1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MOODY WOODROW TANKSLEY, No. 2:20-cv-1970 JAM DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SACRAMENTO ROOM & BOARD, et al. 15 Defendants. 16 17 Plaintiff Moody Woodrow Tanksley is proceeding in this action pro se. This matter was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Plaintiff complains about an incident in which 21 he was bitten by spiders. 22 The court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 25 below, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to 26 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 Complaint 11 Plaintiff’s complaint alleges that in September of 2020, plaintiff was staying at 12 Sacramento Room and Board. (Compl. (ECF No. 1) at 3.) Plaintiff was bitten by a spider. (Id.) 13 The Sacramento Fire Department responded and “refused” plaintiff medical treatment. (Id.) 14 Plaintiff alleges claims for “life threat . . . of getting bitten by unknown spiders,” and “unfit 15 home.” (Id. at 3-4.) From these allegations, however, it is entirely unclear what claim plaintiff is 16 attempting to assert and what are the alleged wrongful actions of any defendant. 17 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 18 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 19 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 20 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 21 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 22 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 23 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 24 557). A plaintiff must allege with at least some degree of particularity overt acts which the 25 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 26 Moreover, the complaint purports to be brought pursuant to 42 U.S.C. § 1983. (Compl. 27 (ECF No. 1) at 1.) 42 U.S.C. § 1983
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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 MOODY WOODROW TANKSLEY, No. 2:20-cv-1970 JAM DB PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SACRAMENTO ROOM & BOARD, et al. 15 Defendants. 16 17 Plaintiff Moody Woodrow Tanksley is proceeding in this action pro se. This matter was 18 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 19 Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 2.) Plaintiff complains about an incident in which 21 he was bitten by spiders. 22 The court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 25 below, the undersigned will recommend that plaintiff’s complaint be dismissed without leave to 26 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 Complaint 11 Plaintiff’s complaint alleges that in September of 2020, plaintiff was staying at 12 Sacramento Room and Board. (Compl. (ECF No. 1) at 3.) Plaintiff was bitten by a spider. (Id.) 13 The Sacramento Fire Department responded and “refused” plaintiff medical treatment. (Id.) 14 Plaintiff alleges claims for “life threat . . . of getting bitten by unknown spiders,” and “unfit 15 home.” (Id. at 3-4.) From these allegations, however, it is entirely unclear what claim plaintiff is 16 attempting to assert and what are the alleged wrongful actions of any defendant. 17 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 18 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 19 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 20 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 21 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 22 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 23 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 24 557). A plaintiff must allege with at least some degree of particularity overt acts which the 25 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 26 Moreover, the complaint purports to be brought pursuant to 42 U.S.C. § 1983. (Compl. 27 (ECF No. 1) at 1.) 42 U.S.C. § 1983 provides that, 28 //// 1 [e]very person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation 2 of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit 3 in equity, or other proper proceeding for redress. 4 “Because the Fire Department is a municipal department within the City of Sacramento it 5 is not a ‘person’ subject who can be sued pursuant to § 1983.”1 Jewett v. City of Sacramento 6 Fire Dept., No. CIV. 2:10-0556 WBS KJN, 2010 WL 3212774, at *2 (E.D. Cal. Aug. 12, 2010). 7 The Sacramento Fire Department is instead a municipal department of the City of Sacramento. 8 “‘Naming a municipal department as a defendant is not an appropriate means of pleading a § 9 1983 action against a municipality.’” Vance v. County of Santa Clara, 928 F.Supp. 993, 996 10 (N.D. Cal. 1996) (quoting Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991)). 11 “In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court 12 held that a municipality may not be held liable for a § 1983 violation under a theory of respondeat 13 superior for the actions of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060, 14 1073 (9th Cir. 2016) (en banc). In this regard, “[a] government entity may not be held liable 15 under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a 16 moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 17 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). 18 Thus, municipal liability in a § 1983 case may be premised upon: (1) an official policy; 19 (2) a “longstanding practice or custom which constitutes the standard operating procedure of the 20 local government entity;” (3) the act of an “official whose acts fairly represent official policy such 21 that the challenged action constituted official policy;” or (4) where “an official with final policy- 22 making authority delegated that authority to, or ratified the decision of, a subordinate.” Price v. 23 Sery, 513 F.3d 962, 966 (9th Cir. 2008). 24 //// 25
1 The complaint does not allege whether “Sacramento Room and Board” is a municipal or private 26 defendant. If it is a municipal defendant the above Monell analysis is applicable. If it is a private 27 entity, § 1983 is unlikely to apply to its conduct. See Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999) (“§ 1983 excludes from its reach merely private 28 conduct, no matter how discriminatory or wrong”). 1 To sufficiently plead a Monell claim, allegations in a complaint “may not simply recite the 2 elements of a cause of action, but must contain sufficient allegations of underlying facts to give 3 fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. 4 Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 5 (9th Cir. 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, 6 explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the 7 plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” 8 Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 9 148 F.Supp.3d 936, 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims 10 that fail to identify the specific content of the municipal entity’s alleged policy or custom.”). 11 Here, the complaint contains no allegations related to an official policy or custom. 12 II. Leave to Amend 13 For the reasons stated above, plaintiff’s complaint should be dismissed. The undersigned 14 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 15 relief could be granted. “Valid reasons for denying leave to amend include undue delay, bad 16 faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 17 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. 18 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely 19 given, the court does not have to allow futile amendments). In light of the deficiencies noted 20 above, the undersigned finds that it would be futile to grant plaintiff leave to amend in this case. 21 CONCLUSION 22 Accordingly, for the reasons stated above, IT IS HEREBY RECOMMENDED that: 23 1. Plaintiff’s October 1, 2020 application to proceed in forma pauperis (ECF No. 2) be 24 denied; 25 2. Plaintiff’s October 1, 2020 complaint (ECF No. 1) be dismissed without leave to 26 amend; and 27 3. This action be dismissed. 28 //// 1 These findings and recommendations will be submitted to the United States District Judge 2 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 3 | after being served with these findings and recommendations, plaintiff may file written objections 4 | with the court. A document containing objections should be titled “Objections to Magistrate 5 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 6 | the specified time may, under certain circumstances, waive the right to appeal the District Court’s 7 | order. See Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 | Dated: March 25, 2021 Mand?» 10 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 DBonders\orders pro se\tanksley1970.dism.f&rs 22 23 24 25 26 27 28