Horne v. G4S Security ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL HORNE, Case No. 1:19-cv-01210-LJO-SAB 10 Plaintiff, ORDER STRIKING UNSIGNED COMPLAINT AND DIRECTING 11 v. PLAINTIFF TO FILE LONG FORM APPLICATION TO PROCEED WITHOUT 12 G4S SECURITY, PREPAYMENT OF FEES AND SIGNED COMPLAINT 13 Defendant. (ECF No. 1) 14 THIRTY DAY DEADLINE 15 16 Michael Edward Horne (“Plaintiff”), proceeding pro se, filed an unsigned complaint in 17 this action and a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) 18 A. Motion to Proceed In Forma Pauperis 19 Plaintiff did not pay the filing fee in this action and instead filed an application to proceed 20 in forma pauperis pursuant to 28 U.S.C. § 1915. However, Plaintiff’s application was not 21 adequately completed. Plaintiff indicates that he receives gross wages of $900.00 per month. He 22 also states that he receives other income in the form of rents and disability or worker’s 23 compensation payments but did not indicate the amount that he receives from these sources. 24 Therefore, the Court is unable to determine if Plaintiff is entitled to proceed without prepayment 25 of fees in this matter. 26 Accordingly, the Court will order Plaintiff to complete and file an Application to Proceed 27 in District Court Without Prepaying Fees or Costs (Long Form) – AO 239. If Plaintiff is unwilling to complete and submit the long form application, Plaintiff must pay the filing fee in 1 full. 2 B Unsigned Complaint 3 The complaint that Plaintiff filed is this action is not signed. Unsigned documents cannot 4 be considered by the Court. Fed. R. Civ. P. 11(a); Local Rule 131(b). Plaintiff’s complaint shall 5 be stricken from the record on that ground. 6 To assist Plaintiff in filing his complaint, Plaintiff is provided with the following legal 7 standards. 8 1. Rule 8 Pleading Standard 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain sufficient 14 factual allegations to give the defendant fair notice of the claim and the grounds upon which it 15 rests. Twombly, 550 U.S. at 555. Plaintiff cannot state a claim in this action by merely setting 16 forth his causes of action. 17 Under Twombly and Iqbal “a complaint must contain sufficient factual matter, accepted 18 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. This 19 requires factual content for the court to draw the reasonable inference that the defendant is liable 20 for the alleged misconduct. Id. A complaint stops short of the line between probability and the 21 possibility of relief where the facts pled are merely consistent with a defendant’s liability. Id. 22 Further, while the court is to accept all “well pleaded factual allegations” in the complaint as 23 true, id. at 679, it is not bound to accept as true labels, conclusions, formulaic recitations of the 24 elements of a cause of action or legal conclusions couched as factual allegations, Twombly, 550 25 U.S. at 555. The conclusory allegations in the complaint are not entitled to the presumption of 26 truth. Iqbal, 556 U.S. at 681. 27 Further, a claim for relief must contain a demand for the relief sought. Fed. R. Civ. P. 1 2. Section 1983 2 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 3 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 4 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 5 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 6 Plaintiff is advised that to state a claim under section 1983, he is required to show that (1) 7 each defendant acted under color of state law and (2) each defendant deprived him of rights 8 secured by the Constitution or federal law. Long, 442 F.3d at 1185. There is no respondeat 9 superior liability under section 1983, and therefore, each defendant is only liable for his or her 10 own misconduct. Iqbal, 556 U.S. at 677. To state a claim, Plaintiff must demonstrate that each 11 defendant personally participated in the deprivation of his rights. Jones, 297 F.3d at 934. 12 An individual acts under color of state law under section 1983 where he has “exercised 13 power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed 14 with the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States 15 v. Classic, 313 U.S. 299, 326 (1941)). This does not require that the defendant be an employee 16 of the state, but he must be “a willful participant in joint action with the State or its agents. 17 Private persons, jointly engaged with state officials in the challenged action, are acting see 18 ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 19 (1980). 20 To state a claim, Plaintiff must allege sufficient factual allegations to demonstrate that 21 every named defendant was acting under color of law. 22 3. Supplemental Jurisdiction 23 Where a district court has original jurisdiction, it may exercise supplemental jurisdiction 24 over all claims that are that are so related that they form part of the same case or controversy. 28 25 U.S.C. § 1367(a). The California Government Claims Act requires that a tort claim against a 26 public entity or its employees be presented to the California Victim Compensation and 27 Government Claims Board no more than six months after the cause of action accrues. Cal. Gov’t 1 | rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings County 2 | (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Shirk v. Vista Unified School District, 42 Cal.4th 3 | 201, 209 (2007). To state a tort claim against a public employee, a plaintiff must allege 4 | compliance with the California Tort Claims Act. Cal. Gov’t Code § 950.6; Bodde, 32 Cal.4th at 5 | 1244. “[Flailure to allege facts demonstrating or excusing compliance with the requirement 6 | subjects a compliant to general demurrer for failure to state a cause of action.” Id. at 1239. 7 B. Order 8 Based upon the foregoing, it is HEREBY ORDERED that: 9 1. The Clerk of the Court is DIRECTED to forward an Application to Proceed in 10 District Court Without Prepaying Fees or Costs (Long Form) — AO 239 to 11 Plaintiff; 12 2. Within thirty (30) days of the date of this order, Plaintiff SHALL either (1) pay 13 the $400.00 filing fee for this action, or (2) complete and file the enclosed 14 Application to Proceed in District Court Without Prepaying Fees or Costs (Long 15 Form) — AO 239; 16 3. Plaintiffs complaint is STRICKEN FROM THE RECORD for being unsigned; 17 4. Within thirty days Plaintiff SHALL FILE a signed complaint; 18 5. Plaintiff's complaint may not exceed twenty-five pages in length and must be 19 double spaced using size 12 Times New Roman or similar font; and 20 6. If Plaintiff fails to comply with this order, the Court shall recommend that this 21 action be dismissed for failure to pay the filing fee and failure to comply with a 22 court order. 23 24 IT IS SO ORDERED. F- 2 ee 25 | Dated: _ September 5, 2019 " UNITED STATES MAGISTRATE JUDGE 27 28