(PS) Schembri v. FBI Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIMBERLEY A SCHEMBRI, No. 2:23–cv–00184–DJC–KJN PS 12 Plaintiff, ORDER GRANTING IFP REQUEST AND GRANTING LEAVE TO AMEND 13 v. 14 FBI SACRAMENTO, ET. AL., 15 Defendants. 16 17 Plaintiff, proceeding without counsel in this action, requests leave to proceed in forma 18 pauperis (“IFP”).1 (ECF No. 2.) See 28 U.S.C. § 1915 (authorizing the commencement of an 19 action “without prepayment of fees or security” by a person who is unable to pay such fees). 20 Plaintiff’s affidavit makes the required financial showing, and so plaintiff’s request is granted. 21 However, the determination that a plaintiff may proceed without payment of fees does not 22 complete the inquiry. Under the IFP statute, the court must screen the complaint and dismiss any 23 claims that are “frivolous or malicious,” fail to state a claim on which relief may be granted, or 24 seek monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2). Further, the federal 25 court has an independent duty to ensure it has subject matter jurisdiction in the case. See United 26 Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). 27 1 Actions where a party proceeds without counsel are referred to a magistrate judge pursuant to 28 E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72. 1 I. Legal Standards 2 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 3 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 4 to tell the plaintiff of deficiencies in the complaint and provide an opportunity to cure––if it 5 appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 6 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to amend need be 7 given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 8 A. Federal Notice Pleading and a Complaint’s Failure to State a Claim 9 Rule 8(a) requires that a pleading be “(1) a short and plain statement of the grounds for the 10 court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that the pleader is 11 entitled to relief; and (3) a demand for the relief sought, which may include relief in the 12 alternative or different types of relief.” Each allegation must be simple, concise, and direct. Rule 13 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) 14 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 15 litigation on the merits of a claim.”). 16 A complaint fails to state a claim if it either lacks a cognizable legal theory or sufficient 17 facts to allege a cognizable legal theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 18 2015). To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 19 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 20 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 21 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 22 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a complaint “must 23 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 24 face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 26 When considering whether a complaint states a claim upon which relief can be granted, 27 the court must accept the well-pleaded factual allegations as true, Erickson v. Pardus, 551 U.S. 28 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see Papasan 1 v. Allain, 478 U.S. 265, 283 (1986). The court is not, however, required to accept as true 2 “conclusory [factual] allegations that are contradicted by documents referred to in the complaint,” 3 or “legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. 4 CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). 5 II. Complaint 6 Plaintiff alleges Federal Tort Claims Act violations and constitutional violations against 7 the Federal Bureau of Investigations (FBI), the Central Intelligence Agency (CIA), the Drug 8 Enforcement Agency (DEA), and the Shasta Area Safety Communications Agency (SHASCOM). 9 (ECF No. 1 at 3-4.) The complaint consists of nearly six handwritten pages and is difficult to 10 understand. However, the crux of plaintiff’s complaint appears to be SHASCOM’s alleged 11 interference in her relationship with her husband Mark. As best as the court can determine, 12 plaintiff alleges she was told by a dispatcher, “we are not waking Mark up in the middle of the 13 night to come pick you up you don’t sound like you are in distress to me go get a job!!!!”. (Id. at 14 6.) A Redding Police dispatcher informed plaintiff that her husband does not want any contact 15 with her. (Id.) The complaint does not indicate the context of the phone call to the SHASCOM, 16 such as why plaintiff made the phone call. Further, although the FBI, CIA, and DEA are named 17 as defendants in the complaint, the complaint does not make any allegations about these federal 18 agencies, except for the vague statement “these federal agencies are 100% aware of the $ amount 19 what they did”. (Id. at 2.) 20 Plaintiff seeks damages associated with the loss of her relationship with her husband and 21 demands “150 999 billion dollars” in damages, half in the form of a check and half in the form of 22 pre-paid visa gift cards. (Id.) 23 III. Analysis 24 A. Claims against federal agencies 25 Plaintiff’s complaint fails to state claims against any of the federal agencies named as 26 defendants in the complaint (the FBI, CIA, and DEA). The only reference to the FBI, CIA, and 27 DEA, apart from being named as defendants, is the statement that “these federal agencies are 28 1 100% aware of the $ amount what they did”.2 (ECF No. 1 at 2.) This statement is so vague that 2 the court cannot infer any cognizable claim from it. Because plaintiff has not alleged sufficient 3 facts from which the court can infer a cognizable claim against the named federal agencies, 4 plaintiff’s complaint fails to state a claim against these defendants. In any amended complaint, 5 plaintiff should state what actions or omissions each of these federal agencies took that lead to her 6 conclude her rights were violated. 7 B. Claims against local agencies 8 Plaintiff’s complaint fails to state claims against Shasta Area Safety Communications 9 Agency (SHASCOM-911) and the Redding Police Department.3 Title 42 U.S.C. § 1983 provides 10 a cause of action for the deprivation of “rights, privileges, or immunities secured by the 11 Constitution or laws of the United States” against a person acting “under color of any statute, 12 ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 639 (1980). “[L]ocal- 13 government entities are considered ‘persons’ under Section 1983 and therefore may be liable for 14 causing a constitutional deprivation.” See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 15 (1978). In order to state a claim for relief under Section 1983, plaintiff must link each named 16 defendant with some affirmative act or omission that demonstrates a violation of plaintiff's 17 federal rights. Plaintiff has provided very little information about her phone call with 18 SHASCOM, and not nearly enough for the court to infer that a constitutional violation of any 19 kind occurred. Accordingly, plaintiff has not stated a claim against SHASCOM-911 or the 20 Redding Police Department.4 21 2 Plaintiff cites to the Federal Tort Claims Act (FTCA) as the basis for the complaint. Plaintiff is informed that to state a cognizable claim pursuant to the FTCA, plaintiff must affirmatively allege 22 the timely filing of an administrative claim. See McNeil v. United States, 508 U.S. 106, 111 23 (1993). 24 3 The Redding Police Department is not named as a defendant. However, because the court construes complaints by pro se individuals liberally, and plaintiff’s complaint discusses 25 statements by the Redding Police Department, the court addresses claims against the Redding Police Department in its analysis. 26 27 4 Local government entities are only liable “for injuries that arise from an official policy or longstanding custom.” Monell, 436 U.S. at 694. In any amended complaint, if plaintiff continues 28 to seek relief from a local agency under Section 1983, plaintiff must allege the existence of a 1 In light of plaintiff’s pro se status, the court finds it appropriate to grant plaintiff an 2 opportunity to amend the complaint. See Lopez, 203 F.3d at 1130-31 (indicating that prior to 3 dismissal, the court is to tell the plaintiff of deficiencies in the complaint and provide an 4 opportunity to cure––if it appears at all possible the defects can be corrected). Accordingly, in 5 any amended complaint, plaintiff should allege facts that link each named defendant to a 6 particular constitutional violation. 7 If plaintiff elects to file an amended complaint, this new pleading shall be captioned as 8 the “First Amended Complaint” and should address the defects in the complaint. However, the 9 statement of the claim should be kept relatively “short.” Plaintiff is informed that the court 10 cannot refer to a prior complaint or other filing in order to make the second amended complaint 11 complete. Local Rule 220 requires that an amended complaint be complete in itself without 12 reference to any prior pleading. Finally, nothing in this order requires plaintiff to file a an 13 amended complaint. If plaintiff determines that she is unable to amend the complaint in 14 compliance with the court’s order, she may alternatively file a notice of voluntary dismissal of his 15 claims without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s motion to proceed in forma pauperis is GRANTED; 19 2. Plaintiff is granted 28 days from the date of this order, plaintiff shall file either (a) an 20 amended complaint in accordance with this order, or (b) a notice of voluntary 21 dismissal of the action without prejudice; and 22 //// 23 //// 24 //// 25 //// 26 //// 27 longstanding policy or custom that resulted in a constitutional violation. 28 1 3. Failure to file either an amended complaint or a notice of voluntary dismissal by the 2 required deadline may result in the imposition of sanctions, including potential 3 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 4 41(b). 5 || Dated: June 29, 2023 Foci) Aharon 7 KENDALL J. NE whe. 0184 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28