Williams v. Carrillo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PRINCE PAUL RAYMOND WILLIAMS, Case No. 1:21-cv-01659-DAD-EPG 12 Plaintiff, SCREENING ORDER 13 v. ORDER FOR PLAINTIFF TO: 14 BAZALEEL CARRILLO, et al., (1) FILE A FIRST AMENDED COMPLAINT; OR 15 Defendants. (2) NOTIFY THE COURT THAT HE 16 WISHES TO STAND ON HIS COMPLAINT 17 (ECF No. 1) 18 THIRTY-DAY DEADLINE 19 20 Plaintiff Prince Paul Raymond Williams is proceeding pro se and in forma pauperis in 21 this action. Plaintiff filed his complaint on November 17, 2021. (ECF No. 1). Upon review, the 22 Court concludes that the complaint fails to state any cognizable claims. 23 Plaintiff now has the following options as to how to proceed. Plaintiff may file an 24 amended complaint, which the Court will screen in due course. Or Plaintiff may file a statement 25 with the Court saying that he wants to stand on this complaint and have it reviewed by the 26 assigned district judge, in which case the Court will issue findings and recommendations to the 27 district judge consistent with this order. If Plaintiff does not file anything, the Court will recommend that the case be dismissed. 28 1 I. SCREENING REQUIREMENT 2 As Plaintiff is proceeding in forma pauperis, the Court screens this complaint under 28 3 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 4 the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 5 A complaint is required to contain “a short and plain statement of the claim showing that 6 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 11 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 12 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 13 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 14 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 15 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 16 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 17 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 18 pro se complaints should continue to be liberally construed after Iqbal). 19 II. SUMMARY OF PLAINTIFF’S COMPLAINT 20 In the title of his complaint, Plaintiff identifies four Defendants: (1) Bazaleel Carrillo; (2) 21 Javier Rivera; (3) Margaret Mims; and (4) Raul Cervantez. (ECF No. 1, p. 1). Plaintiff’s 22 complaint is thirty-six pages long (including exhibits) and states that this action is brought 23 pursuant to: the 1st, 4th, 5th, 6th, 7th, 8th, and 14th Amendments; and further under 18 U.S.C. 24 § 1503; 18 U.S.C. § 1512; ArtI.S9.C3.1; 25 CFR § 11.448; 18 U.S.C. § 1951; 18 25 U.S.C. § 1581; 42 U.S.C. § 1994; 15 U.S.C. § 1692; ArtVI.C2.1.l.3; 5 U.S.C. § 3331; Intentional Infliction of Emotional Distress Tort; Negligence Tort; 18 U.S.C. 26 § 241; 18 U.S.C. § 242; 18 U.S.C. § 245; and 42 U.S.C. § 1983. 27 (Id. at 3). Subject matter jurisdiction is based on both federal question and diversity of citizenship 28 under 28 U.S.C. §§ 1331, 1332. (Id.). 1 For his factual allegations, Plaintiff states that he began working as a warehouse associate 2 on January 4, 2021. (Id. at 4). On February 1, 2021, he received an email with two documents, 3 both labeled “income withholding for support.”1 One document stated that $413 would be 4 withheld per month for current and past due child support and the other $30 per month for past due child support. (Id. at 4, 31, 34). 5 On February 23, 2021, at 8 a.m., Plaintiff made a special appearance to petition the Court 6 for relief in Case No. 11CEFL0l829 Raenna Johnson v. Prince Paul Raymond Williams and Case 7 No. 14CEFS0l741County of Fresno v. Prince Paul Raymond Williams. (Id. at 4). Commissioner 8 Jennifer Leigh Hamilton called the matters at around 8:30 a.m. (Id. at 5). Plaintiff “requested the 9 Court establish either Article I or Article III jurisdiction, and provide its delegation of authority” 10 but his “requests were ignored.” (Id.). Around 8:35 a.m., “without providing judicial reasoning, 11 Commissioner Hamilton asked Plaintiff to leave the courtroom.” (Id.). “Plaintiff, exercise[ed] his 12 1st, 4th, 5th, 6th, 7th, 8th, and 14th Amendment rights secured under the Constitution and laws of 13 the United States, refused, as he was peacefully petitioning the Court regarding two separate 14 alleged accounts of debt owed to the State Disbursement Unit.” (Id.). 15 At around 8:40, Defendant Carrillo “attempted to take Plaintiff’s phone from his hand.” 16 (Id.). Defendants Cervantez and Rivera “then entered the courtroom.” (Id.). “Under color of law,” 17 Defendants Carrillo, Cervantez, and Rivera “surrounded and intimidated Plaintiff, forcing him to 18 leave the courthouse.” (Id.). At around 8:45 a.m. Plaintiff tried to reenter the courthouse, but 19 Defendant Rivera denied him access, stating, “You’re done, dude.” (Id.). 20 The complaint states the following in connection with Plaintiff’s child support obligation: 21 Defendants’ Program Requirement is enforced by a local Child Support Enforcement [CSE] Agency, not a Court. Defendants’ Program Requirement does 22 not contain a signature by a judge of competent jurisdiction. Defendants are sheriffs using intimidation to defraud Plaintiff by enforcement of a Program 23 Requirement, a work-performance contract, through wage garnishments in exchange for his labor as a means of enrichment for the State Disbursement Unit. 24 Plaintiff suffered termination of employment due to providing complaints 25 regarding wage garnishments and possible violations of the statutes or laws, and homelessness as a direct and proximate result of Defendants’ actions. Under color 26 of law, Defendants conspired to use intimidation to deprive Plaintiff of privileges, 27 1 Minor alterations, such as omitting capitalization and correcting misspellings, have been made to 28 Plaintiff’s quoted statements without indicating each specific change. 1 rights, and immunities secured to him under the Constitution and the laws of the United States, including denying Plaintiff access to the Court in his defense. 2 (Id. at 5-6). Plaintiff seeks “to recover compensatory damages, punitive and exemplary damages.” 3 (Id. at 6). The complaint concludes by listing eighteen counts for relief, each one incorporating by 4 reference all the prior paragraphs. (See id. at 27 (“Plaintiff repeats and realleges by reference 5 every allegation contained hereinabove and incorporates the same herein as though fully set forth 6 herein.”)). Moreover, almost every count contains a conclusory reference to Defendants violating 7 the respective right alleged without any attempt to explain specifically what each Defendant did 8 to violate the right. (See id. at 26 (“Defendants did not exercise reasonable care to prevent an 9 injury of Plaintiff’s right to free exercise and enjoyment of liberties afforded to him under the 10 Constitution and did not exercise reasonable care to rescind the Program Requirement, even after 11 Plaintiff’s repeated opposition to it.”). 12 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 13 A. Pleading Standards 14 As set forth above, Rule 8(a) requires “a short and plain statement of the claim showing 15 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must contain “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 16 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Moreover, Plaintiff must 17 demonstrate that each named defendant personally participated in the deprivation of his 18 rights. Iqbal, 556 U.S. at 676-77. 19 A court may dismiss a complaint for failure to comply with Rule 8(a) if it is “verbose, 20 confusing and conclusory.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981); 21 Brosnahan v. Caliber Home Loans, Inc., 765 F. App’x 173, 174 (9th Cir. 2019). Additionally, a 22 court may dismiss a complaint for failure to comply with Rule 8(a) if it is “argumentative, prolix, 23 replete with redundancy, and largely irrelevant.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 24 1996). 25 Plaintiff’s complaint violates Rule 8(a). The allegations in the complaint are confusing 26 and unclear, making it difficult for the Court to determine what, if any, cognizable claims are 27 included in the complaint. Although the Federal Rules employ a flexible pleading policy, Plaintiff 28 1 must give fair notice to the Defendants and must allege facts that support the elements of the 2 claim plainly and succinctly. See Tolliver v. County of Sacramento, No. 2:19-cv-02599-CKD P, 3 2021 WL 2941565, at *2 (E.D. Cal. July 13, 2021) (“The court is required to liberally construe 4 pro se pleadings, but it is not required to draft those pleadings.”). Plaintiff’s failings generally fall within three categories: (1) the identity of the defendants and his claims against them; (2) the 5 articulation of the claims; and (3) the needless redundancy in the complaint. 6 First, it is unclear which defendants Plaintiff intends to name. While he names four 7 individual Defendants (Carrillo, Rivera, Mims, and Cervantez), his allegations appear to indicate 8 that there are more persons he wishes to sue. See Fed. R. Civ. P. 10(a) (requiring the complaint to 9 name all the parties in the title). For example, Plaintiff states that “Defendants are sheriffs,” (ECF 10 No. 1, p. 5), but also says that “Defendants maintain facilities and business operations in this 11 District,” (id. at 3), and includes allegations against “management-level employees” (id. at 23) in 12 his causes of action. Moreover, Plaintiff fails to identify what each Defendant specifically did in 13 violating his rights. For example, in his second claim, which alleges a Fourth Amendment 14 violation, Plaintiff states that “Defendants did not exercise reasonable care to prevent seizing 15 Plaintiff’s papers without a warrant supported by proper judicial affirmation and did not exercise 16 reasonable care to rescind the Program Requirement, even after Plaintiff’s repeated opposition to 17 it.” (Id. at 8). Thus, “Plaintiff’s Complaint fails to satisfy the requirements of Rule 8 because it 18 does not put each individual Defendant on notice of . . . [what] the Defendant is liable for, and 19 why.” Altheide v. De Guzman, 2013 WL 5315571, at *5 (C.D. Cal. Sept. 20, 2013) (prisoner 20 civil-rights action brought under section 1983). 21 Second, Plaintiff does not sufficiently articulate his claims. The complaint cites a variety 22 of state and federal statutes, constitutional provisions, and state law torts. While Plaintiff 23 separately lists each claim, each offers only a “formulaic recitation” of Plaintiff’s proffered cause of action. Twombly, 550 U.S. at 555. For example, in his fifth claim, which alleges an Eighth 24 Amendment violation, Plaintiff states the Eighth Amendment prohibits excessive fines and then 25 summarily alleges that “Defendants did not exercise reasonable care to prevent subjecting 26 Plaintiff to excessive fines and did not exercise reasonable care to rescind the Program 27 Requirement, even after Plaintiff's repeated opposition to it.” (ECF No. 1, p. 11). Plaintiff, 28 1 apparently complaining about his child support obligation, fails to explain how it constitutes “a 2 fine,” how it is “excessive” (if it is a fine), and how Defendants are “imposing” the obligation on 3 him. 4 The requirement of a clear and plain statement of Plaintiff’s claims is especially important in this case because this Court does not serve as an appellate court of state court decisions. If 5 Plaintiff wishes to challenge a decision from a state court regarding child support, he must pursue 6 the appropriate procedures in state court (which may be subject to time limitations and other 7 rules). 8 Third, Plaintiff complaint is needlessly redundant. Plaintiff’s complaint is thirty-six pages 9 long (including exhibits) with most of the length stemming from redundancies. Notably, 10 Plaintiff’s complaint is an example of a shotgun pleading, repeatedly incorporating all preceding 11 paragraphs by reference—which have been found to violate Rule 8. Weiland v. Palm Beach Cty. 12 Sheriff’s Off., 792 F.3d 1313, 1321 (11th Cir. 2015) (“The most common type [of shotgun 13 pleading]—by a long shot—is a complaint containing multiple counts where each count adopts 14 the allegations of all preceding counts, causing each successive count to carry all that came before 15 and the last count to be a combination of the entire complaint.”); Deerpoint Grp., Inc. v. 16 Agrigenix, LLC, 345 F. Supp. 3d 1207, 1234 n.15 (E.D. Cal. 2018) (“It is true that Paragraph 144 17 incorporates by reference Paragraphs 1 to 143. However, incorporating literally all 143 preceding 18 paragraphs, without specific reference to either disparagement or Paragraph 81, does not give 19 Defendants (or the Court) fair notice of the factual bases of the IIPEA claim.” (citing Weiland, 20 792 F.3d at 1321-23)). Additionally, Plaintiff often repeats the same allegations throughout his 21 claims, without any apparent consideration as to whether these allegations are appropriate given 22 the differing legal bases for his claims. For example, Plaintiff repeatedly alleges within his claims 23 that “Deputy Sheriffs and management-level employees knew or should have known, of the Program Requirement, and the abridgment upon Plaintiff’s rights in relation thereto,” without 24 attempting to tailor this statement to the legal elements of the cause of action at issue. (ECF No. 25 1, p. 15). 26 In light of these deficiencies, the Court will grant Plaintiff leave to amend his complaint 27 so that he can state his claims more clearly. If Plaintiff chooses to amend his complaint, he must 28 1 allege facts and a cause of action that outlines his claims. Simply listing the parties and providing 2 unclear recitations of legal terms and statutory provisions is not sufficient. 3 B. Legal Standards 4 In the event Plaintiff amends his complaint, the Court provides the following legal standards which may be relevant to his action: 5 1. Federal Subject Matter Jurisdiction 6 Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to 7 that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Federal courts are 8 presumptively without jurisdiction over civil actions, and the burden to establish the contrary 9 rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 10 (1994). Generally, there are two bases for subject matter jurisdiction: federal question jurisdiction 11 and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. 12 Pursuant to 28 U.S.C. § 1331, federal district courts have federal question jurisdiction 13 over “all civil actions arising under the Constitution, laws, or treaties of the United States.” “A 14 case ‘arises under’ federal law either where federal law creates the cause of action or ‘where the 15 vindication of a right under state law necessarily turn[s] on some construction of federal law.” 16 Republican Party of Guam v. Gutierrez, 277 F.3d 1086, 1088–89 (9th Cir. 2002) (quoting 17 Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–9 (1983)). The 18 presence or absence of federal question jurisdiction is governed by the “well-pleaded complaint 19 rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this rule, “federal 20 jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly 21 pleaded complaint.” Id. 22 Pursuant to 28 U.S.C. § 1332, federal district courts have diversity jurisdiction over civil 23 actions “where the matter in controversy exceeds the sum or value of $75,000,” and where the matter is between “citizens of different states.” 28 U.S.C. § 1332(a)(1). 24 The complaint states that federal question and diversity jurisdiction both exist in this 25 action. As to federal question jurisdiction, although the complaint cites to various federal statutes, 26 it is not clear, for the reasons given above, which, if any, of these references are intended to allege 27 a claim against the named Defendants and what the factual bases of those claims may be. As to 28 1 diversity jurisdiction, Plaintiff alleges that he and all Defendants are citizens of California. (ECF 2 No. 1, p. 4). Therefore, there is no diversity of citizenship. If Plaintiff elects to amend his 3 complaint, he must allege facts establishing the existence of subject matter jurisdiction to proceed 4 in federal court. 2. Section 1983 5 The complaint is brought, in part, under 42 U.S.C. § 1983. (Id. at 27). Section 1983, 6 known as the Civil Rights Act, provides: 7 Every person who, under color of any statute, ordinance, regulation, 8 custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the 9 United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 10 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 11 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 12 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 13 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 14 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 15 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 16 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 17 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 18 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 19 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 20 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 21 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 22 does an affirmative act, participates in another's affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 23 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 24 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 25 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 26 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 27 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 28 1 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 2 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 3 2008). 4 Additionally, a plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must 5 be an actual connection or link between the actions of the defendants and the deprivation alleged 6 to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 7 691, 695 (1978). 8 Supervisory personnel are generally not liable under § 1983 for the actions of their 9 employees under a theory of respondeat superior and, therefore, when a named defendant holds a 10 supervisory position, the causal link between him and the claimed constitutional violation must be 11 specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 12 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief under 13 § 1983 based on a theory of supervisory liability, a plaintiff must allege some facts that would 14 support a claim that the supervisory defendants either personally participated in the alleged 15 deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or 16 promulgated or “implement[ed] a policy so deficient that the policy itself is a repudiation of 17 constitutional rights’ and is ‘the moving force of the constitutional violation.” Hansen v. Black, 18 885 F.2d 642, 646 (9th Cir. 1989) (citations and internal quotation marks omitted); Taylor v. List, 19 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own 20 culpable action or inaction in the training, supervision, or control of his subordinates,” “his 21 acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that 22 showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 23 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted). 3. The Rooker-Feldman Doctrine 24 Under the Rooker-Feldman doctrine, a party may not seek appellate review in federal 25 court of a decision made by a state court. See Rooker v. Fidelity Trust Co., 263 U.S. 413 26 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Typically, the Rooker- 27 Feldman doctrine bars federal courts from exercising subject-matter jurisdiction over a 28 1 proceeding in which a party losing in state court seeks what in substance would be appellate 2 review of the state judgment in a United States district court, based on the losing party’s claim 3 that the state judgment itself violates the losers’ federal rights. Doe v. Mann, 415 F.3d 1038, 4 1041-42 (9th Cir. 2005); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 5 284 (2005) (the Rooker-Feldman doctrine precludes a district court from appellate review of 6 “cases brought by state-court losers complaining of injuries caused by state-court judgments 7 rendered before the district court proceeding commenced[.]”). Accordingly, the district court 8 lacks jurisdiction over “claims . . . ‘inextricably intertwined’ with the state court’s decision such 9 that the adjudication of the federal claims would undercut the state ruling.” Bianchi v. 10 Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003) (citing Feldman, 460 U.S. at 483, 485); see, 11 e.g., Moore v. County of Butte, 547 Fed. Appx. 826, 829 (9th Cir. 2013) (finding a plaintiff's claims challenging the outcome of custody proceedings were properly dismissed); Rucker v. 12 County of Santa Clara, State of California, 2003 WL 21440151, at *2 (N.D. Cal. June 17, 2003) 13 (finding the plaintiff’s claims were “inextricably intertwined” with the state court’s rulings where 14 the plaintiff “challenge[d] his original child support order on jurisdictional grounds, dispute[d] his 15 total child support arrearages, and allege[d] that Santa Clara County’s garnishment order against 16 his disability benefits payments is invalid”); see also Ignacio v. Judges of U.S. Court of Appeals, 17 453 F.3d 1160, 1165-66 (9th Cir. 2006) (affirming the district court’s dismissal of the case 18 “because the complaint is nothing more than another attack on the California superior court’s 19 determination in [the plaintiff’s] domestic case”). 20 To the extent Plaintiff is asking this Court to review the child support and wage and 21 garnishment orders issued by the state court, under the Rooker-Feldman doctrine, this Court lacks 22 jurisdiction to review and reverse a state court’s decision. Accordingly, any claim seeking to 23 reverse the state court orders cannot proceed in this Court. 24 4. State Law Claims 25 Before a person can sue a public entity or public employee for money damages, he or she 26 must first file a claim pursuant to California’s Government Claims Act, codified at California 27 Government Code section 810 et seq.; Briggs v. Lawrence, 230 Cal.App.3d 605, 613; Cal. 28 1 Gov’t.Code §§ 950.2, 950.6. The government claim must be filed or presented not later than six 2 months after the cause of action accrues if it relates to death or for injury to person or to personal 3 property, or not later than one year after accrual for any other cause of action. Cal. Gov’t code 4 § 911.2 (a). A plaintiff asserting a claim that is subject to the CTCA must affirmatively allege in his 5 complaint that he complied with the CTCA’s claims presentation procedure or circumstances 6 excusing such compliance. See Shirk, 64 Cal. Rptr. 3d at 216; State of California v. Superior 7 Court (Bodde), 13 Cal. Rptr. 3d 534, 541 (2004) (plaintiff must allege facts “demonstrating or 8 excusing compliance with the claim presentation requirement”). Compliance “is mandatory and 9 failure to file a claim is fatal to the cause of action.” City of San Jose v. Superior Court, 115 Cal. 10 Rptr. 797, 802 (1974) (internal citation omitted). The requirement to affirmatively allege facts 11 demonstrating or excusing compliance with the Act’s claims presentation requirement applies in 12 federal court. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). 13 Here, Plaintiff is asserting various state law claims, such as negligence, seeking to recover 14 money damages from what appears to be public employees. See Jack v. Pearson, No. 1:17-CV- 15 0520 AWI SAB, 2018 WL 1567796, at *3 (E.D. Cal. Mar. 30, 2018) (dismissing negligence 16 claims for failure to allege compliance with the Government Claims Act). If Plaintiff amends his 17 complaint, he should allege facts demonstrating he complied with the Act or was excused from 18 compliance. 19 IV. CONCLUSION AND ORDER 20 The Court has screened Plaintiff’s complaint and finds that it fails to state any cognizable 21 claim. 22 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give 23 leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with time to file an amended complaint, so that Plaintiff can provide additional factual allegations. 24 Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an 25 amended complaint within thirty days. 26 If Plaintiff chooses to amend his complaint, in his amended complaint he must state what 27 each named defendant did that led to the deprivation of his constitutional or other federal rights. 28 1 | Fed. R. Civ. P. 8(a); Igbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 2 Plaintiff should note that although he has been given the opportunity to amend, it is not for 3 | the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith, 507 4 | F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 5 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v. 6 Maricopa County, 693 F 3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in 7 itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an 8 amended complaint, as in an original complaint, each claim and the involvement of each 9 Defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed 8 under penalty of perjury. Plaintiff's first amended complaint must be no longer than twenty-five pages, including exhibits. 2 Plaintiff has a choice on how to proceed. Plaintiff may file an amended complaint if he 13 believes that additional true factual allegations would state cognizable claims. If Plaintiff files an amended complaint, the Court will screen that complaint in due course. Alternatively, Plaintiff 15 may choose to stand on his complaint subject to the Court issuing findings and recommendations 16 | toa district judge consistent with this order. 17 Based on the foregoing, IT IS ORDERED that: 18 1. Within thirty (30) days from the date of service of this order, Plaintiff shall either: 19 a. File a First Amended Complaint; or 20 b. Notify the Court in writing that he wants to stand on this complaint; 1 2. If Plaintiff chooses to file an amended complaint, Plaintiff shall caption the 2 amended complaint “First Amended Complaint” and refer to case number 1:21-cv- 23 01659-DAD-EPG; and 3. Failure to comply with this order may result in the dismissal of this action. 25 | IT IS SO ORDERED. *° | Dated: _ December 10,2021 [Je heey — 27 UNITED STATES MAGISTRATE JUDGE 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28