Manter v. Fresno Police Department ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. MANTER, Case No. 1:19-cv-01070-DAD-EPG 12 Plaintiff, ORDER FOR PLAINTIFF TO: 13 v. (1) FILE A FIRST AMENDED COMPLAINT; OR, 14 FRESNO POLICE DEPARTMENT, et al., 15 (2) NOTIFY THE COURT THAT HE WISHES Defendants. TO STAND ON THE COMPLAINT, 16 SUBJECT TO FINDINGS AND RECOMMENDATIONS TO THE DISTRICT 17 JUDGE CONSISTENT WITH THIS ORDER 18 (ECF No. 1) 19 THIRTY (30) DAY DEADLINE 20 On August 5, 2019, Plaintiff, Michael Manter, appearing pro se and in forma pauperis, 21 commenced this action under 28 U.S.C. § 1983, alleging claims against the Fresno County Police 22 Department and City Hall of Fresno. (ECF No. 1.) The Court has screened the Complaint and has 23 determined that Plaintiff fails to state any cognizable claims.1 24 I. LEGAL STANDARD 25 A. Screening 26 Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma 27 28 1 Plaintiff indicates in his complaint that he has dyslexia and is incapable of reading or writing. However, 1 pauperis, the Court must conduct a review of the complaint to determine whether it “state[s] a 2 claim on which relief may be granted,” is “frivolous or malicious,” or “seek[s] monetary relief 3 against a defendant who is immune from such relief.” If the Court determines that the complaint 4 fails to state a claim, it must be dismissed. Id. An action is frivolous if it is “of little weight or 5 importance: having no basis in law or fact” and malicious if it was filed with the “intention or 6 desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Leave to amend 7 may be granted to the extent that the deficiencies of the complaint can be cured by amendment. 8 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 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)). Plaintiff must set forth “sufficient factual 14 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 663 15 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 16 conclusions are not. Id. at 678. 17 In determining whether a complaint states an actionable claim, the Court must accept the 18 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 19 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. 20 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, Jenkins 21 v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less 22 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 23 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after 24 Iqbal). 25 B. Section 1983 26 The Civil Rights Act under which this action was filed provides: 27 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 28 be subjected, any citizen of the United States or other person within the 1 jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an 2 action at law, suit in equity, or other proper proceeding for redress.... 3 42 U.S.C. § 1983. 4 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 5 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 6 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 7 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 8 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 9 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 10 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 11 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 12 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 13 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 14 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 15 does an affirmative act, participates in another's affirmative act, or omits to perform an act which 16 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 17 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 18 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 19 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 20 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 21 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 22 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 23 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 24 2008). 25 Additionally, a plaintiff must demonstrate that each named defendant personally 26 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must 27 be an actual connection or link between the actions of the defendants and the deprivation alleged 28 to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 1 691, 695 (1978). 2 “Local governing bodies… can be sued directly under § 1983 for monetary, declaratory, 3 or injunctive relief where… the action that is alleged to be unconstitutional implements or 4 executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated 5 by that body’s officers.” Monell, 436 U.S. at 690 (footnote omitted). 6 “Plaintiffs who seek to impose liability on local governments under § 1983 must prove 7 that action pursuant to official municipal policy caused their injury. Official municipal policy 8 includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and 9 practices so persistent and widespread as to practically have the force of law. These are action[s] 10 for which the municipality is actually responsible.” Connick v. Thompson, 563 U.S. 51, 60–61 11 (2011) (internal citations and quotations omitted) (alteration in original). 12 Supervisory personnel are generally not liable under § 1983 for the actions of their 13 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 14 supervisory position, the causal link between him and the claimed constitutional violation must be 15 specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 16 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under 17 § 1983 based on a theory of supervisory liability, a plaintiff must allege some facts that would 18 support a claim that the supervisory defendants either personally participated in the alleged 19 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or 20 promulgated or “implement[ed] a policy so deficient that the policy itself is a repudiation of 21 constitutional rights' and is ‘the moving force of the constitutional violation.” Hansen v. Black, 22 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation marks omitted); Taylor v. List, 23 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own 24 culpable action or inaction in the training, supervision, or control of his subordinates,” “his 25 acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that 26 showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 27 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted). 28 /// 1 II. PLAINTIFF’S ALLEGATIONS 2 The Complaint alleges that Defendants have violated Plaintiff’s First Amendment rights to 3 free exercise of religion, freedom of speech, and petition the government for redress of his 4 grievances; have violated Chapter 73 of Title 18 of the United States Code; have denied Plaintiff 5 his rights under the Sixth Amendment; and have denied Plaintiff his rights under the Equal 6 Protection Clause of the Fourteenth Amendment by exhibiting bias toward Plaintiff on account of 7 race and religion. (ECF No. 1 at 8.) 8 As far as factual allegations, in the section of the Complaint titled “Statement of Claim,” 9 Plaintiff alleges: On July 23rd of 2019, 2.600 Fresno Street Room 1030, City of Fresno, Fresno, 10 CA 93721-3612. I was denied the Right to bring a Partition of Grievance of Redress, First Amendment Right. Obstruction of Justice by Fresno PD. They 11 destroyed evidence July 9th, 2019, 2600 Fresno Street, Room 1030, City of Fresno, Fresno, CA 93721-3612 I was denied my Right to bring Partition of 12 Grievance of Redress, First Amendment Right. The claims filed those days involved Sexual Assault, Assault and Battery, Harassment and Sexual Harassment 13 and Torture for the last 5 years. Hate crimes, abridging my Freedom of Speech, making fun of me for talking about Video Games and stopping me from 14 defending my life, from three Mexicans. Making fun of me for being Christian and making a cure for death. And telling me that being a Christian was like being 15 a Vampire. 16 (ECF No. 1 at 10.)2 17 In the section of the Complaint titled “Amount in Controversy,” Plaintiff alleges: 18 “The harassment has been going on since Keith Foster pointed his gun at me for reporting 19 an officer who threatened to kill me for being a White Boy, estimated around 5 years 20 ago.” (ECF No. 1 at 9. Finally, in the section of the complaint titled “Relief,” Plaintiff 21 alleges the following: 22 On the 4th of August 2019 I have a picture of an officer with an assault rifle harassing me for talking about Video Games, yelling at me, “Whats Your 23 Problem.” I was standing on my Mother’s Property and I told him, “I don’t Know and I’m bringing a Federal Case for cops harassing and torturing me for talking 24 about Video Games”. And I said, “Did you know that cops kill kids?” and he put his hand up in my face and said, “this is where the Conversation ends.” I said, 25 “That’s fine, Have a Good Day.” 26 27 2 Plaintiff also provides as “Evidence” internet website links to what he alleges are “news articles of different 28 officers harassing and sexually harassing and torturing me and photos of officers who sexually assaulted me,” and 1 (ECF No. 1 at 11.) 2 III. DISCUSSION 3 A. Claim for Violation of Chapter 73 Title 18 of the United States Code 4 Plaintiff alleges that Defendants violated Chapter 73 of Title 18 of the United States Code. 5 Title 18 of the United States Code sets out criminal offenses and criminal punishments. See Title 6 18 U.S.C. Ch. 73. Plaintiff, as a private citizen, lacks standing to enforce any violation of these 7 criminal statutes. See Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 278 (2010) (“Our entire 8 criminal justice system is premised on the notion that a criminal prosecution pits the government 9 against the governed, not one private citizen against another.”); Glassey v. Amano Corp., 2006 10 WL 889519, at *3 (N.D. Cal. Mar. 31, 2006) (“Private parties generally lack standing to enforce 11 federal criminal statutes.”), aff'd, 285 Fed. Appx. 426 (9th Cir. 2008). Accordingly, Plaintiff 12 cannot state a cognizable claim for violation of these criminal statutes. 13 B. Claims Against Fresno Police Department and Fresno City Hall 14 “[A] local government may not be sued under § 1983 for an injury inflicted solely by its 15 employees or agents.” Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). 16 Instead, a governmental entity may be held liable under § 1983 only where a policy, practice, or 17 custom of the entity can be shown to be a moving force behind a violation of constitutional rights. 18 Id. (“Instead, it is when execution of a government’s policy or custom, whether made by its 19 lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts 20 the injury that the government as an entity is responsible under § 1983.”). 21 To state a claim for governmental entity liability under § 1983, a plaintiff must allege 22 facts demonstrating “(1) that [the plaintiff] possessed a constitutional right of which he was 23 deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 24 indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving force 25 behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 26 438 (9th Cir. 1997) (internal quotation marks and citation omitted; alterations in original). 27 Plaintiff does not allege facts demonstrating that his constitutional rights were violated; 28 that the Fresno Police Department or Fresno City Hall had a policy or custom that amounts to 1 deliberate indifference to Plaintiff’s constitutional rights, or that the policy or custom was a 2 moving force behind the constitutional violation. Plaintiff has thus failed to state a cognizable § 3 1983 claim against either the Fresno Police Department or Fresno City Hall. 4 IV. LEAVE TO AMEND 5 The Court finds that the Complaint does not state any cognizable claim under § 1983 and 6 is thus subject to dismissal. See Fed. R. Civ. P. 8(a) (complaint must contain a short and plain 7 statement of the claim showing that the pleader is entitled to relief). 8 Under Rule 15(a) of the Federal Rules of Civil Procedure, “leave to amend shall be freely 9 given when justice so requires.” Accordingly, the Court will grant Plaintiff the opportunity to file 10 an amended complaint curing the deficiencies in the Complaint. See Lopez v. Smith, 203 F.3d 11 1122, 1126-30 (9th Cir. 2000). Below, the Court provides some legal standards that might be of 12 assistance to Plaintiff in deciding whether to file an amended complaint. The Court does not 13 know if all of these claims apply to Plaintiff’s situation, but they appear related to what Plaintiff 14 is trying to say. 15 A. First Amendment Right to Free Exercise of Religion 16 The Free Exercise Clause of the First Amendment provides that “Congress shall make no 17 law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” U.S. 18 Const. amend I. 19 To state a claim for violation of the right to the free exercise of religion, a plaintiff must 20 allege facts demonstrating (1) that the defendant acted under color of state law, and (2) that the 21 defendant deprived him of his rights secured by the Free Exercise Clause. 22 A law burdening the exercise of religion generally does not violate the Free Exercise 23 Clause if it is a “neutral law of general application.” San Jose Christian College v. City of 24 Morgan Hill, 360 F.3d 1024, 1030-31 (9th Cir. 2004). If a law is generally applicable “and is not 25 targeted at religion, it is subject only to rational basis scrutiny, even though it may have an 26 incidental effect of burdening religion,” meaning that the law need only be “rationally related to a 27 legitimate governmental interest.” Id. at 1031. If, however, the “law is not neutral or generally 28 applicable, but is directed toward and burdens the free exercise of religion,” the law must meet 1 the strict scrutiny test, meaning that the law must be “narrowly tailored to advance a compelling 2 government interest.” Id. A law lacks neutrality if either the text of the law or the operation of the 3 law targets a specific religious group or practice. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1130- 4 31 (9th Cir. 2009). 5 B. First Amendment Right of Freedom of Speech 6 The Freedom of Speech Clause of the First Amendment provides that “Congress shall 7 make no law . . . abridging the freedom of speech. . . .” U.S. Const. amend. I. 8 To state a claim for a violation of the First Amendment Freedom of Speech Clause, a 9 plaintiff must allege facts demonstrating that the defendant’s actions “deterred or chilled” the 10 plaintiff’s protected speech and that “such deterrence was a substantial or motivating factor” in 11 the defendant’s conduct. Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 12 1999). 13 To state a claim for retaliation in violation of the First Amendment, a plaintiff must allege 14 facts demonstrating (1) that the plaintiff engaged in constitutionally protected activity, (2) that 15 “the defendant’s actions would chill a person of ordinary firmness from continuing to engage in 16 the protected activity,” and (3) that “the protected activity was a substantial or motivating factor 17 in the defendant’s conduct.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 18 2006). “If the plaintiff establishes the elements of a retaliation claim, the government can escape 19 liability by showing that it would have taken the same action even in the absence of the protected 20 conduct.” Id. (internal quotations and citations omitted). 21 C. First Amendment Right to Petition Government for Redress of Grievances 22 The Petition Clause of the First Amendment provides that “Congress shall make no 23 law . . . abridging . . . the right of the people . . . to petition the Government for a redress of 24 grievances.” U.S. Const. amend. I. 25 A plaintiff may state a claim for violation of the First Amendment right to petition the 26 government by alleging facts demonstrating either that a government actor directly interfered 27 with the plaintiff’s right to present a grievance, or that a government actor imposed restrictions on 28 the plaintiff’s ability to present a grievance that had a “chilling effect” on the citizen’s exercise of 1 that right. See O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir.1996) (citing Laird v. Tatum, 2 408 U.S. 1, 11 (1972)). “Further, an unconstitutional chill will only exist if the government action 3 has injured the individual or places the individual in immediate danger of sustaining a direct 4 injury.” Id. Thus, a plaintiff must also allege facts demonstrating that he was actually injured as a 5 result of the government actor’s conduct or that the conduct placed the plaintiff in immediate 6 danger of sustaining a direct injury. Id. 7 D. Substantive Due Process: Conduct that Shocks the Conscience 8 “In Rochin v. California, [342 U.S. 165, 169 (1952),] the Supreme Court held that some 9 conduct by governmental officials ‘offends those canons of decency and fairness which express 10 the notions of justice of English-speaking peoples.’” Fontana v. Haskin, 262 F.3d 871, 881 (9th 11 Cir. 2001). “Since then, behavior by officials that ‘shocks the conscience’ has been held to 12 deprive liberty in violation of the due process clause of the Fourteenth Amendment.” Id. “Under 13 the Fourteenth Amendment’s substantive due process prong, we use the ‘shocks the conscience’ 14 test.” Id. at 881 n.7. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). “The 15 threshold question is ‘whether the behavior of the governmental officer is so egregious, so 16 outrageous, that it may fairly be said to shock the contemporary conscience.’” Id. (quoting County 17 of Sacramento, 523 U.S. at 848 n.8). 18 However, where a specific constitutional right provides a source of protection against 19 certain types of governmental conduct, claims alleging such conduct must be analyzed as a 20 violation of the specific constitutional right rather than as a violation of the more generalized right 21 to substantive due process. Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996). Thus, as 22 discussed next, if the conduct at issue occurred during a seizure of the plaintiff by a governmental 23 actor, the claim must be brought under the Fourth Amendment. 24 E. Fourth Amendment 25 Where a plaintiff has been seized by the police, a claim of inappropriate conduct by an 26 officer, such as harassment or sexual assault, “is better seen as a Fourth Amendment claim.” 27 Fontana , 262 F.3d at 881 & n.6 (citing Reed v. Hoy, 909 F.2d 324, 329 (9th Cir. 1990) 28 (“[C]laims arising before or during arrest are to be analyzed exclusively under the [F]ourth 1 [A]mendment’s reasonableness standard rather than the substantive due process standard. . . .”). 2 Thus, for example, “sexual harassment by a police officer of a criminal suspect during a 3 continuing seizure is analyzed under the Fourth Amendment” rather than under the due process 4 clause of the Fourteenth Amendment. Id. at 881-82. 5 Assessing the Constitutionality of police action during a seizure involves “a careful balancing of ‘the nature and quality of the intrusion on the individual's 6 Fourth Amendment interests' against the countervailing governmental interests at stake.” In traditional excessive force cases, we consider the severity of the crime 7 at issue, the threat that the suspect poses to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting flight. Although the 8 excessive force test is a useful analog, it is not directly applicable to assess the type of behavior alleged in this case, because there can be no “countervailing 9 governmental interest” to justify sexual misconduct. “[W]here there is no need for force, any force used is constitutionally unreasonable.” Of course, not every 10 truthful allegation of sexual bodily intrusion during an arrest is actionable as a violation of the Fourth Amendment. Some bodily intrusions may be provably 11 accidental or de minimis and thus constitutionally reasonable. However, we need not define the precise contours of the bodily intrusion test under the Fourth 12 Amendment, because if the facts are as [the plaintiff] has alleged, this case involved an unreasonable seizure. 13 Gratuitous and completely unnecessary acts of violence by the police during a seizure violate the Fourth Amendment.” Id. at 880 (citing McDowell v. Rogers, 14 863 F.2d 1302, 1307 (6th Cir.1988) (“[O]ur court has repeatedly found that a totally gratuitous blow with a policeman’s nightstick may cross the constitutional 15 line, and ... we do not believe that a serious or permanent injury is a prerequisite to a claim under Section 1983.” (internal quotation marks and citations omitted)); 16 cf. P.B. v. Koch, 96 F.3d 1298, 1303 n. 4 (9th Cir.1996) (finding that if the Fourth Amendment did govern, a high school principal's arbitrary assaults on his students 17 were objectively unreasonable “since there was no need for force”). 18 Fontana, 262 F.3d at 880 (some citations omitted). 19 F. Sixth Amendment 20 The Sixth Amendment provides: 21 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, 22 which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to 23 have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 24 U.S. Const. amend VI. 25 To bring a civil action for damages for violation of the Sixth Amendment, a plaintiff must 26 first allege facts demonstrating that he was subjected to a criminal prosecution and that either the 27 prosecution terminated in his favor or his conviction has been overturned. See Heck v. Humphrey, 28 1 512 U.S. 477, 486-87 (1994) (To recover damages for “harm caused by actions whose 2 unlawfulness would render a conviction or sentence invalid,” a § 1983 plaintiff must prove that 3 the conviction or sentence was reversed, expunged, or otherwise invalidated.); Valdez v. 4 Rosenbaum, 302 F.3d 1039, 1049 (9th Cir. 2002) (Sixth Amendment claim not cognizable in civil 5 rights action because the claim would necessarily imply the invalidity of the plaintiff’s 6 conviction; Sixth Amendment claim must instead be asserted in a petition for writ of habeas 7 corpus). 8 Second, a plaintiff must allege facts demonstrating that he was denied of one or more of 9 his rights under the Sixth Amendment—to a speedy and public trial, to an impartial jury of the 10 State and district where the crime was committed, to be informed of the nature and cause of the 11 accusation, to confront the witnesses against him, to compulsory process for obtaining witnesses 12 in his favor, or to the assistance of counsel for his defense. See U.S. Const. amend VI. 13 G. Equal Protection 14 “‘To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause 15 of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or 16 purpose to discriminate against the plaintiff based upon [plaintiff’s] membership in a protected 17 class.’” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. 18 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). “Where the governmental action is ‘facially 19 neutral,’ proof of its disproportionate impact on an identifiable group can satisfy the intent 20 requirement only if it tends to show that some invidious or discriminatory purpose underlies the 21 policy.” Id. (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-66 22 (1977)). An equal protection claim can be brought by a “‘class of one,’ where the plaintiff alleges 23 that []he has been intentionally treated differently from others similarly situated and that there is 24 no rational basis for the difference in treatment.” Id. 25 V. CONCLUSION AND ORDER 26 The Court finds that the Complaint fails to state any cognizable claims under § 1983 upon 27 which relief may be granted. Under Rule 15(a) of the Federal Rules of Civil Procedure, “leave to 28 amend shall be freely given when justice so requires.” Accordingly, the Court provides Plaintiff 1 with time to file an amended complaint curing the deficiencies identified above. See Lopez v. 2 Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended 3 complaint within thirty (30) days, if he chooses to do so. 4 Plaintiff should note that although he has been given the opportunity to amend, it is not for 5 the purpose of changing the nature of this lawsuit or adding unrelated claims. See George v. 6 Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 7 Plaintiff is advised that an amended complaint supersedes the original complaint, see 8 Lacey v. Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and must be 9 complete in itself without reference to the prior or superseded pleading, see Local Rule 220. 10 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 11 of each defendant must be sufficiently alleged. The amended complaint should be clearly and 12 boldly titled “First Amended Complaint,” refer to the appropriate case number, and be an original 13 signed under penalty of perjury. 14 Plaintiff may also choose to stand on the Complaint, in which case the Court will issue 15 findings and recommendations to the assigned district court judge recommending that the case be 16 dismissed for failure to state a claim. 17 Based on the foregoing, it is HEREBY ORDERED that: 18 1. Plaintiff may file a First Amended Complaint curing the deficiencies identified by the 19 Court in this order if he believes additional true factual allegations would state a claim, within 20 thirty (30) days from the date of service of this order; 21 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the amended 22 complaint “First Amended Complaint” and refer to the case number 1:19-cv-01070-DAD-EPG; 23 3. Alternatively, within thirty (30) days from the date of service of this order, Plaintiff 24 may notify the Court that he wishes to stand on the Complaint, subject to this Court issuing 25 findings and recommendations to the assigned district court judge recommending that the case be 26 dismissed for failure to state a claim; and 27 4. If Plaintiff fails to file an amended complaint or notify the Court that he wishes to 28 stand on the Complaint within thirty (30) days from the date of service of this order, the Court 1 | will issue findings and recommendations to the assigned district court judge recommending that 2 | the case be dismissed for failure to state a claim and failure to comply with a Court order. 3 4 IT IS SO ORDERED. S| Dated: _ October 11, 2019 [Jee ey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28