Wilson v. City of Walnut Creek ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL GEARY WILSON, Case No. 20-cv-02721-PJH 8 Plaintiff, 9 v. ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO 10 CITY OF WALNUT CREEK, et al., EXTEND BRIEFING 11 Defendants. Re: Dkt. Nos. 34, 53 12 13 14 Before the court is defendants City of Walnut Creek, Darryl R. Saffold, Gary Silva, 15 Scott Brian Moorhouse, Sean Michael Conley, and Thomas Edward Chaplin’s 16 (collectively, “defendants”) motion to dismiss. The matter is fully briefed and suitable for 17 resolution without oral argument. Having read the parties’ papers and carefully 18 considered their arguments and the relevant legal authority, and good cause appearing, 19 the court GRANTS the motion, for the following reasons. 20 BACKGROUND 21 On April 20, 2020, plaintiff Michael Geary Wilson (“plaintiff”) filed a complaint 22 alleging twenty claims: (1) fraud in preventing orders and judgments; (2)–(8) violations of 23 42 U.S.C. §§ 1983, 1985(2), 1985(3), 1986; (9) civil extortion; (10) intentional infliction of 24 emotional distress; (11)–(13) violations of the Bane Act, Cal. Civ. Code § 52.1; (14) false 25 imprisonment; (15) false light invasion of privacy; (16)–(17) defamation; (18) negligence; 26 (19) negligent hiring, supervision, or retention; and (20) parental negligence. Dkt. 1. 27 On July 13, 2020, plaintiff filed a first amended complaint (“FAC”) that brings the 1 forty-seven claims). Dkt. 24. The FAC, spanning over six hundred pages, also purported 2 to name dozens of new defendants. Plaintiff filed a motion for leave to serve these new 3 defendants, (Dkt. 25), which the court denied on July 20, 2020, (Dkt. 30). 4 Plaintiff alleges that on April 20, 2018, he was involved in a confrontation at the 5 Heather Farms Skate Park in Walnut Creek. FAC ¶ 87. Plaintiff and two minors under 6 his supervision, C.C. and D.A., encountered a group of approximately fourteen people in 7 the park who were smoking marijuana and tobacco and using profanities. Id. ¶ 87.a. 8 Plaintiff approached these individuals asking them to cease using profanities, but the 9 individuals rebuffed plaintiff and then directed insults and threw items at plaintiff. Id. 10 ¶¶ 87.b–c. Plaintiff called the Walnut Creek Police Department and the Department 11 dispatched defendants Saffold and Silva to the park. Id. ¶¶ 87.d–e. 12 Plaintiff attempted to explain his version of events to the officers, but some of the 13 other individuals accused plaintiff of wanting to touch children. Id. ¶¶ 87.f–g. Plaintiff 14 recounted to the officers that some of the individuals made him fear for his, C.C.’s and 15 D.A.’s safety and the officers invited plaintiff to leave the park, which he declined. Id. 16 ¶ 87.h. Plaintiff alleges that defendants Saffold and Silva intimidated him, accusing 17 plaintiff of pretending to fear for the lives of C.C. and D.A. and indicating that plaintiff 18 should have left the park. Id. ¶ 87.i. Saffold and Silva requested a supervisor, defendant 19 Moorhouse, who later arrived on the scene. Id. ¶¶ 87.j–k. 20 Plaintiff discussed with Moorhouse the preceding events and Moorhouse indicated 21 that the officers would ensure that everyone would follow the park rules. Id. ¶ 87.k. 22 Eventually D.A. and C.C. were able to use the park and the officers departed. Id. 23 ¶¶ 87.m–p. More individuals arrived at the park, one of whom called the Walnut Creek 24 Police Department and made a false report against plaintiff. Id. ¶ 87.r. Defendants Silva, 25 Saffold, and Moorhouse returned and one of the individuals accused plaintiff of being 26 aggressive towards kids. Id. ¶ 87.s. The officers conducted an investigation, 27 “surrounded and detained” plaintiff while they spoke with him, and informed plaintiff that 1 plaintiff to leave the park, which he refused to do, and the officers then closed the park. 2 Id. 3 Plaintiff alleges that he feared that Moorhouse, Saffold, and Silva would falsely 4 detain or arrest him or otherwise continue to harm him and the presence of the officers 5 dissuaded plaintiff from trying to identify any of the individuals who harmed plaintiff. Id. 6 ¶ 87.u. The officers left the park and the Walnut Creek Police Department did not 7 investigate any of the crimes that plaintiff reported. Id. ¶¶ 87.v–w. On April 22, 2018, 8 plaintiff complained to defendant Chaplin about the foregoing events and the next day he 9 asked defendants Conley and Moorhouse to reassure him that the Walnut Creek Police 10 Department would provide honest services. Id. ¶¶ 89–90. Defendants did not respond to 11 his requests. Id. 12 Defendants now move to dismiss the FAC under Federal Rule of Civil Procedure 13 12(b)(6). Dkt. 34. 14 DISCUSSION 15 A. Legal Standard 16 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the 17 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 18 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that 19 a complaint include a “short and plain statement of the claim showing that the pleader is 20 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 21 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient 22 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th 23 Cir. 2013). 24 While the court is to accept as true all the factual allegations in the complaint, 25 legally conclusory statements, not supported by actual factual allegations, need not be 26 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer 27 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. 1 “A claim has facial plausibility when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court 4 to infer more than the mere possibility of misconduct, the complaint has alleged—but it 5 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. 6 P. 8(a)(2)). Where dismissal is warranted, it is generally without prejudice, unless it is 7 clear the complaint cannot be saved by any amendment. In re Daou Sys., Inc., 411 F.3d 8 1006, 1013 (9th Cir. 2005). 9 B. Analysis 10 1. Second Claim: Violation of 42 U.S.C. § 1983 11 Plaintiff’s second claim is for deprivation of rights in violation of 42 U.S.C. § 1983 12 alleged against defendants in both their official and personal capacities. FAC ¶¶ 40, 13 516–26. 14 Section 1983 “provides a cause of action for the ‘deprivation of any rights, 15 privileges, or immunities secured by the Constitution and laws’ of the United States.” 16 Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 17 1983 is not itself a source of substantive rights, but merely provides a method for 18 vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 19 393–94 (1989). 20 To state a claim under § 1983, a plaintiff must allege that a right secured by the 21 Constitution or laws of the United States was violated and that the alleged violation was 22 committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 23 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987). The plaintiff 24 must also allege facts showing that “the defendant’s conduct was the actionable cause of 25 the claimed injury;” that is, the plaintiff must establish both causation-in-fact and 26 proximate causation. Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) 27 (citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996)). 1 a. Official Capacity Claims 2 Defendants argue that plaintiff cannot state a claim against them in their official 3 capacity because naming state officials in their official capacity is merely an alternative 4 way of pleading an action against the entity of which the defendant is an officer. Mtn. at 5 5. 6 The court agrees with defendants. “Official-capacity suits . . . ‘generally represent 7 only another way of pleading an action against an entity of which an officer is an agent.’” 8 Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. N.Y.C. Dep’t of 9 Social Servs., 436 U.S. 658, 690, n. 55 (1978)). “As long as the government entity 10 receives notice and an opportunity to respond, the official-capacity suit is, in all respects 11 other than name, to be treated as a suit against the entity.” Id. (citing Brandon v. Holt, 12 469 U.S. 464, 471–72 (1985)). However, this rule only applies to state officers sued for 13 damages in their official capacity. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (citing Will 14 v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)); see also Butler v. Elle, 281 F.3d 15 1014, 1023 n.8 (9th Cir. 2002) (“Section 1983 claims against government officials in their 16 official capacities are really suits against the governmental employer because the 17 employer must pay any damages awarded.”). 18 Here, in addition to naming individual defendants in their official capacity, plaintiff 19 also names the City of Walnut Creek as a defendant and alleges a violation of § 1983 20 based on a Monell theory of liability. Further, plaintiff alleges that the individual 21 defendants were employees of the City of Walnut Creek. FAC ¶ 40. Therefore, to the 22 extent plaintiff alleges federal claims against defendants in their official capacity, those 23 claims are treated as claims against the City and are redundant. See Vance v. Cty. of 24 Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (“[I]f individuals are being sued in 25 their official capacity as municipal officials and the municipal entity itself is also being 26 sued, then the claims against the individuals are duplicative and should be dismissed. 27 (citation omitted)). 1 defendants in their official capacities is GRANTED and the claims for damages are 2 DISMISSED WITH PREJUDICE. 3 b. Individual Capacity Claims 4 i. Claims Against Silva, Saffold & Moorhouse 5 The upshot of plaintiff’s § 1983 claim appears to be that defendants1 discriminated 6 against plaintiff on the basis of his perceived disabilities, race, and/or sex. FAC ¶ 521. 7 Defendants construe this claim as asserting a violation of Title II of the Americans with 8 Disabilities Act (“ADA”) and argue that the court should dismiss the claim because 9 plaintiff has not alleged intentional discrimination on the part of defendants. Mtn. at 16– 10 17. 11 As an initial matter, it is not clear that plaintiff is alleging a violation of the ADA, 12 despite the reference to his perceived disabilities. Rather, because plaintiff contends he 13 is part of a “protected class” and a “class of one,” (FAC ¶ 521), the court construes 14 plaintiff’s § 1983 claim as one for violation of the Equal Protection clause of the 15 Fourteenth Amendment. See Dare v. California, 191 F.3d 1167, 1174 (9th Cir. 1999) 16 (“Although disabled people do not constitute a suspect class, the Equal Protection Clause 17 prohibits irrational and invidious discrimination against them.” (citing City of Cleburne v. 18 Cleburne Living Ctr., 473 U.S. 432, 439, 446 (1985))). A plaintiff may state an equal 19 protection claim by alleging facts showing that the defendant discriminated against 20 him/her based on membership in a protected class, Comm. Concerning Cmty. 21 Improvement v. City of Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009), or that similarly 22 situated individuals were intentionally treated differently, Engquist v. Or. Dep’t of Agric., 23 553 U.S. 591, 601–02 (2008). 24 Plaintiff fails to allege he is a member of a suspect class based on his race, 25 alienage, or national origin. He only contends that he has physical and mental 26 impairments that have substantially limited many of his major life activities. FAC ¶ 6. For 27 1 purposes of a Rule 12(b)(6) motion, the court accepts as true plaintiff’s allegations of his 2 disabilities and further accepts that plaintiff told Saffold and Silva of his anxiety disability. 3 Id. ¶ 87.i. Yet, the allegations relating to defendants Silva, Saffold, and Moorhouse are 4 devoid of any non-conclusory reference to plaintiff’s disabilities. For example, plaintiff 5 alleges that “[partly in further retaliation for my foregoing lawful acts, partly because of my 6 disclosed disability, and party because to deter me from pursuing my legal remedies, 7 SAFFOLD repeatedly threatened to issue me a citation for a non-existent license 8 violation.” Id. ¶ 87.l. However, he does not allege how defendant Saffold’s threat (or any 9 other action by defendants) was based on, or in any way connected to, his disability. In 10 other words, plaintiff fails to allege facts that plausibly establish that defendants 11 discriminated against him or that any purported discrimination was because of his 12 membership in a protected class. 13 Accordingly, plaintiff fails to state a claim against Silva, Saffold, and Moorhouse for 14 violation of 42 U.S.C. § 1983. 15 ii. Supervisory Capacity 16 Defendants contend that plaintiff’s claims against Chief Chaplin should also be 17 dismissed because plaintiff fails to allege that Chaplin personally participated in the 18 deprivation of plaintiff’s rights. Mtn. at 8. 19 Supervisory officials “may not be held liable for the unconstitutional conduct of 20 their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676; see 21 also Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (“Supervisors aren’t 22 vicariously liable for constitutional violations under section 1983.”). “Each Government 23 official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 24 556 U.S. at 675; see also Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074– 25 75 (9th Cir. 2013) (“Vicarious liability may not be imposed on a supervisor for the acts of 26 lower officials in a section 1983 action.”). That is, supervisory officials “cannot be held 27 liable unless they themselves” violated a constitutional right. Iqbal, 556 U.S. at 683. 1 constitutional deprivation, or if there is a sufficient causal nexus between the supervisor’s 2 alleged wrongful conduct and the constitutional deprivation. See Crowley v. Bannister, 3 734 F.3d 967, 977 (9th Cir. 2013). Under the latter theory, supervisory liability may exist 4 without overt personal participation if the supervisory officials implement a policy so 5 deficient that the policy itself is a repudiation of constitutional rights and is the moving 6 force of a constitutional violation. Id.; see also Starr v. Baca, 652 F.3d 1202, 1208 (9th 7 Cir. 2011) (“A supervisor can be liable in his individual capacity for his own culpable 8 action or inaction in the training, supervision, or control of his subordinates; for his 9 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or 10 callous indifference to the rights of others.” (quoting Watkins v. City of Oakland, 145 F.3d 11 1087, 1093 (9th Cir. 1998))). 12 Here, the only allegation against defendant Chaplin is that plaintiff complained to 13 Chaplin on April 22, 2018 concerning the events of April 20th and Chaplin apparently has 14 not responded. FAC ¶ 89. Similarly, the only allegation relating to defendant Conley is 15 that plaintiff “asked CONLEY and MOORHOUSE to reassure me that the [Walnut Creek 16 Police Department] would provide honest services to me going forward and help me 17 informally resolve the problems that MOORHOUSE, SILVA, and SAFFOLD had caused. 18 To date, they have not done so.” Id. ¶ 90. Plaintiff has not alleged that Chaplin or 19 Conley were present on April 20th at the park, nor has he established a predicate 20 constitutional violation that might support a supervisory liability theory. 21 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s second claim is 22 GRANTED and the claim is DISMISSED WITHOUT PREJUDICE. 23 2. Third through Sixth Claims: Violations of 42 U.S.C. § 1985 24 Plaintiff’s third claim is for conspiracy to obstruct justice in violation of 42 U.S.C. 25 § 1985(2), his fourth claim is for conspiracy to injure person or property for enforcing 26 equal protection in violation of § 1985(2), his fifth claim is for conspiracy/acts to deprive 27 protected persons of equal protection/privileges & immunities in violation of § 1985(3), 1 protection in violation of § 1985(3). FAC ¶¶ 527–56. 2 “Section 1985 proscribes conspiracies to interfere with certain civil rights. A claim 3 under this section must allege facts to support the allegation that defendants conspired 4 together. A mere allegation of conspiracy without factual specificity is insufficient.” 5 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (citing Jaco v. 6 Bloechle, 739 F.2d 239, 245 (6th Cir. 1984); and Burnett v. Short, 441 F.2d 405, 406 (5th 7 Cir. 1971)); see also Portman v. Cty. of Santa Clara, 995 F.2d 898, 908–09 (9th Cir. 8 1993) (citing elements of § 1985(2) claim including conspiracy); Sever v. Alaska Pulp 9 Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citing elements of § 1985(3) claim including 10 conspiracy). 11 Defendants argue that plaintiff’s conspiracy claims must be dismissed because the 12 FAC fails to allege any specific facts regarding an agreement between two or more 13 people, the scope of the alleged conspiracy, the roles of the conspirators, any overt act in 14 furtherance of the conspiracy, or when the conspiracy occurred. Mtn. at 11. 15 The court agrees with defendants for a few reasons. First, the factual allegations 16 concerning the actions of defendants Silva, Saffold, and Moorhouse on April 20, 2018 are 17 devoid of any allegations of an agreement to conspire against plaintiff. Second, the 18 actions described in plaintiff’s third through sixth causes of action are unrelated to the 19 actions of defendants. For example, plaintiff’s fifth claim alleges that he is an individual 20 with disabilities, multiple defendants discriminated against him based on upon his 21 perceived disabilities, and defendants conspired for the purpose of depriving plaintiff of 22 the equal protection of the laws. FAC ¶ 543. Yet, the allegations concerning defendants 23 Silva, Saffold, and Moorhouse do not include any statement or action by defendants 24 concerning plaintiff’s disabilities. Because there are no factual allegations concerning an 25 agreement by any of the defendants to deprive plaintiff of his civil rights, plaintiff fails to 26 state a claim under section 1985. 27 For the reasons stated, defendants’ motion to dismiss plaintiff’s third through sixth 1 3. Seventh Claim: Failure to Prevent 2 Plaintiff’s seventh claim is that each defendant knew of at least one of the 3 foregoing wrongs conspired to be done in violation of § 1985, had the power to prevent or 4 aid in preventing the commission of those wrongs, and neglected or refused to do so. 5 FAC ¶ 559. Plaintiff alleges a violation of title 42 U.S.C. § 1986 for the failure to prevent 6 violations of § 1985. 7 “Section 1986 imposes liability on every person who knows of an impending 8 violation of section 1985 but neglects or refuses to prevent the violation. A claim can be 9 stated under section 1986 only if the complaint contains a valid claim under section 10 1985.” Karim-Panahi, 839 F.2d at 626 (citing Trerice v. Pedersen, 769 F.2d 1398, 1403 11 (9th Cir. 1985)). Because plaintiff has not plausibly stated a predicate claim for violation 12 of § 1985, he cannot state a claim for violation of § 1986. 13 Thus, defendants’ motion to dismiss plaintiff’s seventh claim is GRANTED and the 14 claim is DISMISSED WITHOUT PREJUDICE. 15 4. Eighth Claim: Monell Liability 16 “[A] municipality cannot be held liable solely because it employs a tortfeasor—or, 17 in other words, a municipality cannot be held liable under § 1983 on a respondent 18 superior theory.” Monell, 436 U.S. at 691. In order for a municipality to be held liable, it 19 must have committed the constitutional violation pursuant to governmental custom or 20 official municipal policy. Id. at 692. 21 “To establish municipal liability under Monell, [plaintiff] must prove that (1) he was 22 deprived of a constitutional right; (2) the municipality had a policy; (3) the policy 23 amounted to deliberate indifference to [plaintiff’s] constitutional right; and (4) the policy 24 was the moving force behind the constitutional violation.” Lockett v. Cty. of Los Angeles, 25 — F.3d —, No. 19-55898, 2020 WL 5867551, at *3 (9th Cir. Oct. 2, 2020) (citing 26 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). Plaintiff’s Monell claim is 27 “contingent on a violation of constitutional rights.” Id. (quoting Scott v. Henrich, 39 F.3d 1 Here, plaintiff has not plausibly stated a claim for violation of his constitutional 2 rights. It therefore follows that he cannot state a claim for violation of § 1983 under a 3 Monell theory. 4 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s eighth claim is 5 GRANTED and the claim is DISMISSED WITHOUT PREJUDICE. 6 5. State Law Claims 7 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 8 Co. of Am., 511 U.S. 375, 377 (1994). The party invoking the court’s jurisdiction bears 9 the burden of establishing that it is proper. See id. Plaintiff’s FAC cites title 28 U.S.C. 10 § 1331 as providing for subject matter jurisdiction over his federal claims and title 28 11 U.S.C. § 1367(a) as providing supplemental jurisdiction over his state law claims. FAC 12 ¶¶ 64–65. 13 As demonstrated above, plaintiff’s second through eighth causes of action fail to 14 state a claim. Plaintiff’s remaining forty claims are all based in state law. The court has 15 no diversity jurisdiction over this case because plaintiff alleges that both he and 16 defendants are either citizens of California or, in the case of the City of Walnut Creek, a 17 California municipal corporation. FAC ¶¶ 6, 14, 40. Thus, the only basis to assert 18 jurisdiction over plaintiff’s state law claims is through the supplemental jurisdiction statute, 19 28 U.S.C. § 1367. Under § 1367(c)(3), a district court has discretion to decline to 20 exercise supplemental jurisdiction over plaintiff’s state law claims where “the district court 21 has dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. 22 § 1367(c)(3). 23 In this case, because plaintiff fails to state a claim for any violation of federal law, 24 the court declines to exercise supplemental jurisdiction over his remaining state law 25 claims. Further, it is unclear whether plaintiff’s state law claims satisfy § 1367(a)’s 26 requirement that the state law claims are “so related” to the federal question claims “that 27 they form part of the same case or controversy.” 28 U.S.C. § 1367(a). As discussed 1 the defendants in this case. Thus, even if the court had original jurisdiction over some of 2 plaintiff’s claims, the other allegations do not clearly derive from a common nucleus of 3 operative facts such that they would be expected to be tried in one judicial proceeding. 4 See Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 855 (9th Cir. 2004) (citation omitted). 5 For the foregoing reasons, plaintiff’s state law claims are DISMISSED WITHOUT 6 PREJUDICE. 7 6. The FAC Also Fails Rule 8(a)(2) 8 Plaintiff’s FAC also fails to state a claim for an independent reason. Federal Rule 9 of Civil Procedure 8(a)(2) requires a pleading to contain “a short and plain statement of 10 the claim showing that the pleader is entitled to relief.” Rule 8(d)(1) requires that “[e]ach 11 allegation must be simple, concise, and direct.” “Although normally ‘verbosity or length is 12 not by itself a basis for dismissing a complaint,’ [courts] have never held . . . that a 13 pleading may be of unlimited length or opacity.” Cafasso, U.S. ex rel. v. Gen. Dynamics 14 C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (quoting Hearns v. San Bernardino 15 Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008)). “While the proper length and level of 16 clarity for a pleading cannot be defined with any great precision, Rule 8(a) has been held 17 to be violated by a pleading that was needlessly long, or a complaint that was highly 18 repetitious, or confused, or consisted of incomprehensible rambling.” Id. at 1059 (internal 19 quotations and citation omitted). 20 Here, plaintiff’s FAC is 608 pages of prolix and confusing allegations. The length 21 and confusing nature of the pleading prejudices defendants because the FAC burdens 22 them “with the onerous task of combing through a [608]-page pleading just to prepare an 23 answer that admits or denies such allegations, and to determine what claims and 24 allegations must be defended or otherwise litigated.” Id. Moreover, plaintiff has already 25 been warned in other cases that his pleadings are largely incomprehensible and 26 excessively long and several judges have dismissed his complaints on that basis.2 See 27 1 Wilson v. Cty. of Contra Costa, et al., 20-cv-4160-WHA, Dkt. 38; Wilson v. Mount Diablo 2 Unified Sch. Dist./Special Educ. Local Plan Area (Diablo), et al., 20-cv-3368-MMC, Dkt. 3 30; Wilson v. Mount Diablo Unified Sch. Dist., et al., 18-cv-3973-JD, Dkt. 24. 4 The foregoing reasons confirm that plaintiff’s FAC must be dismissed. “Normally, 5 when a viable case may be pled, a district court should freely grant leave to amend.” 6 Cafasso, 637 F.3d at 1058 (citation omitted). In his opposition, plaintiff avers that he can 7 add more facts in a second amended complaint. Dkt. 55 at 6. He also stated his intent to 8 file and serve complaints to include at least 291 defendants and to add more and further 9 specify relevant facts that span more than 11 years in this action and others. Id. 10 Because the court has not previously addressed the deficiencies in plaintiff’s 11 complaint, the court will permit leave to amend. See Lucas v. Dep’t of Corr., 66 F.3d 245, 12 248 (9th Cir. 1995) (“[A] pro se litigant is entitled to notice of the complaint’s deficiencies 13 and an opportunity to amend prior to dismissal of the action.”). However, plaintiff must 14 adhere to the requirements of Rule 8; he must allege simple, concise, and direct 15 allegations and his pleading must contain a short and plain statement why he is entitled 16 to relief. Further, no additional claims or defendants will be permitted without leave of the 17 court or agreements of all defendants. 18 7. Ex Parte Motion to Extend Time to File Opposition 19 Defendants’ motion to dismiss has been pending since August 3, 2020 and 20 plaintiff’s opposition was initially due on August 17, 2020. Dkt. 34. Plaintiff instead filed 21 an appeal on August 10, 2020, (Dkt. 40), which was soon dismissed for lack of 22 jurisdiction, (Dkt. 44). The court then reset the briefing schedule on defendant’s motion 23 with plaintiff’s opposition due October 13, 2020. Dkt. 46. Plaintiff then filed his first ex 24 parte motion to extend the deadline to file his opposition, (Dkt. 49), which the court 25 denied, noting that plaintiff has had ample time to file an opposition and “[n]o further 26 extension shall be considered absent good cause,” (Dkt. 51 at 1). 27 1 Plaintiff has now filed a renewed ex parte application to extend time to file his 2 opposition, (Dkt. 53), which defendants oppose, (Dkt. 54). Subsequent to this motion, 3 plaintiff also filed an “incomplete” opposition to the motion to dismiss. Dkt. 55. Plaintiff 4 has not demonstrated good cause necessary to extend time for him to file an opposition 5 and, in any case, his filing of an opposition (even one he considers “incomplete”) moots 6 his request. 7 Accordingly, plaintiff’s ex parte motion to extend time to file an opposition is 8 DENIED AS MOOT. 9 CONCLUSION 10 For the reasons stated, defendants’ motion to dismiss is GRANTED and plaintiff’s 11 claims are DISMISSED WITHOUT PREJUDICE, with the exception of plaintiff’s claims 12 against the individual defendants sued in the official capacity for damages, which are 13 DISMISSED WITH PREJUDICE. Plaintiff shall file any amended complaint, if any, within 14 21 days of the date of this order. No new parties or causes of action may be pleaded 15 without leave of court or the agreement of all defendants. 16 IT IS SO ORDERED. 17 Dated: November 3, 2020 18 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 19 United States District Judge 20 21 22 23 24 25 26 27