(PC) Foster v. Newsom ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN LEE FOSTER, No. 2:21-CV-0316-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GAVIN NEWSOM, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s second amended complaint, ECF No. 29. 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PLAINTIFF’S ALLEGATIONS 8 As the only defendant, Plaintiff names Gavin Newsom, the Governor of the State 9 of California. See ECF No. 29, pg. 1. Plaintiff asserts that Defendant Newsom operates an 10 establishment in downtown Sacramento, California, involved in child sexual misconduct akin to 11 the “Bunny Ranch” in the State of Nevada. See id. Plaintiff also attaches a detailed narrative of 12 Plaintiff’s alleged experience in discovering this operation. See id. at 5. Plaintiff states that “the 13 witnessing of the allegations further gives strong cause for the intense harassment in society.” Id. 14 Plaintiff further provides: 15 To support the claims of harassment, I spoke to Lt. Governor Eleni K. about the adversity of officers harassing and targeting [] the Plaintiff in 16 society. Also, to support the claims of harassment is [sic] Instagram, Facebook, and Twitter evidence. It’s also alleged the harassment led to a 17 government “domestic policy.” It’s also alleged that the motives for the harassment influenced my arrest in Case No: 20-225347. 18 It’s alleged that a gray or black extented [sic] S.U.V. occupied by federal 19 agents or investigaters [sic] (older gentlemen) conducted an investigation in society. Those investigaters [sic] were spotted in several locations such 20 as the Sacbee Institution, Tahoe Park area, 14th Avenue’s Talac Village. I, the Plaintiff, occupied a 20’ inch [sic] racing bike during those encounters. 21 Its also alleged in Case No: 2020-225347, that the alleged victim Felipe 22 Jurado knows Governor Gavin Newsom, and may have purposely entered the restroom and created the complaint, leading to I, the Plaintiff’s arrest. 23 Also may have acted or assisted for the benefit of child molesters. 24 Id. at 2. 25 Plaintiff alleges nine (9) injuries: (1) “hurrassment [sic]-thus, caused I, the 26 Plaintiff to move area to area and constintly [sic] shift locations. That movement was 27 unnecessary and caused extreme and agonizing pain due to a severe disability called: psoriatic 28 arthritis and rumatoid [sic] arthritis.”; (2) “hurrassment [sic]-caused family, friends, and people I, 1 need for support, to be afraid to be around me leaving I, the Plaintiff homeless and struggling in 2 society.”; (3) “hurrassment [sic]-terrorized my life causing (PTSD)”; (4) “hurrassment [sic]-being 3 afraid of being hurt or killed. (PTSD)”; (5) “harrassment [sic]-caused a perminate [sic] phobia 4 concerning safety in society. (PTSD)”; (6) “(PTSD)-nightmares of the images of the painting”; 5 (7) “stress-constant worrie [sic] for children being sexually abused”; (8) “stress-constant worrie 6 [sic] for family, friends, and close of kin being hurt, targeted and victimized”; and (9) “cruel 7 unusual punishment-incarcerated in a act of bondage, confined 377 days for ‘demurrer’ in Case 8 No: 20-225347”. See id. at 4. 9 10 II. DISCUSSION 11 The Court has previously advised Plaintiff of several defects concerning his first 12 amended complaint. See ECF No. 27. However, Plaintiff has failed to cure any of those defects. 13 As stated previously in the screening order of Plaintiff’s first amended complaint, “Defendant 14 Newsom is immune from suit to the extent he is sued in his official capacity.” Id. at 2. The 15 Eleventh Amendment bars actions seeking damages from state officials acting in their official 16 capacities. See Eaglesmith v. Ward, 73, F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 17 469, 472 (9th Cir. 1992) (per curiam). There is nothing in Plaintiff’s second amended complaint 18 that resolves this defect. In particular, Plaintiff does not indicate in what capacity Defendant is 19 being sued. 20 Even if the immunity defect was cured, Plaintiff has not established a causal 21 connection between conduct by Defendant Newsom and a violation of rights guaranteed to 22 Plaintiff. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual connection 23 or link between the actions of the named defendant and the alleged deprivations. See Monell v. 24 Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). Because 25 Plaintiff has again failed to establish a causal connection between Defendant Newsom and a 26 violation of rights, Plaintiff’s action should be dismissed for failure to state a claim. 27 / / / 28 / / / 1 I. CONCLUSION 2 Because it does not appear possible that the deficiencies identified herein can be 3 | cured by yet another amended complaint, Plaintiff is not entitled to leave to amend prior to 4 | dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en 5 | banc). 6 Based on the foregoing, the undersigned recommends that: 7 1. This action be dismissed for failure to state a claim; and 8 2. All pending motions, ECF No. 6 and 23, be denied as moot. 9 These findings and recommendations are submitted to the United States District 10 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court. Responses to objections shall be filed within 14 days after service of 13 | objections. Failure to file objections within the specified time may waive the right to appeal. See 14 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 16 | Dated: October 8, 2021 Ssvcqo_ M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28