(PC) Bland v. State of California ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, No. 2:19-CV-2100-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s second amended complaint, ECF No. 19 30. 20 The Court is required to screen complaints brought by prisoners seeking relief 21 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 23 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 24 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 25 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 27 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 28 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 1 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 2 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 3 with at least some degree of particularity overt acts by specific defendants which support the 4 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 5 impossible for the Court to conduct the screening required by law when the allegations are vague 6 and conclusory. 7 8 I. PLAINTIFF’S ALLEGATIONS 9 Plaintiff names the following as defendants: (1) the State of California; (2) Rob 10 Bonta, State Attorney General for the State of California; (3) Kristen K. Chenelia, Deputy 11 Attorney General; (4) Tami M. Kerzin, Deputy Attorney General; (5) Paul E. O’Connor, Deputy 12 Attorney General; (6) Sarah M. Brattin, Deputy Attorney General; (7) Lucas L. Hennes, Deputy 13 Attorney General; (8) Joanna B. Hood, Deputy Attorney General; (9) Matthew R. Wilson, Deputy 14 Attorney General; (10) Erik A. Gutierrez, Deputy Attorney General; (11) David C. Goodwin, 15 Deputy Attorney General; (12) Andrea R. Sloan, Deputy Attorney General; (13) R. Lawrence 16 Bragg, Deputy Attorney General; and (14) Alan D. Romero, Deputy Attorney General. ECF No. 17 30, pg. 1. Plaintiff alleges two claims. See id. at 2. 18 First, Plaintiff claims: 19 Xavier Becerra via State of California agent (now successor Rob Bonta) had intentionally breach [sic] the contract to which was created to discover 20 how Pltf’s Secure Party/Creditor (SPC) may “pay” debts at law, as SPC is estopped as there is no lawful and good money to “pay” for anything. 21 Said contract contained a “caveat” for which if said presentment was not to be responded to then the State of California via State Attorney General 22 (its authorized agent) fully consents and agrees to all stated therein. 23 Id. 24 Second, Plaintiff alleges an intentional misrepresentation cause of action 25 claiming that none of the deputy attorneys general of California are licensed to practice 26 law. See id. 27 / / / 28 / / / 1 II. DISCUSSION 2 Plaintiff’s complaint fails to state a cognizable cause of action under § 1983. 3 Plaintiff alleges a breach of contract claim and a misrepresentation claim. These claims do not 4 implicate the violation of a federal statutory or constitutional right. 5 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 6 connection or link between the actions of the named defendants and the alleged constitutional or 7 statutory deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. 8 Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional 9 right, within the meaning of § 1983, if he does an affirmative act, participates in another's 10 affirmative acts, or omits to perform an act which he is legally required to do that causes the 11 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 12 Vague and conclusory allegations concerning the involvement of official personnel in civil rights 13 violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 14 Rather, the plaintiff must set forth specific facts as to each individual defendant’s causal role in 15 the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 16 Plaintiff does not allege a constitutional deprivation. Merely mentioning or 17 referencing constitutional clauses tilts at windmills. Plaintiff must provide facts that demonstrate 18 or give rise to a constitutional violation. Plaintiff will be provided an opportunity to amend his 19 complaint to state additional facts to cure this defect. 20 Additionally, accusing all of the deputy attorneys general of a myriad of 21 nonspecific violations is also insufficient. As to each named defendant, Plaintiff must allege 22 which Defendant took what action that caused which specific constitutional violation. 23 Further, the Court takes judicial notice that the deputy attorneys general listed as 24 defendants are in fact licensed to practice law and are currently active members of the California 25 State Bar.1 26 / / / 27 1 The court may take judicial notice pursuant to Federal Rule of Evidence 201 of 28 matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008). 1 III. CONCLUSION 2 Because it is possible that the deficiencies identified in this order may be cured by 3 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 4 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 5 informed that, as a general rule, an amended complaint supersedes the original complaint. See 6 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 7 amend, all claims alleged in the original complaint which are not alleged in the amended 8 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 9 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 10 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 11 complete in itself without reference to any prior pleading. See id. 12 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 13 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 14 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 15 each named defendant is involved, and must set forth some affirmative link or connection 16 between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 17 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Finally, Plaintiff is warned that failure to file an amended complaint within the 19 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 20 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 21 with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 22 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's second amended complaint is dismissed with leave to amend; 3 | and 4 2. Plaintiff shall file a third amended complaint within 30 days of the date of 5 | service of this order. 6 7 || Dated: October 13, 2021 Ssvcqo_ 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28