(PS) Gaffney v. Barrow ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYSHAWN C. GAFFNEY, No. 2:22–cv–02251-TLN–CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. 14 CORY BARROW, et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se and in forma pauperis. On April 7, 2023, his 18 original complaint was dismissed with leave to amend as it failed to state a claim under Federal 19 Rule of Civil Procedure 12(b)(6) and did not meet the Rule 8 pleading requirements. (ECF No. 20 3.) In May 2023, plaintiff filed two more complaints, similar to each other and the original 21 complaint. (ECF Nos. 4 & 5.) As the last-filed amended complaint supersedes the others, before 22 the court for screening is plaintiff’s Second Amended Complaint (ECF No. 5, “SAC”). The 23 federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally 24 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 26 The SAC sets forth brief and conclusory allegations that, on December 6, 2020, Chico 27 police officers violated plaintiff’s 14th Amendment rights and made a wrongful arrest. (SAC at 28 6.) Plaintiff alleges that the officers arrested him without “hearing [his] side” of the incident, and 1 | that another man punched him in the face. (Id.) As in the original complaint, the SAC does not 2 | contain factual allegations that satisfy the elements of a § 1983 claim. See Thornton v. City of St. 3 || Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (“To state a § 1983 claim for violation of the Equal 4 || Protection Clause a plaintiff must show that the defendants acted with an intent or purpose to 5 || discriminate against the plaintiff based upon membership in a protected class.”). Because the 6 || SAC fails to cure the defects of the original complaint and does not meet the federal pleading 7 || standards under Rules 8 and 12(b)(6), it is subject to dismissal. 8 Despite an opportunity to cure the deficiencies in his complaint, plaintiff has failed to do 9 || so. Moreover, it appears that further amendment would be futile. Thus the undersigned will 10 || recommend dismissal of this action. 11 IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 18 | Yist, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: June 29, 2023 □□ I / dle ae 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 || 2/eaffney2251.f&rs failure to cure 25 26 27 28