1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PRINCE PAUL RAYMOND WILLIAMS, Case No. 1:21-cv-01436-NONE-SKO
10 Plaintiff, FIRST SCREENING ORDER 11 v. (Doc. 4) 12 DRAKAINA LOGISTICS, et al., TWENTY-ONE (21) DAY DEADLINE 13 Defendants. 14
15 16 I. INTRODUCTION 17 On September 28, 2021, Plaintiff Prince Paul Raymond Williams, proceeding pro se, filed 18 a complaint. (Doc. 1 (“Compl.”).) Plaintiff also filed an application to proceed in forma pauperis, 19 which was granted on September 30, 2021. (Docs. 2 & 3.) On October 14, 2021, before the Court 20 screened the initial complaint, Plaintiff filed a First Amended Complaint (“FAC”) as a matter of 21 course, see Fed. R. Civ. P. Rule 15(a)(1). (Doc. 4 (“FAC”).) Plaintiff’s FAC, which supersedes the 22 initial complaint filed on September 28, 2021, see Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th 23 Cir. 2012) (en banc), is now before the Court for screening. As discussed below, Plaintiff’s 24 allegations are insufficient to state a cognizable claim. Plaintiff is granted leave to file a second 25 amended complaint and is provided the pleading requirements and legal standards under which his 26 claims will be analyzed. 27 /// 28 /// 1 A. Screening Requirement and Standard 2 In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 3 each case and shall dismiss the case at any time, if the Court determines that the allegation of poverty 4 is untrue, or that the action or appeal is frivolous or malicious, fails to state a claim upon which 5 relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 6 28 U.S.C. § 1915(e)(2). If the Court determines that a complaint fails to state a claim, leave to 7 amend may be granted to the extent that the deficiencies of the complaint can be cured by 8 amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 9 The Court’s screening of a complaint under 28 U.S.C. § 1915(e)(2) is governed by the 10 following standards. A complaint may be dismissed as a matter of law for failure to state a claim 11 for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable 12 legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff 13 must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant 14 fair notice of what the plaintiff’s claims are and the grounds upon which they rest. See, e.g., Brazil 15 v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 16 (9th Cir. 1991). 17 B. Summary of the First Amended Complaint 18 On approximately July 27, 2021, Plaintiff began working as a driver for Defendant Drakaina 19 Logistics (“Drakaina”), which is a contracted Amazon Delivery Service Partner. (FAC at ¶ 17.) 20 Defendant Karen Eoff is the Chief Executive Officer of Drakaina, and Defendant Paul Vargas is a 21 manager at the company. (Id. at ¶¶ 5–6.) 22 On September 2, 2021, Eoff provided Plaintiff with two income withholding orders. (FAC 23 at ¶¶ 18–20.) Neither order contained a name or signature of a judicial officer or a date of signature. 24 (Id. at ¶ 21.) Instead, the two orders bore the names of Defendants Kerly Keokominh and Janet 25 Ziadeh, respectively, both of whom are “Child Support Representatives” and the “issuing official” 26 of the orders. (Id. at ¶¶ 19–21.) 27 Shortly after Plaintiff was provided with the income withholding orders, Plaintiff informed 28 Eoff of a lower back injury that was adversely affecting the range of motion of his left foot. (FAC 1 at 22.) Eoff stated that she would send Plaintiff “help” if he needed it. (Id.) Plaintiff then loaded 2 his truck and proceeded on his delivery route, but he needed to pull over due to physical and 3 psychological stress and pain from his back injury, in addition to frustration over the two income 4 withholding orders “alleging debt.” (Id. at ¶ 23.) When Plaintiff contacted Vargas to request time 5 off for the day to recover from his issues, Vargas stated that “if Plaintiff did not complete his route, 6 his actions would be considered ‘job abandonment.’” (Id.) 7 On September 7, 2021, Plaintiff provided Eoff both personally and via mail a notice 8 demanding that Drakaina “cease and desist” from sending Plaintiff’s personal property to third-party 9 agencies, including the Fresno County Department of Child Support Services and the Solano County 10 Department of Child Support Services, unless Eoff could provide, within three days from the date 11 of the notice, “proof of a warrant signed by a judge of proper jurisdiction authorizing” Drakaina to 12 seize his property. (FAC at ¶ 24.) Later that day, Eoff sent Plaintiff a message via WhatsApp, 13 stating that Drakaina was required to comply with the income withholding orders. (Id.) Eoff 14 informed Plaintiff that Plaintiff could contest the orders by filing a request for hearing, as set forth 15 in the income withholding orders. (Id.) When Plaintiff asked Eoff to provide the law requiring her 16 to withhold Plaintiff’s wages, Eoff did not reply. (Id.) 17 The next day, on September 8, 2021, Plaintiff sent Eoff a message on WhatsApp with case 18 law supporting his position that Drakaina did not have the authority to withhold his wages and stated, 19 “[Y]ou taking my money without my permission would be unconstitutional as well, [Eoff]. Harm 20 me financially if you choose . . . and I’ll do what the letter says the day I see a garnishment.” (FAC 21 at ¶ 26.) Eoff reiterated that the income withholding orders would remain in place as required and 22 Plaintiff should file paperwork to request a hearing if he wanted to contest the orders. (Id. at ¶ 27.) 23 Eoff indicated that she would lift the income withholding orders immediately if she received 24 “paperwork” to do so, but Plaintiff’s “continued threats, bullying and now insults with [sic] not 25 change” her position. (Id.) 26 On September 10, 2021, Plaintiff’s wages were garnished in the amount of $411.57. (FAC 27 at ¶ 29.) Plaintiff subsequently mailed a “NOTICE OF INTENT TO SUE” to Eoff. (Id. at ¶ 30.) 28 Plaintiff’s wages were again garnished in the amount of $411.57 on September 24, 2021, and 1 October 8, 2021. (Id. at ¶¶ 31, 33.) 2 On October 5, 2021, Plaintiff mailed Keokominh and Ziadeh a “NOTICE DEMANDING 3 KERLY KEOKOMINH AND JANET ZIADEH CEASE AND DESIST FROM SEIZING MY 4 PERSONAL PROPERTY.” (Id. at ¶ 32.) Plaintiff did not receive a response from Keokominh and 5 Ziadeh within the time frame demanded in his cease-and-desist letter. (Id. at ¶ 39.) On October 11, 6 2021, Plaintiff mailed Keokominh and Ziadeh a “NOTICE OF INTENT TO SUE.” (Id. at ¶ 40.) 7 On October 8, 2021, Plaintiff arrived to work seven minutes late due to car troubles. (Id. at 8 34.) Upon arrival, Plaintiff proceeded to look for his designated pouch containing his work supplies, 9 including truck keys and a company phone, before starting his route, but he was unable to locate it. 10 (Id.) Plaintiff sought assistance from Vargas, who informed Plaintiff that he had to “give away” 11 Plaintiff’s route because Plaintiff was late. (Id. at ¶ 35.) When Plaintiff asked Vargas to provide 12 the policy regarding attendance and the “giving away” of assigned routes, Vargas stated that he was 13 busy and that Plaintiff should talk to Eoff. (Id.) 14 Plaintiff then went to Drakaina’s office located at 958 Ryan Avenue, Clovis, California, 15 intending to speak with Eoff regarding Drakaina’s policies. (FAC at ¶ 36.) Plaintiff was greeted by 16 a woman who told him that Eoff was “unavailable” and “out of town.” (Id.) Minutes later, Plaintiff 17 returned a missed call from Eoff, who questioned why Plaintiff had appeared at her home. (Id. at ¶ 18 37.) Plaintiff stated that he was unaware that Drakaina’s office was also Eoff’s home. (Id.) When 19 Plaintiff asked Eoff to provide him with Drakaina’s policy regarding attendance and “giving away” 20 assigned routes, Eoff told him to “[s]hut the fuck up.” (Id.) Plaintiff was then terminated by Eoff 21 without explanation. (Id. at ¶ 38.) 22 Plaintiff names Drakaina, Eoff, Vargas, Keokominh, and Ziadeh (collectively, 23 “Defendants”) as defendants in this action. (FAC at 1.) The FAC asserts claims under 42 U.S.C. § 24 1983 (“section 1983”) for violations of his constitutional rights and under various other federal 25 statutes. (Id. at ¶¶ 42–131.) Plaintiff requests compensatory damages in the amount of 26 $1,500,000.00, punitive damages in the amount of $1,500,000.00, special damages in the amount of 27 $500,000, “relief under 42 U.S.C. § 1983,” and any further relief deemed appropriate by the Court. 28 (Id. at ¶¶ 132–33.) 1 II. DISCUSSION 2 A. Section 1983 Claims 3 1. Legal Standard 4 Section 1983, known as the Civil Rights Act, provides: 5 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be 6 subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 7 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] 8 9 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides 10 ‘a method for vindicating federal rights elsewhere conferred.’ ” Graham v. Connor, 490 U.S. 386, 11 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 12 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 13 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. Warner, 14 451 F.3d 1063, 1067 (9th Cir. 2006). 15 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under 16 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal 17 law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v. Cnty. 18 of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”). With 19 regard to the first element, private parties are not generally acting under color of state law for the 20 purposes of section 1983. Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991) (“Careful 21 adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the 22 reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or 23 officials, responsibility for conduct for which they cannot fairly be blamed.”) (quoting Lugar v. 24 Edmondson Oil Co., 457 U.S. 922, 936–37 (1982)). 25 There exist, however, some circumstances in which the actions of a private actor may render 26 that actor liable under section 1983. Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 954 (9th 27 Cir. 2008) (en banc). Specifically, a plaintiff must show that “the conduct allegedly causing the 28 deprivation of a federal right [was] fairly attributable to the State.” Lugar, 457 U.S. at 937. “The 1 Supreme Court has articulated four tests to determine whether a non-governmental person’s actions 2 amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion 3 test; and (4) the governmental nexus test.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th 4 Cir. 2012) (citation omitted). The “most relevant” of these are the “public function” and “joint 5 action tests,” as these tests “largely subsume” the other two. Naoko Ohno v. Yuko Yasuma, 723 F.3d 6 984, 995 & n.13 (9th Cir. 2013). 7 Under the “public function test,” private individuals or entities may be deemed state actors 8 for purposes of section 1983 when they perform a public function that has been “traditionally the 9 exclusive prerogative of the State.” Rendell–Baker v. Kohn, 457 U.S. 830, 842 (1982) (citations and 10 quotation marks omitted) (emphasis added in Rendell-Baker). “That a private entity performs a 11 function which serves the public does not make its acts state action.” Id. Under the joint action test, 12 a private individual may be liable as a state actor under section 1983 if he or she was part of a 13 conspiracy or was a “willful participant in joint action” with a state actor that caused the 14 constitutional violation. Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). “To prove a conspiracy 15 between private parties and the government under § 1983, an agreement or ‘meeting of the minds’ 16 to violate constitutional rights must be shown.” Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). 17 “To be liable as a co-conspirator, a private defendant must share with the public entity the goal of 18 violating a plaintiff’s constitutional rights.” Franklin, 312 F.3d at 445. “The Ninth Circuit requires 19 a ‘substantial degree of cooperation’ between the government and a private citizen before finding 20 such a conspiracy.” Annan-Yartey v. Honolulu Police Dep’t, 475 F. Supp. 2d 1041, 1046 (D. Haw. 21 2007) (quoting Franklin, 312 F.3d at 445). 22 As for the second element, a person deprives another of a constitutional right, “within the 23 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or omits 24 to perform an act which he is legally required to do that causes the deprivation of which complaint 25 is made.’ ” Preschooler II v. Clark Cnty. Sch. Bd. of Trustees., 479 F.3d 1175, 1183 (9th Cir. 2007) 26 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection 27 may be established when an official sets in motion a ‘series of acts by others which the actor knows 28 or reasonably should know would cause others to inflict’ constitutional harms.” Id. at 1183 (quoting 1 Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 2 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 3 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 4 A plaintiff must also demonstrate that each named defendant personally participated in the 5 deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009). In other words, there 6 must be an actual connection or link between the actions of the defendants and the deprivation 7 alleged to have been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 8 U.S. 658, 691, 695 (1978). 9 2. Plaintiff Has Not Sufficiently Alleged that Defendants Acted Under Color of 10 State Law 11 Plaintiff alleges several section 1983 claims against Defendants for violations of his 12 constitutional rights under the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth 13 Amendments.1 (FAC at ¶¶ 42–83, 124–31.). With regard to Defendants Keokominh and Ziadeh, 14 the FAC indicates that they are “Child Support Representative[s]” but it is unclear which 15 governmental entity they are officers or employees of, if at all. As for Defendants Drakaina, Eoff and 16 Vargas, they are private parties, and the FAC has not alleged sufficient facts establishing that their 17 conduct is fairly attributable to the government. Plaintiff’s conclusory allegations that Defendants 18 “conspired” to deprive him of his various constitutional rights (see, e.g., FAC at ¶¶ 86, 94) are 19 insufficient to demonstrate state action, especially because it is unclear from the FAC if Keokominh and 20 Ziadeh are governmental actors. If Plaintiff chooses to amend his complaint, any claim pursuant to 21 section 1983 should allege facts establishing whether each defendant is a state or private actor and 22 whether any private actor’s conduct is fairly attributable to the government. 23 3. Even Assuming State Action by Defendants, Plaintiff Has Not Sufficiently 24 Alleged Deprivation of a Constitutional Right 25 a. First Amendment 26 Plaintiff alleges that Defendant Eoff “conspired with” Defendants Keokominh and Ziadeh 27
28 1 The Court notes that Plaintiff describes actions taken by Defendants Drakaina and Vargas in the “Statement of Facts” 1 “to abridge Plaintiff’s rights to freedom of speech, and petition the Court regarding the alleged debts, 2 by enforcing an alleged Company Requirement [to withhold his wages].” (FAC at ¶ 44.) The nature 3 of Plaintiff’s First Amendment claim is unclear. There are no allegations regarding how Defendants 4 abridged Plaintiff’s right to free speech or denied Plaintiff access to the courts by garnishing his 5 wages in accordance with the income withholding orders. In fact, the FAC specifically indicates 6 that Defendant Eoff informed Plaintiff of the procedure for challenging those orders, and that 7 “[w]hen [Eoff] receive[d] the paperwork to lift [the] Income Withholding Orders [she would] do so 8 immediately.” (See FAC at ¶¶ 24, 27.) Plaintiff has, therefore, failed to state a claim for violation 9 of the First Amendment. 10 b. Fourth Amendment 11 Plaintiff alleges a violation of his Fourth Amendment rights, specifically that Defendant Eoff 12 “conspired with” Defendants Keokominh and Ziadeh “to seize Plaintiff’s papers without a warrant 13 supported by proper judicial affirmation, by enforcing an alleged Company Requirement [to 14 withhold his wages].” (FAC at ¶ 52.) The Fourth Amendment provides that the right of the people 15 to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 16 shall not be violated. U.S. Const. amend. IV. To establish a viable Fourth Amendment claim, a 17 plaintiff must show not only that there was a search and seizure as contemplated by the Fourth 18 Amendment, but also that said search and seizure was unreasonable and conducted without consent. 19 See Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Rubio, 727 F.2d 786, 796–97 (9th 20 Cir. 1983). 21 Here, there are no allegations in the FAC that Plaintiff was seized or that there was a search 22 so as to implicate the Fourth Amendment. Plaintiff instead alleges that Defendant Eoff’s 23 garnishment of his wages was improper because the income withholding orders bearing Defendants 24 Keokominh’s and Ziadeh’s names are invalid. (FAC at ¶¶ 52, 54.) Accordingly, Plaintiff has failed 25 to state a claim for violation of the Fourth Amendment. 26 c. Fifth and Fourteenth Amendments 27 Plaintiff alleges a violation of his due process rights under the Fifth and Fourteenth 28 Amendments by Defendants Eoff, Keokominh, and Ziadeh. (FAC at ¶¶ 58–66.) “[T]he Fifth 1 Amendment’s due process clause applies only to the federal government.” Bingue v. Prunchak, 512 2 F.3d 1169, 1174 (9th Cir. 2008). As there are no allegations in the FAC that any of the named 3 defendants are federal actors, the Fifth Amendment’s due process clause does not apply. 4 “The due process clause of the Fourteenth Amendment protects two distinct but related 5 rights: procedural due process and substantive due process.” Williams v. Fresno Cnty. Dep’t of Soc. 6 Servs., No. 1:21–CV–00596–DAD–SAB, 2021 WL 3033578, at *6 (E.D. Cal. July 19, 2021), report 7 and recommendation adopted, 2021 WL 4751408 (E.D. Cal. Oct. 12, 2021) (citing Albright v. 8 Oliver, 510 U.S. 266, 272 (1994)). “The Fourteenth Amendment’s Due Process Clause protects 9 persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural 10 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 11 221 (2005). “[P]rocedural due process claims are resolved by balancing tests, where differing 12 interests can give rise to many differing procedural requirements.” Brittain v. Hansen, 451 F.3d 13 982, 1000 (9th Cir. 2006). “(D)ue process is flexible and calls for such procedural protections as 14 the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting 15 Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 16 “The substantive protections of the due process clause bar certain governmental actions 17 regardless of the fairness of the procedures that are used to implement them. Therefore, the 18 substantive protections of the due process clause are intended to prevent government officials from 19 abusing their power or employing it as an instrument of oppression.” Williams, 2021 WL 3033578, 20 at *6 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840, 846 (1998)). The Supreme Court has 21 held that “the substantive component of the Due Process Clause is violated . . . only when [official 22 conduct] ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional 23 sense.’ ” Lewis, 523 U.S. at 847. “[O]nly the most egregious official conduct can be said to be 24 arbitrary in a constitutional sense.” Brittain, 451 F.3d at 990 (quoting Lewis, 523 U.S. at 846). 25 “Substantive due process is ordinarily reserved for those rights that are ‘fundamental.’ ” 26 Brittain, 451 F.3d at 990. “The protections of substantive due process have for the most part been 27 accorded to matters relating to marriage, family, procreation, and the right to bodily integrity,” and 28 the Supreme Court has been reluctant to expand the concept of substantive due process. Albright, 1 510 U.S. at 271–72. To state a substantive due process claim, a plaintiff must “show both a 2 deprivation of [his] liberty and conscience shocking behavior by the government.” Brittain, 451 3 F.3d at 991. 4 Plaintiff’s vague and conclusory allegation that Defendant Eoff “conspired with” Defendants 5 Keokominh and Ziadeh “to deprive Plaintiff of life, liberty, and property, without due process of 6 law and equal protection of the laws, by enforcing an alleged Company Requirement” is insufficient 7 to state a due process claim under the Fourteenth Amendment. It is unclear from the FAC how 8 Plaintiff has been denied due process. The FAC does not identify any specific property or liberty 9 interest, much less allege any “conscience shocking” behavior by Defendants. Thus, Plaintiff fails 10 to state a claim under the Fourteenth Amendment. 11 d. Sixth and Seventh Amendments 12 Plaintiff alleges that Defendants Eoff, Keokominh, and Ziadeh deprived him of his right to 13 a jury trial under the Sixth and Seventh Amendments. (FAC at ¶¶ 67–75.) The Sixth Amendment, 14 which guarantees the right to a jury trial in criminal prosecutions, U.S. Const. amend. VI, does not 15 apply here. The Seventh Amendment provides for the right to a trial by jury at suits in common 16 law. U.S. Const. amend. VII. The Seventh Amendment guarantee “appl[ies] to actions enforcing 17 statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, 18 enforceable in an action for damages in the ordinary courts of law.” Tamosaitis v. URS Inc., 781 19 F.3d 468, 485 (9th Cir. 2015) (quoting Curtis v. Loether, 415 U.S. 189, 194 (1974)). Here, Plaintiff 20 does not provide any allegations to support a claim that he was not afforded a jury trial when he 21 should have been. Thus, Plaintiff fails to state a cognizable claim under the Seventh Amendment. 22 e. Eighth Amendment 23 Plaintiff alleges that Defendants Eoff, Keokominh, and Ziadeh violated his rights under the 24 Eighth Amendment by conspiring to “subject Plaintiff to excessive fines, by enforcing an alleged 25 Company Requirement.” (FAC at ¶ 78.) The Eighth Amendment prohibits excessive bail, fines or 26 cruel and unusual punishment. U.S. Const. amend. VII. These protections were designed to protect 27 those convicted of crimes. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Ingraham v. Wright, 430 28 U.S. 651, 671 n.40 (1977) (The Eighth Amendment applies “only after the State has complied with 1 the constitutional guarantees traditionally associated with criminal prosecutions.”). Based on 2 Plaintiff’s allegations, there is no indication that he is entitled to Eighth Amendment protections. 3 B. Claims Under Federal Criminal Statutes 4 Plaintiff alleges violations of 15 U.S.C. § 645 and 18 U.S.C. §§ 241, 242, 245. (FAC at ¶¶ 5 84–115.) “[T]he fact that a federal statute has been violated and some person harmed does not 6 automatically give rise to a private cause of action in favor of that person.” Touche Ross & Co. v. 7 Redington, 442 U.S. 560, 568 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 677, 688 8 (1979)). Rather, the Court is to consider if Congress intended to create the private right of action in 9 the statute, looking first to the language of the statute. Id. “Civil causes of action . . . do not generally 10 lie under the criminal statutes contained in Title 18 of the United States Code.” Del Elmer; Zachay 11 v. Metzger, 967 F. Supp. 398, 403 (S.D. Cal. 1997). Here, the statutory provisions identified by 12 Plaintiff provide for fines and incarceration for criminal offenses. There is no language in the 13 statutes that would imply a cause of action, allowing Plaintiff to seek a remedy via civil action. See, 14 e.g., Collins v. Plan. Comm’n of City of Madera, Cal., No. 1:10–CV–00430 AWI GSA, 2010 WL 15 2011571, at *6 (E.D. Cal. May 19, 2010), report and recommendation adopted sub nom., 2010 WL 16 2635072 (E.D. Cal. June 29, 2010) (“Plaintiffs cannot state claims pursuant to Title 18 of the United 17 States Code sections 241, 242 and 245.”); Vonne Ray v. Warner, No. SACV1501242JLSDFM, 2015 18 WL 5444491 (C.D. Cal. Sept. 14, 2015) (finding that 18 U.S.C. §§ 241, 242, and 15 U.S.C. § 645 19 “do not provide a basis for civil liability.”) 20 C. Claim Under 31 U.S.C. § 3720D 21 Lastly, Plaintiff alleges a violation of 31 U.S.C. § 3720D (“section 3720D”). (FAC at ¶¶ 22 116–123.) Section 3720D applies to actions taken by “the head of an executive, judicial, or 23 legislative agency that administers a program that gives rise to a delinquent nontax debt owed to the 24 United States.” 31 U.S.C. § 3720D(a). The head of an executive, judicial, or legislative agency, 25 however, may contract with a person for collection service to recover a debt owed to the United 26 States. 31 U.S.C. § 3718. 27 Here, Plaintiff has not alleged that Defendants contracted with the head of an executive, 28 judicial, or legislative agency, or that Defendants are seeking to recover a debt owed to the United 1 States. Indeed, any debt owed appears to be to Fresno and Solano Counties. (See FAC at ¶ 24.) 2 Therefore, Plaintiff has not alleged a cognizable claim under section 3720D. 3 III. CONCLUSION AND ORDER 4 As noted above, the Court will provide Plaintiff with an opportunity to amend his claims and 5 cure, to the extent possible, the identified deficiencies. Lopez, 203 F.3d at 1130. Plaintiff’s second 6 amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what each named defendant 7 did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678–79. 8 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 9 above the speculative level[.]” Twombly, 550 U.S. at 555 (citations omitted). Plaintiff may not 10 change the nature of this suit by adding new, unrelated claims in his second amended complaint. 11 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 12 Finally, Plaintiff is advised that an amended complaint supersedes the prior complaint. 13 Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself 14 without reference to the prior or superseded pleading.” E.D. Cal. Local Rule 220. 15 Based on the foregoing, it is HEREBY ORDERED that: 16 1. Plaintiff is granted leave to file a second amended complaint; and 17 2. Within twenty-one (21) days from the date of service of this order, Plaintiff must file 18 a second amended complaint curing the deficiencies identified by the Court in this 19 order, or a notice of voluntary dismissal. 20 If Plaintiff fails to file an amended complaint in compliance with this order, the undersigned 21 will recommend to the assigned district judge that this action be dismissed for failure to state 22 a claim and to obey a court order. 23 IT IS SO ORDERED. 24
25 Dated: December 30, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26
27 28