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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 ARLENE R. ATHERTON, Case No. CV 19-10167-CJC (KK) 11 Plaintiff, 12 v. ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 13 BEVERLY HILLS PUBLIC LIBRARY, ET AL., 14 Defendants. 15 16 17 I. 18 INTRODUCTION 19 Plaintiff Arlene R. Atherton (“Plaintiff”), proceeding pro se and in forma 20 pauperis, filed a “civil rights” Complaint pursuant to the Americans With Disabilities 21 Act (“ADA”) and

(“Section 1983”). For the reasons discussed 22 below, the Court dismisses the Complaint with leave to amend. 23 II. 24 ALLEGATIONS IN THE COMPLAINT 25 On November 27, 2019, Plaintiff filed the Complaint under the ADA and 26 Section 1983. ECF Docket No. (“Dkt.”) 1. Although not entirely clear, the 27 Complaint appears to sue the Beverly Hills Library and Beverly Hills Police 1 Defendants violated her constitutional rights and failed to accommodate her traumatic 2 brain injury when she was removed from the Beverly Hills Public Library on 3 November 25, 2019 by the Beverly Hills Police Department and was required to meet 4 with a library supervisor to reinstate her public use privileges.

. While not 5 entirely clear, it appears Plaintiff also claims her removal from the Beverly Hills 6 Library prevented her from complying with deadlines in other cases before the federal 7 district court in Illinois and the United States Supreme Court.

Plaintiff does not 8 appear to seek any specific relief. 9 III. 10 STANDARD OF REVIEW 11 As Plaintiff is proceeding in forma pauperis, the Court must screen the 12 Complaint and is required to dismiss the case at any time if it concludes the action is 13 frivolous or malicious, fails to state a claim on which relief may be granted, or seeks 14 monetary relief against a defendant who is immune from such relief.

1915(e)(2)(B); see Barren v. Harrington,

(9th Cir. 1998). 16 Under Federal Rule of Civil Procedure 8 (“Rule 8”), a complaint must contain a 17 “short and plain statement of the claim showing the pleader is entitled to relief,” and 18 “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(a), (d). In 19 determining whether a complaint fails to state a claim for screening purposes, the 20 Court applies the same pleading standard as it would when evaluating a motion to 21 dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter, 668

(9th Cir. 2012). 23 A complaint may be dismissed for failure to state a claim “where there is no 24 cognizable legal theory or an absence of sufficient facts alleged to support a 25 cognizable legal theory.” Zamani v. Carnes,

(9th Cir. 2007). In 26 considering whether a complaint states a claim, a court must accept as true all of the 27 material factual allegations in it. Hamilton v. Brown,

(9th Cir. 1 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 2 Gilead Scis. Sec. Litig.,

(9th Cir. 2008). Although a complaint 3 need not include detailed factual allegations, it “must contain sufficient factual matter, 4 accepted as true, to state a claim to relief that is plausible on its face.” Cook v. 5 Brewer,

(9th Cir. 2011) (quoting Ashcroft v. Iqbal,

, 6 678,

,

(2009)). A claim is facially plausible when it 7 “allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.”

The complaint “must contain sufficient allegations of 9 underlying facts to give fair notice and to enable the opposing party to defend itself 10 effectively.” Starr v. Baca,

(9th Cir. 2011). 11 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, 12 however inartfully pleaded, must be held to less stringent standards than formal 13 pleadings drafted by lawyers.’” Woods v. Carey,

(9th Cir. 2008). 14 However, liberal construction should only be afforded to “a plaintiff’s factual 15 allegations,” Neitzke v. Williams,

, 330 n.9,

,

339 (1989), and the Court need not accept as true “unreasonable inferences or assume 17 the truth of legal conclusions cast in the form of factual allegations,” Ileto v. Glock 18 Inc.,

(9th Cir. 2003). 19 If the court finds the complaint should be dismissed for failure to state a claim, 20 the court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 21

(9th Cir. 2000). Leave to amend should be granted if it 22 appears possible the defects in the complaint could be corrected, especially if the 23 plaintiff is pro se.

; see also Cato v. United States,

, 1106 24 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot 25 be cured by amendment, the court may dismiss without leave to amend. Cato, 70 26 F.3d at 1107-11; see also Moss v. U.S. Secret Serv.,

(9th Cir. 2009). 27 /// 1 IV. 2 DISCUSSION 3 THE COMPLAINT FAILS TO COMPLY WITH RULE 8 4 A. APPLICABLE LAW 5 Federal Rule of Civil Procedure 8 (“Rule 8”) requires a complaint contain “a 6 short and plain statement of the claim showing that the pleader is entitled to relief” 7 and “a demand for the relief sought.” Fed. R. Civ. P. 8. “[T]he ‘short and plain 8 statement’ [required by Rule 8] must provide the defendant with ‘fair notice of what 9 the plaintiff’s claim is and the grounds upon which it rests.’” Dura Pharms., Inc. v. 10 Broudo,

,

,

(2005). “Experience 11 teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery 12 is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, 13 and society loses confidence in the court’s ability to administer justice.” Bautista v. 14 L.A. Cty.,

(9th Cir. 2000). 15 Rule 8 “has been held to be violated by a pleading that was needlessly long, or a 16 complaint that was highly repetitious, or confused, or consisted of incomprehensible 17 rambling.” Cafasso v. Gen. Dynamics C4 Sys., Inc.,

(9th Cir. 18 2011) (citation and internal quotation marks omitted); see McHenry v. Renne,

1172, 1177 (9th Cir. 1996) (affirming the dismissal of a complaint under Rule 8 for 20 being “argumentative, prolix, replete with redundancy, and largely irrelevant”). A 21 complaint may be dismissed for violating Rule 8 even if “a few possible claims” can 22 be identified and the complaint is not “wholly without merit.”

(stating 23 Rule 8’s requirements apply “to good claims as well as bad”); see also Cafasso, 637 24 F.3d at 1059 (discussing cases in which the Ninth Circuit affirmed Rule 8 dismissals); 25 Hearns v. San Bernardino Police Dep’t,

(9th Cir. 2008) 26 (same). Likewise, a court may dismiss a claim as factually frivolous when the facts 27 alleged are implausible. Denton v. Hernandez,

,

, 1 B. ANALYSIS 2 Here, the Complaint fails to provide a short a plain statement of claims or 3 demand for relief. Rather, the Complaint consists largely of incomprehensible 4 ramblings regarding the incident at the Beverly Hills Library with numerous attached 5 documents that do not even appear to be related to this incident. See dkt. 1, Compl. 6 Moreover, Plaintiff fails to describe what civil rights were violated by her removal 7 from the library or the accommodations she believes she was entitled to under the 8 ADA. 9 First, to the extent Plaintiff is alleging non-parties Lynda Agbagani, Dennis 10 Cathey, and Dina (Secretary to Ray Tromba) are conspiring to monitor her “geo 11 location using law enforcement resources – via phone/computers, and informants 12 (immigrants, students, retires, and homeless[)]” and prevent her “means of access to 13 computer use on public computers – public library, hotels”, id. at 4, her allegations are 14 factually implausible and “rise to the level of the . . . wholly incredible”. See Denton, 15

. In addition, such allegations do not appear relevant to stating an 16 ADA or Section 1983 claim against the Beverly Hills Library or Police Department. 17 Second, it is unclear how Plaintiff’s removal from the Beverly Hills Library 18 violated Plaintiff’s civil rights or the ADA. Plaintiff argues her “Adversary desires to 19 use Structural limitation of computer access to prevent legal rights civil rights 20 economic claim.” Id. at 2. Plaintiff conclusorily describes the exhibits to the 21 Complaint as “further incidents of obstruction of justice § 1512 and Retaliation of 22 Witness.” Id. It appears from Exhibit B, however, that Plaintiff was ordered not to 23 return to the library for a one-week period, but she could appeal the revocation of her 24 library privileges and was required to schedule a meeting with the City Librarian prior 25 to returning to the library in order to review the Standards of Behavior Policy. Id. at 26 11. Plaintiff, therefore, fails to plausibly allege a violation of her civil rights of the 27 ADA based upon her removal from the library. 1 As a result of the Complaint’s lack of clarity and specificity, the Court cannot 2 decipher the nature of Plaintiff’s claims or the relief sought. The Complaint, thus, 3 fails to provide Defendants adequate notice of the legal claims being asserted against 4 them, or the factual basis for such claims. See McHenry, 84 F.3d at 1176. Ultimately, 5 the Complaint, “leav[es] it to the Court to figure out what the full array of [Plaintiff’s] 6 claims is and upon what federal law, and upon what facts, each claim is based,” and is, 7 therefore, subject to dismissal. Little v. Baca, No. CV 13–0373-PA (RZ),

436018, at *3 (C.D. Cal. Feb. 1, 2013); see also Clayburn v. Schirmer, No. CIV S-06- 9 2182 ALA (P),

, at *3-4 (E.D. Cal. Feb. 28, 2008) (Alarcón, Circuit J., 10 sitting by designation) (dismissing “long, rambling pleading” under Rule 8 and noting 11 that “[t]he court (and any defendant) should be able to read and understand Plaintiff’s 12 pleading within minutes”). 13 Accordingly, the Complaint is subject to dismissal for failure to comply with 14 Rule 8. See McHenry, 84 F.3d at 1177.

LEAVE TO FILE A FIRST AMENDED COMPLAINT 17 For the foregoing reasons, the Complaint is subject to dismissal. As the Court 18 is unable to determine whether amendment would be futile, leave to amend is granted. 19 See Lucas v. Dep’t of Corr.,

(9th Cir. 1995) (per curiam). Plaintiff is 20 advised that the Court’s determination herein that the allegations in the Complaint are 21 insufficient to state a particular claim should not be seen as dispositive of that claim. 22 Accordingly, while the Court believes Plaintiff has failed to plead sufficient factual 23 matter in her pleading, accepted as true, to state a claim to relief that is viable on its 24 face, Plaintiff is not required to omit any claim in order to pursue this action. 25 However, if Plaintiff asserts a claim in her First Amended Complaint that has been 26 found to be deficient without addressing the claim’s deficiencies, then the Court, 27 pursuant to the provisions of

, ultimately will submit to the assigned 1 failure to state a claim, subject to Plaintiff’s right at that time to file Objections with 2 the district judge as provided in the Local Rules Governing Duties of Magistrate 3 Judges. 4 Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the 5 service date of this Order, Plaintiff choose one of the following two options: 6 1. Plaintiff may file a First Amended Complaint to attempt to cure the 7 deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a 8 blank Central District civil rights complaint form to use for filing the First 9 Amended Complaint, which the Court encourages Plaintiff to use. 10 If Plaintiff chooses to file a First Amended Complaint, she must clearly 11 designate on the face of the document that it is the “First Amended Complaint,” it 12 must bear the docket number assigned to this case, and it must be retyped or 13 rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not 14 include new defendants or allegations that are not reasonably related to the claims 15 asserted in the Complaint. In addition, the First Amended Complaint must be 16 complete without reference to the Complaint, or any other pleading, attachment, or 17 document. 18 An amended complaint supersedes the preceding complaint. Ferdik v. 19 Bonzelet,

(9th Cir. 1992). After amendment, the Court will treat 20 all preceding complaints as nonexistent.

Because the Court grants Plaintiff 21 leave to amend as to all her claims raised here, any claim raised in a preceding 22 complaint is waived if it is not raised again in the First Amended Complaint. 23 Lacey v. Maricopa Cty.,

(9th Cir. 2012). 24 The Court advises Plaintiff that it generally will not be well-disposed toward 25 another dismissal with leave to amend if Plaintiff files a First Amended Complaint 26 that continues to include claims on which relief cannot be granted. “[A] district 27 court’s discretion over amendments is especially broad ‘where the court has already 1 of Orange,

(C.D. Cal. 2012); see also Ferdik,

1261. Thus, if Plaintiff files a First Amended Complaint with claims on which 3 relief cannot be granted, the First Amended Complaint will be dismissed 4 without leave to amend and with prejudice. 5 2. Alternatively, Plaintiff may voluntarily dismiss the action without 6 prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is 7 directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court 8 encourages Plaintiff to use if he chooses to voluntarily dismiss the action. 9 Plaintiff is explicitly cautioned that failure to timely respond to this 10 Order will result in this action being dismissed with prejudice for failure to 11 state a claim, or for failure to prosecute and/or obey Court orders pursuant to 12 Federal Rule of Civil Procedure 41(b). 13 14 Dated: January 08, 2020

15 HONORABLE KENLY KIYA KATO United States Magistrate Judge 16

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