(PS)Meeks v. Butte County Children's Services Division

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JANAI MEEKS, et al., No. 2:21-cv-0049 KJM DB PS 12 Plaintiffs, 13 v. ORDER BUTTE COUNTY CHILDREN’S SERVICES DIVISION and OROVILLE POLICE DEPARTMENT, 16 Defendants.

18 Plaintiff Janai Meeks is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the court are plaintiff’s second amended complaint, motions to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and a motion to appoint counsel. (ECF Nos. 2, 6, 8-9.) The second amended complaint concerns an alleged unlawful seizure by the defendants.

23 The court is required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Here, plaintiff’s second amended complaint is deficient. Accordingly, for the reasons stated below, plaintiff’s second amended complaint will be dismissed with leave to file a third amended complaint.

28 //// I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis applications make the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, the court is required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 5 1122, 1129 (9th Cir. 2000) (en banc). A determination that a plaintiff qualifies financially for in forma pauperis status does not complete the inquiry required by the statute.

7 “‘A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed IFP because it appears from the face of the amended complaint that McGee’s action is frivolous or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

18 The court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

26 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

8 The minimum requirements for a civil complaint in federal court are as follows: 9 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 10 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 11 judgment for the relief the pleader seeks.

12 Fed. R. Civ. P. 8(a).

13 II. Plaintiff’s Second Amended Complaint 14 Plaintiff’s second amended complaint is deficient in several respects. First, the relief sought by the second amended complaint is entirely unclear, as it seeks “to dismiss the case and return my son.” (Sec. Am. Compl. (ECF No. 60 at 8.) Moreover, the second amended complaint fails to contain a short and plain statement of a claim upon which relief can be granted. In this regard, the second amended complaint consists of vague and conclusory factual allegations, interspersed with vague and conclusory assertions of claims. For example, the second amended complaint begins by stating various counts, “Count I Equal protection of the law,” “Count II Cruel and unusual punishment,” “Counter III Juvenile Court,” etc., without stating the elements of any claim or even identifying a defendant who is alleged to have engaged in the wrongful conduct. (Id. at 1.)

24 Thereafter, the second amended complaint provides vague and conclusory allegations, almost entirely devoid of basic facts such as the when, where, and who, related to the allegations.

26 For example, the second amended complaint alleges that the “act of placing three of Plaintiff’s children with their father’s provided a drastic misrepresentation.” (Id. at 2.) The import of this sentence is entirely unclear.

1 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.

10 It appears that the second amended complaint is alleging that plaintiff’s minor children were, placed “with their father’s,” as a result of plaintiff’s “homelessness,” and positive drug test.

12 (Sec. Am. Compl. (ECF No. 6) at 2.) Plaintiff is advised that “[t]wo provisions of the Constitution protect the parent-child relationship from unwanted interference by the state: the Fourth and the Fourteenth Amendments.” Kirkpatrick v. County of Washoe, 843 F.3d 784, 788 (9th Cir. 2016).

16 Pursuant to the Fourteenth Amendment “[o]fficials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). Pursuant to the Fourth Amendment, “Officials, including social workers, who remove a child from its home without a warrant must have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.” Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007); see also Kirkpatrick, 843 F.3d at 790.

25 Here, the second amended complaint fails to state with specificity how any named defendant violated plaintiff’s rights under the Fourth or Fourteenth Amendment. The second amended complaint also makes a vague reference to a “terry stop[.]” (Sec. Am. Compl. (ECF No. 6) at 1.) Plaintiff is advised that a complaint may state a claim under 42 U.S.C. § 1983 for violation of the Fourth Amendment due unlawful seizure based upon a false arrest. To state such a claim a complaint must allege facts showing that the defendant “by means of physical force or show of authority . . . in some way restrained the liberty of” the identified plaintiff. Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) (citing Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968) and Brower v. County of lnyo, 489 U.S. 593, 596 (1989)). “A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification.” Dubner v. City and County of San Francisco, 266 F.3d 959, 964-65 (9th Cir. 2001).

9 The second amended complaint also makes vague reference to Butte County and the Oroville Police Department. Plaintiff is advised that “[i]n Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality may not be held liable for a § 1983 violation under a theory of respondeat superior for the actions of its subordinates.”

13 Castro, 833 F.3d at 1073. In this regard, “[a] government entity may not be held liable under 42 14 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694).

17 In order to allege a viable Monell claim against Butte County or the Oroville Police Department plaintiff “must demonstrate that an ‘official policy, custom, or pattern’ on the part of [the defendant] was ‘the actionable cause of the claimed injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three ways a “policy” can be established. See Clouthier, 591 F.3d at 1249-50.

23 “First, a local government may be held liable ‘when implementation of its official policies or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 436 U.S. 25 at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to implement procedural safeguards to prevent constitutional violations” or fails to adequately train its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that “the need for more or different training [was] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose liability against a county for its failure to act, a plaintiff must show: (1) that a county employee violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that amount to deliberate indifference; and (3) that these customs or policies were the moving force behind the employee’s violation of constitutional rights.”). “Third, a local government may be held liable under § 1983 when ‘the individual who committed the constitutional tort was an official with final policy-making authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)).

14 However, a complaint alleging a Monell violation “‘may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the specific content of the municipal entity’s alleged policy or custom.”).

24 II. Appointment of Counsel 25 On September 9, 2021, plaintiff filed a request seeking the appointment of counsel.

26 Plaintiff is informed that federal district courts lack authority to require counsel to represent indigent plaintiffs in civil cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). The court may request the voluntary assistance of counsel under the federal in forma pauperis statute, but only under exceptional circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and the plaintiff’s ability to articulate his or her claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 6 F.2d 952, 954 (9th Cir. 1983).

7 Here, the undersigned cannot yet evaluate the plaintiff’s likelihood of success in the absence of a complaint that states a claim.

9 III. Further Leave to Amend 10 For the reasons stated above plaintiff’s second amended complaint must be dismissed.

11 The undersigned has carefully considered whether plaintiff may further amend the complaint to state a claim upon which relief can be granted and over which the court would have jurisdiction.

13 “Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.”

14 California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have to allow futile amendments).

18 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988)).

26 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. Plaintiff’s second amended complaint will therefore be dismissed, and plaintiff will be granted leave to file a third amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file a third amended complaint “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

4 Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. 7 at 557).

8 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an amended complaint complete. Local Rule 220 requires that any amended complaint be complete in itself without reference to prior pleadings. The third amended complaint will supersede second amended complaint just as the amended complaint superseded the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a third amended complaint, just as if it were the initial complaint filed in the case, each defendant must be listed in the caption and identified in the body of the complaint, and each claim and the involvement of each defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include concise but complete factual allegations describing the conduct and events which underlie plaintiff’s claims.

18 CONCLUSION 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The second amended complaint filed August 2, 2021 (ECF No. 6) is dismissed with leave to amend.

22 2. Within twenty-eight days from the date of this order, a third amended complaint shall be filed that cures the defects noted in this order and complies with the Federal Rules of Civil Procedure and the Local Rules of Practice.1 The third amended complaint must bear the case number assigned to this action and must be titled “Third Amended Complaint”.

1 Alternatively, if plaintiffs no longer wish to pursue this action plaintiff may file a notice of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.

1 3. Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed.

3 DATED: October 28, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE