-JLT Wiley v. The State of California et al, No. 1:2011cv00866 - Document 7 (E.D. Cal. 2011)
Court Description: ORDER GRANTING 4 6 Motion to Proceed IFP; ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 7/23/2011. Amended Complaint due by 8/18/2011). (Sant Agata, S)
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-JLT Wiley v. The State of California et al Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ANTHONY WILEY, SR., ) ) ) Plaintiff, ) v. ) ) THE STATE OF CALIFORNIA, et al., ) ) ) Defendants. ) _____________________________________ ) Case No.: 1:11-cv-00866 LJO JLT ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (Docs. 4, 6) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1) Plaintiff Anthony Wiley, Sr. (“Plaintiff”) seeks to proceed pro se and in forma pauperis in 18 this action, which he commenced on May 27, 2011, by filing his complaint and first application 19 to proceed in forma pauperis. (Docs. 1, 2). For the following reasons, Plaintiff’s motion to 20 proceed in forma pauperis is GRANTED, and his complaint is DISMISSED WITH LEAVE 21 TO AMEND. 22 I. Procedural History 23 On June 2, 2011, the Court reviewed Plaintiff’s application and complaint, and noted 24 Plaintiff obtained a business license and was “actively engaged in operating a recycling 25 business,” which was paid more than $22,000 since the license was issued on December 9, 2010. 26 (Doc. 3 at 1). The Court ordered Plaintiff to file an amended application to disclose his income 27 and use of funds on a home under construction. Id. at 2. 28 Plaintiff filed an amended application on June 21, 2011 (Doc. 4), which the Court 1 Dockets.Justia.com 1 reviewed on June 30, 2010. (Doc. 5). The Court noted Plaintiff failed to comply with the 2 Court’s order to disclose his income from his “business, profession or other self-employment.” 3 (Doc. 5 at 2). Accordingly, the Court ordered Plaintiff to submit a complete amended 4 application, signed under penalty of perjury, in which he was to disclose (1) the amount of 5 income received within the last 12 months from any business, profession, or self employment 6 and (2) the source of funds used to construct his home. Id. at 3. 7 On July 7, 2011, Plaintiff filed second amended application to proceed without 8 prepayment of fees. (Doc. 6). Plaintiff asserts he received $18,573.76 from Sierra Iron, Metal 9 and Demolition between April 6 and December 9, 2010. Id. at 3. The income from Plaintiff’s 10 business “WITCO” was $22,009.53 from December 10, 2010 through January 3, 2011. Id. In 11 addition, Plaintiff received supplemental security income in the amount of $10,046.33 over the 12 last twelve months.1 Further, Plaintiff asserts no income was used in 2010 to construct his home, 13 beyond the purchase of a cement mixer valued at $3,000. Id. 14 II. Application to proceed in forma pauperis 15 The Court may authorize the commencement of an action without prepayment of fees 16 when an individual “submits an affidavit that includes a statement of all assets such person . . . 17 possesses [and] that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 18 1915(a). Thought the Court has serious concerns about Plaintiff’s past candor regarding his 19 financial condition,2 the Court has reviewed the applications and has determined Plaintiff has 20 made an adequate showing of indigence to satisfy the requirements of 28 U.S.C. § 1915(a). 21 Therefore, Plaintiff’s motion to proceed in forma pauperis is GRANTED. 22 III. Screening Requirement 23 24 When a plaintiff is proceeding in forma pauperis, the Court is required to review the complaint, and shall dismiss the case at any time if the Court determines that the allegation of 25 26 27 28 1 Plaintiff failed to include the amount received in Social Security benefits. However, with a previous application, Plaintiff attached a copy of a letter from the SSA, which indicated Plaintiff receives $830.40 per month, and his total income from June 2010 to June 2011 was $10,046.33. 2 Plaintiff is reminded, once again, of his obligation to be forthright with the Court at all times. 2 1 poverty is untrue, or the action or appeal is “frivolous, malicious or fails to state a claim on 2 which relief may be granted; or . . . seeks monetary relief against a defendant who is immune 3 from such relief.” 28 U.S.C. 1915(e)(2). A claim is frivolous “when the facts alleged arise to the 4 level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts 5 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). 6 IV. Pleading Standards 7 General rules for pleading complaints are governed by the Federal Rules of Civil 8 Procedure. A pleading stating a claim for relief must include a statement affirming the court’s 9 jurisdiction, “a short and plain statement of the claim showing the pleader is entitled to relief; 10 and . . . a demand for the relief sought, which may include relief in the alternative or different 11 types of relief.” Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro 12 se pleadings are held to “less stringent standards” than pleadings drafted by attorneys. Haines v. 13 Kerner, 404 U.S. 519, 521-21 (1972). 14 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain 15 and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). 16 The purpose of the complaint is to give the defendant fair notice of the claims against him, and 17 the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 18 (2002). The Supreme Court noted, 19 20 21 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me unlawfully accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. 22 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). 23 Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 24 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, 25 26 27 28 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it 3 1 “stops short of the line between possibility and plausibility of ‘entitlement to relief. 2 Iqbal, 129 S.Ct. at 1949. Where the factual allegations are well-pled, a court should assume their 3 truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in 4 the pleading are not entitled to the same assumption of truth. Id. If the Court determines that the 5 complaint fails to state a cognizable claim, the Court may grant leave to amend to the extent that 6 deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 7 1127-28 (9th Cir. 2000) (en banc). 8 V. Discussion and Analysis 9 Plaintiff alleges he “a convicted felon, African-American disabled person . . . who was 10 engaged in collecting rubbish, wood[], crv’s (cans and bottles) and ferrous and non-ferrous 11 metals in the State of California.” (Doc. 1 at 3). According to Plaintiff, he was influenced by 12 defendants Sierra Iron and Metal (“Sierra Iron”) and Sierra Recycling and Demolition (“Sierra 13 Recycling”) to obtain a fictitious business license, and that the companies used the license “to 14 deprive Plaintiff of equal pay.” Id. Also, Plaintiff asserts all defendants made “false allegations 15 of theft” of materials from Sierra Recycling and Demolition “to cover up federal payment rules 16 violations performed by defendants.” Id. 17 Plaintiff asserts that on January 4, 2011, Defendants “hijacked” his cargo, and officers of 18 the Kern County Sheriff’s Department questioned Plaintiff “without identifying themselves as 19 Peace Officers . . . question[ed] Plaintiff without counsel and imprisoned Plaintiff.” (Doc. 1 at 20 5). Plaintiff asserts he was arrested by the Kern County Sheriff’s Department, which “fabricated, 21 perpetuated and carried out a criminal arrest, illegal search of vehicle and [c]ombination trailer 22 where goods for trade were located.” Id. at 4. 23 For these acts, Plaintiff raises causes of action against the State of California, Producers 24 Dairy, Sierra Recycling, Sierra Iron, D. Weigand, M. Felli, W. Reed, R. Winn, and “Does 1 25 through 21” for: (1) a violation of RICO, (2) a hate crime against a disabled person, (3) corporate 26 fraud, and (4) false imprisonment. (Doc. 1 at 1). 27 /// 28 /// 4 1 A. Liability of the State of California 2 The Eleventh Amendment provides: “The Judicial power the United States shall not be 3 construed to extend to any suit in law or equity, commenced or prosecuted against one of the 4 United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. 5 Const. amend XI. Thus, Plaintiff may no seek damages against the State of California in tis 6 proceeding. 7 Moreover, the immunity provided by the Eleventh Amendment applies to officials of a 8 state because “an official-capacity suit is, in all respects other than name, to be treated as a suit 9 against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). The Supreme Court has 10 opined, “Obviously, state officials literally are persons. But a suit against a state official in his or 11 her official capacity is not a suit against the official but rather is a suit against the official’s 12 office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t of State 13 Police, 491 U.S. 58, 71 (1989) (internal citations omitted). Consequently, Plaintiff is unable to 14 raise cognizable claims against State of California, or its officers in their official capacities. The 15 Complaint, as to the State and its officers in their official capacities, is DISMISSED. 16 B. Violation of RICO 17 The Racketeer Influenced and Corrupt Organizations Act (“RICO”) allows a private 18 citizen to recover damages for conduct of an enterprise through a patter of racketeering activity 19 or the collection of an unlawful debt. 18 U.S.C. § 1960, et seq. The elements of a civil RICO 20 claim are “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity 21 (known as ‘predicate acts’) (5) causing injury to plaintiff’s business or property.” Living 22 Designs, Inc. v. E.I. DuPont de Nemours * Co., 431 F.3d 353, 361 (9th Cir. 2005); see also 23 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). The RICO statute enumerates specific 24 acts which satisfy the “racketeering activity” element, such as “an act or threat involving murder, 25 kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in 26 a controlled substance or listed chemical . . .” 18 U.S.C. § 1961(1). In addition, to establish a 27 patter, Plaintiff must “show that the racketeering predicates are related [to each other] and that 28 they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell 5 1 Telephone Co., 492 U.S. 229, 239 (1989). 2 In the present case, Plaintiff’s RICO allegations are described, most generously as 3 confusing but, more accurately, as unintelligible. Simply put, the Court cannot determine what 4 are the predicate act or acts Plaintiff alleges occurred. Plaintiff allegations seem to be based 5 upon a single act which, clearly, is insufficient to demonstrate a pattern of racketeering activity. 6 See Sanford v. MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010) (a plaintiff must show two 7 or more acts constituting a pattern). Further, Plaintiff alleges he “suffered losses due to a direct 8 roll (sic) by all defendants” (Doc. 1 at 5), but fails to “show concrete proof of financial loss,” as 9 required to establish a violation. Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1087 (9th Cir. 10 2002); see also Steele v. Hospital Corp. of America, 36 F.3d 69, 71 (9th Cir. 1994) (“speculative 11 injuries do not serve . . . unless they become concrete and actual”). Consequently, Plaintiff has 12 failed to state a cognizable claim for a violation of RICO, and this claim against Defendants is 13 DISMISSED. 14 C. Hate Crime 15 Plaintiff asserts that he was the victim of a “hate crime.” However, Plaintiff fails to plead 16 whether he brings this cause of action under state or federal law or upon what statute or theory of 17 common law that makes the alleged act of “hate” actionable here. Moreover, the complaint fails 18 to detail any factual allegations to support his naked assertion that he was the victim of a hate 19 crime such that the Court may determine the basis of these claims. Notably, Plaintiff does not 20 indicate he suffered violence, intimidation, threats, or coercion at the hands of any Defendant.3 21 Accordingly, Plaintiff’s claim for a “hate crime” is DISMISSED. 22 D. Fraud 23 Under California law, Plaintiff must show the following to establish fraud: “a false 24 representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages.” 25 Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 1996); see also Cal. Civ. Code § 1572. The 26 3 27 28 In general, a defendant who “interfered with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion” is liable under Cal Civ. Code. § 52.1, which protects the exercise or enjoyment of individual rights secured by the Constitution or laws, without regard to membership in a protected class. Austin B. v. Escondido Union School Dist., 149 Cal.App.4th 860, 882 (2007). 6 1 burden to establish fraud is “heavy,” Robi v. Five Platters, Inc., 918 F.2d 1439, 1444 (9th Cir. 2 1990), because “when fraud is alleged, ‘a party must state with particularity the circumstances 3 constituting fraud.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009), quoting 4 Fed. R. Civ. P. 9(b). 5 Here, the allegations for fraud have not been plead with specificity sufficient to meet the 6 standards of Rule 9(b), because “[a]verments of fraud must be accompanied by ‘the who, what, 7 when, where, and how’ of the misconduct charged.” Kearns, 576 F.3d at 1124, citing Vess v. 8 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1120 (9th Cir. 2003); see also Swartz v. KPMG LLP, 9 476 F.3d 756, 764 (9th Cir. 2004) (allegations of fraud must include “an account of the time, 10 place, and specific content of the false representations as well as the identities of the parties to 11 the misrepresentations”) (internal quotation marks and citation omitted). Plaintiff fails to allege 12 when or by what means Defendants made false representations to him, or to alleges facts that 13 would demonstrate a claim to damages. Therefore, Plaintiff has not stated a cognizable claim for 14 fraud, and this claim is DISMISSED. 15 E. False Imprisonment 16 False imprisonment is defined by statute as “the unlawful violation of the personal liberty 17 of another.” Cal. Pen. Code. § 236. The tort is defined identically, and consists of the 18 “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable 19 length of time, however short.” Molko v. Holy Spirit Assn., 46 Cal.3d 1092, 1123 (1988). “The 20 only mental state required to be shown for false imprisonment is the intent to confine, or to create 21 a similar intrusion.” Fermino v. FedCo. Inc., 7 Cal.4th 701, 716 (1994). Here, Plaintiff alleges 22 Kern County Sheriff’s Officers, Sierra Iron, and Sierra Recycling falsely imprisoned him on 23 January 4, 2011. (Doc. 1 at 5). 24 25 1. Liability of Officers To state a cause of action for false imprisonment, Plaintiff must state facts showing either 26 that one was unlawfully arrested and then imprisoned, or that an unreasonable delay occurred in 27 presenting the arrestee before a judge. City of Newport Beach v. Sasse, 9 Cal.App.3d 803, 810 28 (1970). However, there is no civil liability for an officer “acting within the scope of his or her 7 1 authority, for false arrest or false imprisonment arising out of any arrest” when (1) the arrest was 2 lawful, or the officer had reasonable cause to believe the arrest was lawful at the time of the 3 arrest, or (2) the arrest was made pursuant to a charge made, upon reasonable cause, of the 4 commission of a felony by the person to be arrested. Cal. Pen. Code. § 847. 5 Here, there are no allegations to support the cause of action except for the fact that the 6 charges were, ultimately, dropped. However, this fact does not establish that Plaintiff suffered a 7 false arrest. For example, Plaintiff has provide no factual allegations that the officers were acting 8 outside the scope of their duties at the time of hiss arrest, that the arrest was unlawful or that the 9 officers did not have a reasonable belief that the arrest was lawful at the time they made the 10 arrest. Consequently, Plaintiff’s allegations do not support a cognizable claim for false 11 imprisonment by the officers, and this claim is DISMISSED. 12 2. Liability of Sierra Iron and Sierra Recycling 13 Plaintiff has not plead facts connecting defendants Sierra Iron and Sierra Recycling to an 14 act of false imprisonment. Notably, the complaint demonstrates only that the officers questioned 15 Plaintiff. It does not identify any actionable conduct by the other Defendants and, in fact, fails to 16 mention them related to this claim. Therefore, Plaintiff has not stated cognizable claims for 17 false imprisonment against Sierra Iron and Sierra Recycling, and these claims are DISMISSED. 18 F. “Doe Defendants” 19 Though not named in the caption of his complaint, Plaintiff“Does 1 through 21” also 20 violated his rights. See Doc. 1 at 2. Generally, “Doe” defendants are disfavored in the Ninth 21 Circuit. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); see also Clark v. Rolling Hills 22 Casino, 2010 U.S. Dist. LEXIS 55087, at *9 (E.D. Cal. May 5, 2010). However, when the 23 identities of defendants are not known, “the plaintiff should be given an opportunity through 24 discovery to identify the unknown defendants, unless it is clear that discovery would not uncover 25 the identities, or that the complaint would be dismissed on other grounds.” Gillespie, 629 F.2d at 26 642. 27 28 Here, Plaintiff fails to state where these defendants worked and in what capacity. Plaintiff fails to describe any of the Doe individuals among these defendants, or demonstrate how 8 1 they acted in connection to the allegations discussed above to cause him harm. Plaintiff is 2 required to allege specifically how each defendant—including Doe Defendants—violated his 3 rights, and link each defendant’s actions to the violation of his rights. See West v. Atkins, 487 4 U.S. 42, 48 (1988). Furthermore, Plaintiff’s claims have been dismissed due to a lack of 5 supporting factual allegations. Consequently, Plaintiff has failed to state a cognizable claim 6 against Does 1-21, and he should not be permitted an opportunity to identify the unknown 7 defendants. The Complaint as to defendants “Does 1-21” is DISMISSED. 8 VI. Leave to Amend the Complaint 9 If the Court determines that a complaint fails to state a claim, leave to amend should be 10 granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. 11 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). A complaint, or a portion thereof, should 12 only be dismissed for failure to state a claim upon which relief may be granted if it appears 13 beyond doubt that the Plaintiff can prove no set of facts, consistent with the allegations, in 14 support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 15 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. 16 Roosevelt Lake Log Owners’ Ass’n., Inc., 651 F.2d 1289, 1294 (9th Cir. 1981). Dismissal of a 17 pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff 18 cannot prevail on the facts that he has alleged and that an opportunity to amend would be futile. 19 Lopez v. Smith, 203 F.3d 1122, 1128 (9th Cir. 2000). 20 Construing Plaintiff’s statements in his complaint liberally, the Court cannot find with 21 certainty that he cannot allege facts, consistent with allegations, in support of the claim or claims 22 that would entitle him to relief. Therefore, the Court will grant Plaintiff leave to amend the 23 complaint to cure the deficiencies in his complaint. Failure to cure the deficiencies will result in 24 a recommendation that the matter be dismissed with prejudice. 25 Plaintiff is informed that the Court cannot refer to a prior pleading in order to make 26 Plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 27 complete in itself without reference to any prior pleading. As a general rule, an amended 28 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 9 1 Once Plaintiff files an amended complaint, the original pleading no longer serves any function in 2 the case. The amended complaint must bear the docket number assigned this case and must be 3 labeled “First Amended Complaint.” Failure to file an amended complaint in accordance with 4 this order will be considered to be a failure to comply with an order of the Court, and will result 5 in dismissal of this action. 6 Accordingly, IT IS HEREBY ORDERED: 7 1. Plaintiff’s Motions to Proceed In Forma Pauperis (Docs. 4, 6) are GRANTED; 8 2. Plaintiff’s complaint (Doc. 1) is DISMISSED with leave to amend; and 9 3. Plaintiff is GRANTED twenty-one (21) days from the date of service of this order to 10 file an amended complaint that complies with the requirements of the pertinent substantive law, 11 the Federal Rules of Civil Procedure, and the Local Rules of Practice. 12 13 IT IS SO ORDERED. 14 Dated: July 23, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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