ($21,600.00 annually). According to the United States Department of Health and Human 22 Services (https://aspe.hhs.gov/poverty-guidelines), the poverty guideline for a household of one 23 not residing in Alaska or Hawaii is $12,760.00 for 2020. Thus, plaintiff’s gross household 24 income is almost double the poverty guideline. To be sure, the Court is sympathetic to the fact 25 that plaintiff does not have a large income by any measure, and that plaintiff also has several 26 expenses to contend with. However, numerous litigants in this Court have significant monthly 27 expenditures, and may have to make difficult choices as to which expenses to incur, which 28 expenses to reduce or eliminate, and how to apportion their income between such expenses and 1 litigating an action in federal Court. Such difficulties in themselves do not amount to indigency. 2 II. Defendants’ Motion to Dismiss 3 Legal Standard 4 Rule 8(a) of the Federal Rules of Civil Procedure requires that a pleading be “(1) a short 5 and plain statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement 6 of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, 7 which may include relief in the alternative or different types of relief.” Rule 8(d)(1). Each 8 allegation must be simple, concise, and direct. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 9 514 (2002) (overruled on other grounds) (“Rule 8(a) is the starting point of a simplified pleading 10 system, which was adopted to focus litigation on the merits of a claim.”). 11 Under Rule 12(b), a defendant may present certain defenses to claims raised in a pleading. 12 One such defense tests whether a complaint has “fail[ed] to state a claim upon which relief can be 13 granted.” Rule 12(b)(6). This challenge tests whether the complaint lacks either a cognizable 14 legal theory or sufficient facts to support a cognizable legal theory. Mollett v. Netflix, Inc., 795 15 F.3d 1062, 1065 (9th Cir. 2015). 16 In evaluating whether a complaint states sufficient facts on which to base a claim, all well- 17 pleaded factual allegations are accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and 18 the complaint must be construed in the light most favorable to the non–moving party, Corrie v. 19 Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is not, however, required to accept 20 as true “conclusory [factual] allegations that are contradicted by documents referred to in the 21 complaint,” or “legal conclusions merely because they are cast in the form of factual allegations.” 22 Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). Thus, to avoid dismissal for failure to 23 state a claim, a complaint must contain more than “naked assertions,” “labels and conclusions,” or 24 “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 25 U.S. 544, 555-57 (2007). Simply, the complaint “must contain sufficient factual matter, accepted 26 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 27 678 (2009) (citing Twombly, 550 U.S. at 570). Plausibility means pleading “factual content that 28 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 1 alleged.” Id. 2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 fn. 7 3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 4 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 5 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 6 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, leave to 7 amend need not be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 8 Analysis 9 A. Plaintiff fails to state sufficient plausible facts to state any Section 1983 claims. 10 Plaintiffs’ complaint asserts claims under 42 U.S.C. § 1983 for alleged violations of her 11 First, Fourth, and Fourteenth Amendment constitutional rights. She asserts these claims against 12 the Tracy Police Department and ten of its officers/employees. (See ECF No. 8 at 8.) Even 13 construing the complaint liberally, plaintiff has failed to state sufficient plausible facts to support 14 any civil rights claims against these officers or the department. 15 1. Claims against Individual Officers 16 Title 42 U.S.C. Section 1983 provides a cause of action for the deprivation of “rights, 17 privileges, or immunities secured by the Constitution or laws of the United States” against a 18 person acting “under color of any statute, ordinance, regulation, custom, or usage.” Gomez v. 19 Toledo, 446 U.S. 635, 639 (1980). “Section 1983 is not itself a source of substantive rights; 20 rather it provides a method for vindicating federal rights elsewhere conferred.” Graham v. 21 Connor, 490 U.S. 386, 393–94 (1989). Thus, to state a claim for relief under Section 1983, a 22 plaintiff must allege that the defendant (1) acted under color of state law; and (2) caused a 23 plaintiff to be deprived of a right secured by the Constitution or laws of the United States. Nurre 24 v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). An officer “causes” a constitutional 25 deprivation when he or she (1) “does an affirmative act, participates in another’s affirmative acts, 26 or omits to perform an act which he [or she] is legally required to do that causes the deprivation”; 27 or (2) “set[s] in motion a series of acts by others which the [defendant] knows or reasonably 28 should know would cause others to inflict the constitutional injury.” Lacey v. Maricopa Cty., 693 1 F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). 2 The causation inquiry “must be individualized and focus on the duties and responsibilities of each 3 individual defendant whose acts or omissions are alleged to have caused a constitutional 4 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (emphasis added) 5 Here, the 1AC generally references four separate encounters with Tracy P.D. officers. 6 (See ECF No. 8 at 9-10.) The first appears to have involved Officers Calvache, Hicks, Clayton, 7 Acevedo, and Perry at her apartment complex. The second involves some unnamed officers who 8 received plaintiff’s 911 calls. The third involves officers Hicks, Muir, Calvache, Clayton, 9 Weyant, Perry, Azevedo [sic], and Pederson outside a neighbor’s apartment. The fourth involves 10 Officers Umpad, Sheivin, Allen, Quiros, Hicks, Clayton, and Calvache while plaintiff was at the 11 Tracy police station. However, the 1AC merely generally describes, in a sentence or two, each of 12 these encounters, and plaintiff often relies on conclusory language to describe the encounters. 13 (See, e.g., ECF No. 8 at 9:14-15, stating that “[Officer] Calvache used undue, unreasonable forces 14 and/or excessive force (assault and battery) . . . .”) This is insufficient for pleading purposes. 15 See, e.g., Pangborn v. Baudino, 2015 WL 13764940, at *6 (C.D. Cal. Dec. 29, 2015) (“Plaintiff’s 16 conclusory allegations that defendants Jarvis and Avalos grabbed plaintiff with “excessive force” 17 and that “[n]umerous [unspecified] deput[ies]” had pinned plaintiff on the floor . . . are 18 insufficient to state a civil rights claim under Section 1983.”). To state a claim, plaintiff must 19 allege sufficient facts as to each officer’s actions at each encounter. Section 1983 allegations are 20 incredibly fact-intensive, and so the more details plaintiff can provide in her complaint regarding 21 each officer’s actions, the easier it will be for the court and defendant to understand the nature of 22 plaintiff’s claims. 23 Given that the 1AC simply lacks sufficient factual matter to state a claim against any of 24 the individual officers, the court will pause its inquiry here and grant plaintiff leave to amend her 25 complaint. Plaintiff is advised that, if she elects to amend her Section 1983 claims against any of 26 these officers, she must state particular facts about that officer’s actions and connect it to the 27 constitutional deprivation alleged (i.e. excessive force, due process, free speech, etc.). Failure to 28 do so will result in another dismissal—most likely without leave to amend. 1 2. Claims against the Tracy Police Department 2 “[L]ocal-government entities are considered ‘persons’ under Section 1983 and therefore 3 may be liable for causing a constitutional deprivation.” See Monell v. Dep't of Soc. Servs., 436 4 U.S. 658, 690-91 (1978). In California, police departments are independently suable public 5 entities. See Streit v. Cnty. of L.A., 236 F.3d 552, 565 (9th Cir. 2001). However, these entities 6 are only liable “for injuries that arise from an official policy or longstanding custom.” Monell, 7 436 U.S. at 694. To raise a Monell claim, a plaintiff must allege facts in a complaint “that a 8 [municipal] employee committed the alleged constitutional violation pursuant to a formal 9 governmental policy or a longstanding practice or custom which constitutes the standard 10 operating procedure of the local governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 11 (9th Cir. 1992) (per curiam) (citations omitted). In addition, a plaintiff must allege facts 12 demonstrating that the policy was “(1) the cause in fact and (2) the proximate cause of the 13 constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 14 Plaintiff’s complaint, as written, is devoid of any facts indicating a viable Monell claim 15 exists. The 1AC merely names “Tracy Police Department” as a defendant, which is insufficient 16 to state a claim. See, e.g., Morrison v. City of Los Angeles, 2019 WL 3017762, at *6 (C.D. Cal. 17 July 10, 2019). Further, at the hearing it became clear that plaintiff has no facts to support a 18 contention that an unconstitutional policy, practice, or custom exists, and conclusory assertions 19 will not support a claim. See, e.g., Estate of Mendez v. City of Ceres, 390 F. Supp. 3d 1189, 20 1207 (E.D. Cal. 2019) (“Plaintiffs have only included one conclusory statement—that the Doe 21 defendants who shot Carmen or failed to intercede ‘were inadequately . . . disciplined’ as a result 22 of ‘lack of proper training, pursuant to policy, or the result of the lack of policy.’ That one 23 statement is not sufficient to support a claim that Defendants have adopted an unconstitutional 24 practice or custom of inadequate discipline [for] excessive force.”). For this reason, the court 25 recommends dismissal of any Monell-style claim against the Tracy Police Department with 26 prejudice. 27 //// 28 //// 1 B. Plaintiff’s state-law claims are barred by Cal. Gov. Code Section 911. 2 Reviewing the remainder of plaintiff’s list of claims in the 1AC, they also appear tied to 3 the June 14, 2019 events. (See ECF No. 8 at 10-11.) However, as defendants point out, the key 4 difference between plaintiff’s Section 1983 claims and the state-law claims lies in California’s 5 requirement that any “claim relating to a cause of action for . . . injury to person or to personal 6 property . . . shall be presented . . . not later than six months after the accrual of the cause of 7 action.” Cal. Gov. Code § 911.2; see also, e.g., Radocchia v. City of Los Angeles, 479 Fed. 8 Appx. 44, 45 (9th Cir. 2012) (noting the applicability of California’s six-month deadline for any 9 state-law claims brought in federal court). In general, a cause of action accrues when the plaintiff 10 “suspects or should suspect that the injury was caused by someone's wrongful act.” Brandon G. 11 v. Gray, 111 Cal. App. 4th 29, 35 (2003). As a California court of appeal recently reminded: 12 Only after the public entity's board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit 13 alleging a cause of action in tort against the public entity. The failure to timely present a claim to the public entity bars the 14 claimant from filing a lawsuit against that public entity. The purpose . . . is to provide the public entity sufficient information to 15 enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. 16 17 Le Mere v. Los Angeles Unified Sch. Dist., 35 Cal. App. 5th 237, 246 (2019) (cleaned up). 18 Here, plaintiff recites a list of the following causes of action at the end of her 1AC: false 19 arrest/false imprisonment, assault and battery, “bystander liability and supervisory liability,” 20 conversion, trespass to property, malicious prosecution, defamation, intentional infliction of 21 emotional distress, negligence, and three Cal. Penal Code sections for perjury (Section 118), false 22 reports (Section 118-1) and False Imprisonment (Section 236). (ECF No. 8 at 10-11.) However, 23 the record contains no indication plaintiff presented any of these claims to the city within six 24 months of June 14, 2019. (See ECF Nos. 1, 8.) When the court inquired as to whether plaintiff 25 submitted claims, she indicated she has done so, but only did so long after the six-month deadline, 26 as she was unaware of the deadline. See Martin v. City of Madera, 265 Cal. App. 2d 76, 79 27 (1968) (“Mere ignorance of the law, at least where coupled with negligence in failing to look it 28 up, is not sufficient cause to allow a petitioner to file a late claim against a public entity.”). 1 Thus, even if plaintiff were to provide facts to support these claims, they would be time- 2 barred under California law. See Ridley v. City and County of San Francisco, 272 Cal. App. 2d 3 290, 291-92 (1969) (dismissing state law claims for battery, false arrest and imprisonment by 4 police officers where plaintiffs failed to present these causes of action to the city within the 5 prescribed time limits); see also, e.g., Gallardo v. DiCarlo, 203 F. Supp. 2d 1160, 1169 (C.D. Cal. 6 2002) (assault and battery claims dismissed for failing to follow Section 911.2); V.C. v. Los 7 Angeles Unified School Dist., 139 Cal. App. 4th 499, 509 (2006) (same result for negligence 8 claim); General Sec. Services Corp. v. County of Fresno, 815 F. Supp. 2d 1123, 1142-44 (E.D. 9 Cal. 2011) (conversion, same result); Meester v. Davies, 11 Cal. App. 3d 342, 348 (1970) 10 (malicious prosecution, same result); Shively v. Bozanich, 31 Cal. 4th 1230, 1237 (2003) 11 (defamation action accrues when defendant communicates defamatory statement to others); 12 Ramachandran v. City of Los Altos, 359 F. Supp. 3d 801, 816 (2019) (intentional infliction of 13 emotional distress claim dismissed for failure to follow Section 911 time limits); Willis v. City of 14 Los Angeles, 57 Fed. Appx. 283, 289 (9th Cir. 2002) (construing plaintiff’s allegations of perjury 15 and filing false police reports under the penal code as “torts in essence,” which required 16 presentation of claims to city before suit was filed). 17 Plaintiff also asserted that her state-law claims should not be time-barred due to delayed 18 discovery. (ECF No. 18.). This doctrine generally allows an accrual date to be delayed “until the 19 plaintiff is aware of his or her injury and its cause.” Brandon G. v. Gray, 111 Cal. App. 4th 29, 20 35 (2003). However, the court sees no plausible application of this doctrine here, as plaintiff’s 21 case concerns her allegations of personal injury by officers of the Tracy P.D. See Ovando v. City 22 of Los Angeles, 92 F. Supp. 2d 1011, 1023 (C.D. Cal. 2000) (noting that in personal injury cases, 23 a cause of action typically accrues at the time of injury). At the hearing, plaintiff asserted she 24 blacked-out during the encounter in June, but also appears to have generally been aware of the 25 encounter with Tracy P.D. in June.3 Thus, all state-law claims alleged in plaintiff’s complaint 26

27 3 Should plaintiff believe the court has misconstrued either her factual assertions regarding the submission of her claims to the city within 6 months, or her legal assertions regarding the delayed 28 discovery issue, she may address those via any objections to these findings and recommendations. 1 should be dismissed with prejudice. Cahill, 80 F.3d at 339 (if amendment would be futile, leave 2 to amend need not be given). 3 C. Plaintiff’s “Title VII” claim should be dismissed with prejudice as frivolous. 4 Finally, plaintiff cites in her list of claims “Title VII of the Civil Rights Act of 1964.” 5 (ECF No. 8 at 1.) However, this statute generally concerns discrimination in employment against 6 a plaintiff “because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. 7 § 2000e-2. Plaintiff has not alleged she was employed, or was seeking employment, with the 8 police department. Accordingly, the court recommends the Title VII claim be dismissed with 9 prejudice as frivolous. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985) 10 (finding appropriate district court’s dismissal of “wholly frivolous” claims) (citing Hagans v. 11 Lavine, 415 U.S. 528, 536-39 (1974)) 12 STANDARDS FOR AMENDMENT. 13 In order for plaintiff to amend her Section 1983 claims against the individual officers, she 14 must file a new complaint that shall:

15 i. be captioned “Second Amended Complaint”; ii. be limited to 20 pages (excluding any appended exhibits), with either legible 16 handwriting or text utilizing a font size of 12 Times New Roman or equivalent and double spacing (pages exceeding the 20-page limit will be summarily stricken and 17 will not be considered part of plaintiff’s operative pleading); 18 iii. list the specific acts that each officer took in allegedly violating plaintiff’s rights; iv. refrain from alleging any conclusory factual allegations (i.e. “Officer X used 19 unreasonable force”) or redundant/immaterial/scandalous matters; v. include a general background facts section to orient the reader only as necessary; 20 vi. include her statements for jurisdiction, venue, and relief sought; vii. address any other pleading deficiencies outlined in Section A.1. above; and 21 viii. be filed within 21 days after the district judge has issued an order on these findings 22 and recommendations.

23 Plaintiff is informed that the Court cannot refer to a prior complaint or other filing in order to 24 make Plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 25 complaint be complete in itself without reference to any prior pleading. As a general rule, an 26 amended complaint supersedes the original complaint, and once the amended complaint is filed, 27 the original complaint no longer serves any function in the case. 28 Finally, nothing in this order requires plaintiff to file a second amended complaint. If she 1 || determines that she is unable to amend her complaint to state a viable claim in accordance with 2 | her obligations under Federal Rule of Civil Procedure 11, she may alternatively file a notice of 3 || voluntary dismissal of his claims without prejudice pursuant to Federal Rule of Civil Procedure 4 | 41(a))(A)G). This includes dismissal against any individual officer against whom she has no 5 || evidence of a constitutional violation. This voluntary dismissal should be filed within 21 days of 6 || the district court’s order on these findings and recommendations. However, if plaintiff elects to 7 || proceed with this action in federal court, she is encouraged to familiarize herself with this court’s 8 || Local Rules (available at http://www.caed.uscourts.gov/caednew/index.cfm/rules/local-rules/) and 9 | the Federal Rules of Civil Procedure. Although the court is sympathetic to the difficulties faced 10 | by pro se litigants in litigating their cases in federal court, and liberally construes their pleadings, 11 | pro se litigants are expected to comply with all procedural rules and court orders. 12 RECOMMENDATIONS 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 9) be DENIED as moot; 15 2. Defendants’ motion to dismiss (ECF No. 12) be GRANTED; 16 3. The state-law, Title VII, and Monell claims be DISMISSED WITH PREJUDICE; 17 4. The Section 1983 claims be DISMISSED WITHOUT PREJUDICE; and 18 5. Plaintiff be granted 21 days from the date of the district court’s order to amend her 19 Section 1983 claims against the individual officers, using the above pleading standards 20 These findings and recommendations will be submitted to the United States District Judge 21 || assigned to the case, pursuant to 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being 22 || served with these findings and recommendations, Plaintiff may file written objections with the 23 || Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 24 | Recommendation.” Plaintiff is advised that failure to file objections within the specified time 25 || frame may result in the waiver of the “right to challenge the magistrate’ factual findings” on 26 || appeal. Wilkerson v. Wheeler, 722 F.3d 834, 839 (9th Cir. 2014). 27 || Dated: October 30, 2020 28 —Frebl Alarm KENDALL J.NE 11 UNITED STATES MAGISTRATE JUDGE