(PS) Clark v. Velasquez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FELICIA CLARK, Case No. 2:22-cv-00978-KJM-JDP (PS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS AND DENYING HER MOTION FOR A HEARING 14 MARIA VELASQUEZ, et al., ECF Nos. 2 & 5 15 Defendants. SCREENING ORDER THAT PLAINTIFF: 16 (1) STAND BY HER COMPLAINT 17 SUBJECT TO A RECOMMENDATION OF DISMISSAL, OR 18 (2) FILE AN AMENDED COMPLAINT 19 ECF No. 1 20 THIRTY-DAY DEADLINE 21 22 Plaintiff Felicia Clark brings this action against multiple defendants, asserting claims 23 relating to her family’s eviction from their home. The complaint’s allegations fail to state a 24 claim. I will give plaintiff a chance to amend her complaint before recommending dismissal. I 25 will also grant plaintiff’s application to proceed in forma pauperis, ECF No. 2, which makes the 26 showing required by 28 U.S.C. §§ 1915(a)(1) and (2). 27 28 1 Screening and Pleading Requirements 2 Plaintiff’s complaint is subject to screening under 28 U.S.C. § 1915(e). That statute 3 requires the court to dismiss any action filed by a plaintiff proceeding in forma pauperis that is 4 frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks 5 monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B). 6 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 7 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 8 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 9 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 10 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 11 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 12 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 13 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 14 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 15 n.2 (9th Cir. 2006) (en banc) (citations omitted). 16 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 17 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 18 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 19 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 20 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 21 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 22 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 23 Analysis 24 Plaintiff alleges that in August 2021, some of her family’s property was removed from 25 their residence because the residence had become infected with black mold, which plaintiff 26 attributes to defendant Velasquez’s negligence. ECF No. 1 at 5. Plaintiff also alleges that in May 27 2022, Gore incorrectly stated that plaintiff had failed to sign a housing lease. Additionally, 28 plaintiff claims that defendants’ conduct violated federal environmental laws and California 1 housing laws. 2 Plaintiff’s complaint, in its current form, cannot proceed past screening. As an initial 3 matter, plaintiff names defendants Mark Hamilton, LaShelle Doizer, Diana Pot, and Debra Cyrus, 4 but asserts no facts against them. See Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 5 1984) (“The plaintiff must allege with at least some degree of particularity overt acts which 6 defendants engaged in that support the plaintiff’s claim.”).1 7 Moreover, plaintiff’s bare legal conclusions against defendants Velasquez and Gore are 8 insufficient. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 664. Plaintiff alleges, without 9 elaboration, that Velasquez’s negligence caused black mold to grow inside her residence. Her 10 allegations indicate neither that Velasquez owed her duty of care nor that Velasquez breached any 11 such duty. See Berkley v. Dowds, 152 Cal. App. 4th 518, 526 (2007) (“The well-known elements 12 of any negligence cause of action are duty, breach of duty, proximate cause and damages.”). She 13 also claims that Velasquez breached a contract but makes no reference to a contract and does not 14 describe the purportedly breached terms. See Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 930 15 (N.D. Cal. 2012) (“The complaint must identify the specific provision of the contract allegedly 16 breached by the defendant.”). 17 Likewise, plaintiff has not alleged sufficient facts to support a claim of slander, see Pratap 18 v. Wells Fargo Bank, N.A., 63 F. Supp. 3d 1101, 1108 (N.D. Cal. 2014) (quoting Manhattan Loft, 19 LLC v. Mercury Liquors, Inc., 173 Cal. App. 4th 1040, 1051 (2009)) (“To state a claim for 20 slander of title, Plaintiffs must allege: ‘1) a publication; (2) which is false; (3) which is without 21 privilege or justification, and (4) which causes direct and immediate pecuniary loss.’”), or 22 violation of her right to privacy, see Burcham v. City of Los Angeles, 562 F. Supp. 3d 694, 705 23 (C.D. Cal. 2022) (quoting Hill v. Nat. Collegiate Athletic Ass., 7 Cal. 4th 1, 20 (1994)) (noting 24 that the threshold elements for a California right to privacy claim include “(1) a legally protected 25 1 The complaint’s caption also lists Angelica Velasquez, Paulena Westbrook, and David Dunson-Velasquez as plaintiffs. See ECF No. 1 at 1. The complaint, however, contains no 26 allegations relating to these individuals. To the extent plaintiff intends to assert claims on behalf 27 of these individuals, she is notified that she cannot pursue claims on behalf of others. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (pro se plaintiffs are generally prohibited 28 “from pursuing claims on behalf of others in a representative capacity”). 1 privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by 2 defendant constituting a serious invasion of privacy”), against defendant Gore. 3 Finally, plaintiff appears to allege that defendants’ conduct violated federal environmental 4 laws and California housing laws. ECF No. 1 at 4. But plaintiff neither states the specific 5 provisions defendants allegedly violated nor explains how defendants violated any such 6 provisions. 7 Accordingly, plaintiff’s complaint cannot proceed past screening.2 I will allow plaintiff a 8 chance to amend her complaint before recommending that this action be dismissed. Should she 9 choose to amend the complaint, the amended complaint should be brief, Fed. R. Civ. P. 8(a), but 10 must state what each named defendant did that led to the deprivation of plaintiff’s rights. See 11 Iqbal, 556 U.S. at 678. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim to 12 relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Plaintiff should note 13 that a short, concise statement of the allegations in chronological order will assist the court in 14 identifying her claims. Plaintiff should name each defendant and explain what happened, 15 describing personal acts by each individual defendant that resulted in the violation of plaintiff’s 16 rights. Plaintiff should also describe any harm she suffered from the violation of her rights. 17 Plaintiff should not add unrelated issues. See Fed. R. Civ. P. 18; George v. Smith, 507 F.3d 605, 18 607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in different suits 19 . . . .”). 20 An amended complaint will supersede the current complaint. See Lacey v. Maricopa 21 Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint 22 will need to be complete on its face without reference to the prior pleading. See E.D. Cal. Local 23 Rule 220. Once an amended complaint is filed, the current complaint no longer serves any 24 function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need to 25 assert each claim and allege each defendant’s involvement in sufficient detail. The amended 26 complaint should be titled “First Amended Complaint” and refer to the appropriate case number. 27 2 Plaintiff has also filed a motion requesting a hearing. ECF No. 5. There is no need for a 28 hearing at this time; accordingly, that motion is denied. 1 | If plaintiff does not file an amended complaint, I will recommend that this action be dismissed. 2 Accordingly, it is hereby ORDERED that: 3 1. Plaintiffs application to proceed in forma pauperis, ECF No. 2, is granted. 4 2. Plaintiffs motion for a hearing, ECF No. 5, is denied. 5 3. Within thirty days from the service of this order, plaintiff must either file an 6 | Amended Complaint or advise the court that she wishes to stand by her current complaint. If she 7 | selects the latter option, I will recommend that this action be dismissed. 8 4. Failure to comply with this order will result in the dismissal of this action. 9 10 IT IS SO ORDERED. ll ( 4 ie — Dated: _ December 16, 2022 Q_—_—. 12 JEREMY D. PETERSON 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28