1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT JAMES DUDASH; MIRANDA Case No.: 22-cv-334-CAB-BLM YVETTE O’CALLAGHAN DUDASH; 12 ORDER SCREENING SECOND Plaintiffs, 13 AMENDED COMPLAINT v. PURSUANT TO 28 U.S.C. 14 §§ 1915(e)(2) AND 1915A(b) ANGELICA ULLOA; SAN DIEGO 15 POLICE DEPARTMENT SERGEANT 16 ELLISON; OFFICER CALVIN; OFFICER BECERRA; OFFICER 17 ZAVAL; SDPD; and 8911 BALBOA 18 WELFARE AGENCY, 19 Defendants. 20 21 On July 28, 2022, the Court held a hearing in this matter where it dismissed Plaintiff 22 Robert Dudash’s Amended Complaint [Doc. No. 7] and granted him leave to file a second 23 amended complaint remedying the issues discussed on the record. [Doc. No. 14.] On 24 August 12, 2022, Mr. Dudash filed a second amended complaint (“SAC”) with himself and 25 Miranda Yvette O’Callaghan Dudash as plaintiffs. [Doc. No. 15.] The Court previously 26 granted Mr. Dudash’s motion to proceed in forma pauperis (“IFP”). [Doc. No. 6.] Because 27 Mr. Dudash continues to proceed IFP in this matter, the Court will screen the SAC pursuant 28 to

(e)(2) and 1915A(b). 1 A complaint filed by any person seeking to proceed IFP pursuant to

1915(a) is subject to sua sponte dismissal if it is “frivolous or malicious; fails to state a 3 claim upon which relief may be granted; or seeks monetary relief against a defendant who 4 is immune from such relief.”

(e)(2)(B); Calhoun v. Stahl,

, 5 845 (9th Cir. 2001) (“[T]he provisions of

(e)(2)(B) are not limited to 6 prisoners.”); see also Chavez v. Robinson,

(9th Cir. 2016) (noting 7 that § 1915(e)(2)(B) “mandates dismissal—even if dismissal comes before the defendants 8 are served”). Congress enacted this safeguard because “a litigant whose filing fees and 9 court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive 10 to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 11

(1992) (quoting Neitzke v. Williams,

(1989)). 12 Complaints must also comply with Federal Rule of Civil Procedure 8, which requires 13 that each pleading include a “short and plain statement of the claim,” FED. R. CIV. P. 14 8(a)(2), and that each allegation “be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1). 15 See Ashcroft v. Iqbal,

(2009). In addition to the grounds for sua 16 sponte dismissal set out in § 1915(e)(2), the district court may dismiss a complaint for 17 failure to comply with Rule 8 if it fails to provide the defendant fair notice of the wrongs 18 allegedly committed. See Cafasso, United States ex rel. v. General Dynamics C4 Systems, 19 Inc.,

(9th Cir. 2011) (citing cases upholding Rule 8 dismissals where 20 pleadings were “verbose,” “confusing,” “distracting, ambiguous, and unintelligible,” 21 “highly repetitious,” and comprised of “incomprehensible rambling”). 22 As currently pleaded, the Court finds sufficient allegations in the SAC for Plaintiff’s 23 section 1983 claim for violation of his Fourteenth Amendment rights to survive the sua 24 sponte screening required by

(e)(2) and 1915A(b).1 Mr. Dudash alleges 25 26 27 1 Although Mr. Dudash’s section 1983 claim survives sua sponte screening under

(e)(2) and 1915A(b), the Court does not make a finding as to whether the SAC’s allegations are sufficient to 28 1 that on December 23, 2021, his children were removed from his custody without a warrant 2 and without exigent circumstances present. [Doc. No. 15 at 3.] Specifically, Mr. Dudash 3 alleges that Child Protective Services (“CPS”) agent Angelica Ulloa, San Diego Police 4 Department (“SDPD”) Sergeant Ellison, and SDPD officers Calvin, Zaval, and Becerra 5 arrived at his home, did not present a warrant or answer Mr. Dudash’s questions, and took 6 his two children away from him. [Id.] Accordingly, Mr. Dudash’s claim brought under 7 section 1983 may proceed against Defendants Ulloa, Ellison, Calvin, Zaval, and Becerra. 8 Although the SAC alludes to these five Defendants making false statements on court 9 documents, it does not allege any specific statements made or explain the context for such 10 statements. Mr. Dudash also makes an unspecified claim for damages that is ambiguous 11 and confusing. See Cafasso,

. The Court therefore DISMISSES any 12 claims asserted in the SAC relating to perjury and/or false statements for failure to state a 13 claim that complies with Rule 8. See Lopez v. Smith,

(9th Cir. 2000) 14 (en banc) (“[S]ection 1915(e) . . . requires a district court to dismiss an in forma pauperis 15 complaint that fails to state a claim.”). 16 Additionally, the SAC provides no explanation for who Mr. Dudash’s co-plaintiff 17 Miranda Yvette O’Callaghan Dudash is, what rights of hers were allegedly violated, or 18 why she is a plaintiff in this matter. Although Miranda O’Callaghan Dudash signed the 19 SAC, it contains insufficient allegations to provide Defendants fair notice of the wrongs 20 allegedly committed against her. See Cafasso,

. Accordingly, the Court 21 DISMISSES any claims asserted by Miranda Yvette O’Callaghan Dudash against any of 22 the named Defendants for failure to state a claim that complies with Rule 8. 23 For the foregoing reasons, it is hereby ORDERED as follows: 24 1. The Clerk of the Court shall issue a summons as to the SAC [Doc. No. 15] upon 25 Defendants Ulloa, Ellison, Calvin, Zaval, and Becerra and forward it to Mr. 26 Dudash along with a blank United States Marshal Form 285 (USM-285) for each 27 Defendant. In addition, the Clerk is directed to provide Mr. Dudash with a 28 certified copy of this Order and a certified copy of his SAC. Upon receipt of 1 these documents, Mr. Dudash is directed to complete the Form 285’s as 2 completely and accurately as possible, and to return them to the United States 3 Marshal according to the instructions provided by the Clerk in the letter 4 accompanying the mailed documents. 5 2. Upon receipt, the United States Marshal shall serve a copy of the SAC, summons, 6 this order, and the order granting leave to proceed IFP [Doc. No. 6] upon 7 Defendants Ulloa, Ellison, Calvin, Zaval, and Becerra as directed by Mr. Dudash 8 on U.S. Marshal Form 285. All costs of service shall be advanced by the United 9 States. See

(d); FED. R. Civ. P. 4(c)(3). 10 3. Mr. Dudash shall serve upon Defendants or, if appearance has been entered by 11 counsel, upon Defendants’ counsel, a copy of every further pleading or other 12 document submitted for consideration of the Court. Mr. Dudash shall include 13 with the original paper to be filed with the Clerk of the Court a certificate stating 14 the manner in which a true and correct copy of any document was served on 15 Defendants or Defendants’ counsel and the date of service. Any paper received 16 by a District Judge or Magistrate Judge that has not been filed with the Clerk or 17 that fails to include a Certificate of Service will be disregarded. 18 4. Any claims asserted in the SAC for perjury and/or false statement are 19 DISMISSED. 20 5. Any claims asserted in the SAC by Miranda Yvette O’Callaghan Dudash are 21 DISMISSED. 22 It is SO ORDERED. 23 ||Dated: August 23, 2022 € Z 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 28