(PS) Winston v. EDC Animal Services

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CHAREL WINSTON and ALMA MARIE No. 2:19-cv-0923 MCE DB PS

WINSTON,

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13 Plaintiffs, ORDER

14 v.

15 EDC ANIMAL SERVICES, et al.,

16 Defendants.

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18 Plaintiffs Charel Winston and Alma Marie Winston are proceeding in this action pro se.

19 This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28

20 U.S.C. § 636(b)(1).

21 Pending before the undersigned are motions to dismiss filed by defendant El Dorado

22 County Superior Court and defendant County of El Dorado. (ECF No. 22.) For the reasons

23 stated below, defendants’ motions to dismiss will be granted and plaintiffs will be granted leave

24 to file an amended complaint.

25 BACKGROUND

26 Plaintiffs, proceeding pro se, commenced this action on May 22, 2019, by filing a

27 complaint and paying the required filing fee. (ECF No. 1.) The complaint alleges that plaintiffs

28 are seeking “relief from Municipal presumptions being imposed upon California State

1 Citizens[.]” (ECF No. 1 at 2.1) Defendant El Dorado County Superior Court filed a motion to

2 dismiss on July 1, 2019. (ECF No. 5.) Defendant County of El Dorado—sued herein as EDC

3 Animal Services, EDC Sheriff Office, Health and Human Services, Adult Protective Services,

4 Public Guardian, EDC Auditor-Controller and County Counsel—filed a motion to dismiss on

5 July 10, 2019. (ECF No. 7.)

6 Plaintiffs filed an opposition on September 11, 2019. (ECF No. 18.) Defendant El

7 Dorado County filed a reply on September 13, 2019. (ECF No. 20.) Defendant El Dorado

8 County Superior Court filed a reply on September 16, 2019. (ECF No. 23.) Defendants’ motions

9 were taken under submission that same day. (ECF No. 22.)

10 STANDARDS

11 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(1)

12 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by

13 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific

14 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may

15 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the

16 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp.,

17 594 F.2d 730, 733 (9th Cir. 1979).

18 When a party brings a facial attack to subject matter jurisdiction, that party contends that

19 the allegations of jurisdiction contained in the complaint are insufficient on their face to

20 demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

21 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards

22 similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes,

23 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.

24 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted

25 only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v.

26 Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003); Miranda v.

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1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF

28 system and not to page numbers assigned by the parties.

1 Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001). Nonetheless, district courts “may review

2 evidence beyond the complaint without converting the motion to dismiss into a motion for

3 summary judgment” when resolving a facial attack. Safe Air for Everyone, 373 F.3d at 1039.

4 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction, no

5 presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 F.2d

6 at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any

7 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of

8 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule

9 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden

10 of establishing that such jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733.

11 II. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

12 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

13 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

14 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

15 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

16 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

17 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

18 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

19 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

20 Iqbal, 556 U.S. 662, 678 (2009).

21 In determining whether a complaint states a claim on which relief may be granted, the

22 court accepts as true the allegations in the complaint and construes the allegations in the light

23 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

24 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less

25 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519,

26 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the

27 form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th

28 Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than

1 an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

2 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

3 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676

4 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

5 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

6 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have

7 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

8 459 U.S. 519, 526 (1983).

9 In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted

10 to consider material which is properly submitted as part of the complaint, documents that are not

11 physically attached to the complaint if their authenticity is not contested and the plaintiff’s

12 complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles,

13 250 F.3d 668, 688-89 (9th Cir. 2001).

14 ANALYSIS

15 I. Defendants’ Motions to Dismiss

16 Review of plaintiffs’ complaint and defendants’ motions to dismiss finds that the

17 complaint must be dismissed for several reasons.

18 A. Lack of Subject Matter Jurisdiction

19 Plaintiffs’ complaint does not contain a statement alleging the grounds upon which this

20 court has jurisdiction over this matter. Therefore, the complaint fails on this basis alone.

21 The minimum requirements for a civil complaint in federal court are as follows:

22 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

23 jurisdiction depends . . . , (2) a short and plain statement of the claim

showing that the pleader is entitled to relief, and (3) a demand for

24 judgment for the relief the pleader seeks.

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

26 Jurisdiction is a threshold inquiry that must precede the adjudication of any case before

27 the district court. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d

28 1376, 1380 (9th Cir. 1988). Federal courts are courts of limited jurisdiction and may adjudicate

1 only those cases authorized by federal law. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

2 377 (1994); Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992). “Federal courts are presumed

3 to lack jurisdiction, ‘unless the contrary appears affirmatively from the record.’” Casey v. Lewis,

4 4 F.3d 1516, 1519 (9th Cir. 1993) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,

5 546 (1986)).

6 Lack of subject matter jurisdiction may be raised by the court at any time during the

7 proceedings. Attorneys Trust v. Videotape Computer Prods., Inc., 93 F.3d 593, 594-95 (9th Cir.

8 1996). A federal court “ha[s] an independent obligation to address sua sponte whether [it] has

9 subject-matter jurisdiction.” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). It is the

10 obligation of the district court “to be alert to jurisdictional requirements.” Grupo Dataflux v.

11 Atlas Global Group, L.P., 541 U.S. 567, 593 (2004). Without jurisdiction, the district court

12 cannot decide the merits of a case or order any relief. See Morongo, 858 F.2d at 1380.

13 The basic federal jurisdiction statutes are 28 U.S.C. §§ 1331 and 1332, which confer

14 “federal question” and “diversity” jurisdiction, respectively. Federal jurisdiction may also be

15 conferred by federal statutes regulating specific subject matter. “[T]he existence of federal

16 jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses to

17 those claims.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality, 213 F.3d

18 1108, 1113 (9th Cir. 2000).

19 District courts have diversity jurisdiction only over “all civil actions where the matter in

20 controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and the action

21 is between: “(1) citizens of different States; (2) citizens of a State and citizens or subjects of a

22 foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are

23 additional parties; and (4) a foreign state . . . as plaintiff and citizens of a State or of different

24 States.” 28 U.S.C. § 1332. “To demonstrate citizenship for diversity purposes a party must (a) be

25 a citizen of the United States, and (b) be domiciled in a state of the United States.” Lew v. Moss,

26 797 F.2d 747, 749 (9th Cir. 1986). “Diversity jurisdiction requires complete diversity between

27 the parties-each defendant must be a citizen of a different state from each plaintiff.” In re

28 Digimarc Corp. Derivative Litigation, 549 F.3d 1223, 1234 (9th Cir. 2008).

1 B. Failure to State a Claim

2 The entirety of the complaint’s allegations read:

3 Plaintiffs bring action to obtain remedy and relief from Municipal

presumption being imposed upon California State Citizens and sue

4 for remedy and relief guaranteed to them under Title 50, Appendix 7

(c) and (e) exonerating them from all claims and charged brought by

5 the STATE OF CALIFORNIA and its franchises including the

COUNTY OF EL DORADO.

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7 (Compl. (ECF No. 1) at 2.) No further factual allegations or requests for relief are stated. The

8 complaint also fails on this basis.

9 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a

10 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that

11 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.

12 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels

13 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor

14 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

15 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,

16 557). A plaintiff must allege with at least some degree of particularity overt acts which the

17 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.

18 Plaintiffs’ opposition makes vague and conclusory allusions to the Americans with

19 Disabilities Act of 1990, 42 U.S.C. § 12101, et. seq.,(“ADA”)—although plaintiffs explicitly state

20 they “are not pleading ADA as a cause of action[.]” (Pls.’ Opp.’n (ECF No. 18) at 23.)

21 “Congress enacted the ADA ‘to provide clear, strong, consistent, enforceable standards

22 addressing discrimination against individuals with disabilities.’” Arizona ex rel. Goddard v.

23 Harkins Amusement Enterprises, Inc., 603 F.3d 666, 669 (9th Cir. 2010) (quoting 42 U.S.C. §

24 12101(b)(2)). “Title II is the portion of the ADA that applies to state and local governments.”

25 Cohen v. City of Culver City, 754 F.3d 690, 694-95 (9th Cir. 2014). “To prevail under Title II,

26 the plaintiff must show that: (1) he is a qualified individual with a disability; (2) he was either

27 excluded from participation in or denied the benefits of a public entity’s services, programs, or

28 activities, or was otherwise discriminated against by the public entity; and (3) this exclusion,

1 denial, or discrimination was by reason of his disability.” Id.

2 C. Judicial Immunity

3 With respect to defendant El Dorado County Superior Court, plaintiffs are advised that

4 judges are generally absolutely immune from civil liability for actions taken in their judicial

5 capacity. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Moreover, “[a]bsolute judicial immunity is

6 not reserved solely for judges, but extends to nonjudicial officers for ‘all claims relating to the

7 exercise of judicial functions.’” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002) (quoting Burns

8 v. Reed, 500 U.S. 478, 499 (1991) (Scalia, J., concurring in part and dissenting in part)). In this

9 regard, judicial personnel “have absolute quasi-judicial immunity from damages for civil rights

10 violations when they perform tasks that are an integral part of the judicial process.” Mullis v.

11 U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987).

12 Plaintiffs do not allege any viable claim against El Dorado County Superior Court.

13 D. Eleventh Amendment Immunity

14 The Eleventh Amendment serves as a jurisdictional bar to suits for damages brought by

15 private parties against a state or a state agency unless the state or agency consents to such suit.

16 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); see also Krainski v. Nev. ex rel. Bd. of

17 Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh

18 Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal

19 consent by the state.”); Nesbit v. Dep’t of Pub. Safety, 283 Fed. Appx. 531, 533 (9th Cir. 2008)

20 (concluding that the district court properly dismissed prisoners’ claims against defendants acting

21 in their “official capacities”); Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147 (9th

22 Cir. 2007) (“The Eleventh Amendment bars suits for money damages in federal court against a

23 state, its agencies, and state officials acting in their official capacities.”).

24 To be a valid waiver of sovereign immunity, a state’s consent to suit must be

25 “unequivocally expressed in the statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996).

26 “[T]here can be no consent by implication or by use of ambiguous language.” United States v.

27 N.Y. Rayon Importing Co., 329 U.S. 654, 659 (1947). Courts must “indulge every reasonable

28 presumption against waiver,” Coll. Sav. Bank v. Florida Prepaid, 527 U.S. 666, 682 (1999), and

1 waivers “must be construed strictly in favor of the sovereign and not enlarged beyond what the

2 [statutory] language requires.” United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)

3 (citations, ellipses, and internal quotation marks omitted). “To sustain a claim that the

4 Government is liable for awards of monetary damages, the waiver of sovereign immunity must

5 extend unambiguously to such monetary claims.” Lane, 518 U.S. at 192.

6 The Ninth Circuit has recognized that “[t]he State of California has not waived its

7 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court, and

8 the Supreme Court has held that § 1983 was not intended to abrogate a State’s Eleventh

9 Amendment immunity.” Brown v. California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir.

10 2009) (quoting Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999)). “Eleventh

11 Amendment immunity also shields state officials from official capacity suits.” Krainski, 616 F.3d

12 at 967. Accordingly, a plaintiff “cannot state a claim against [a] County Superior Court (or its

13 employees), because such suits are barred by the Eleventh Amendment.” Simmons v.

14 Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003).

15 Accordingly, the complaint fails on this basis as well.

16 E. Heck Bar and Rooker-Feldman

17 Plaintiffs’ complaint makes vague reference to “claims and charges brought by the State

18 of California[.]” (Compl. (ECF No. 1) at 2.) Plaintiffs are advised that in Heck v. Humphrey,

19 512 U.S. 477 (1994), the United States Supreme Court held that a plaintiff may not prevail on §

20 1983 claim if doing so “would necessarily imply the invalidity” of plaintiff’s conviction arising

21 out of the same underlying facts as those at issue in the civil action “unless the plaintiff can

22 demonstrate that the conviction or sentence has already been invalidated.” 512 U.S. at 487.

23 Thus, “Heck says that ‘if a criminal conviction arising out of the same facts stands and is

24 fundamentally inconsistent with the unlawful behavior for which section 1983 damages are

25 sought, the 1983 action must be dismissed.’” Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.

26 2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)). “Consequently, ‘the

27 relevant question is whether success in a subsequent § 1983 suit would ‘necessarily imply’ or

28 ‘demonstrate’ the invalidity of the earlier conviction or sentence[.]” Beets v. County of Los

1 Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Smithart, 79 F.3d at 951).

2 Additionally, under the Rooker-Feldman doctrine a federal district court is precluded from

3 hearing “cases brought by state-court losers complaining of injuries caused by state-court

4 judgments rendered before the district court proceedings commenced and inviting district court

5 review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

6 U.S. 280, 284 (2005). The Rooker-Feldman doctrine applies not only to final state court orders

7 and judgments, but to interlocutory orders and non-final judgments issued by a state court as well.

8 Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide

9 Church of God v. McNair, 805 F.2d 888, 893 n. 3 (9th Cir. 1986).

10 The Rooker-Feldman doctrine prohibits “a direct appeal from the final judgment of a state

11 court,” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003), and “may also apply where the parties

12 do not directly contest the merits of a state court decision, as the doctrine prohibits a federal

13 district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a

14 state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)

15 (internal quotation marks omitted). “A suit brought in federal district court is a ‘de facto appeal’

16 forbidden by Rooker-Feldman when ‘a federal plaintiff asserts as a legal wrong an allegedly

17 erroneous decision by a state court, and seeks relief from a state court judgment based on that

18 decision.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Noel, 341 F.3d

19 at 1164); see also Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker-Feldman

20 doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in

21 ‘which a party losing in state court’ seeks ‘what in substance would be appellate review of the

22 state judgment in a United States district court, based on the losing party’s claim that the state

23 judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De Grandy, 512 U.S.

24 997, 1005-06 (1994), cert. denied 547 U .S. 1111 (2006)). “Thus, even if a plaintiff seeks relief

25 from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also

26 alleges a legal error by the state court.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013).

27 [A] federal district court dealing with a suit that is, in part, a

forbidden de facto appeal from a judicial decision of a state court

28 must refuse to hear the forbidden appeal. As part of that refusal, it

1 must also refuse to decide any issue raised in the suit that is

‘inextricably intertwined’ with an issue resolved by the state court in

2 its judicial decision.

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Doe, 415 F.3d at 1043 (quoting Noel, 341 F.3d at 1158); see also Exxon, 544 U.S. at 286 n. 1 (“a

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district court [cannot] entertain constitutional claims attacking a state-court judgment, even if the

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state court had not passed directly on those claims, when the constitutional attack [is]

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‘inextricably intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 n.

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16)); Bianchi v. Rylaarsdam, 334 F.3d 895, 898, 900 n. 4 (9th Cir. 2003) (“claims raised in the

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federal court action are ‘inextricably intertwined’ with the state court’s decision such that the

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adjudication of the federal claims would undercut the state ruling or require the district court to

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interpret the application of state laws or procedural rules”) (citing Feldman, 460 U.S. at 483 n. 16,

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485).

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13 Plaintiffs’ complaint alleges no claim regarding “claims and charges brought by the State

14 of California[.]”, and as such fails.

15 II. Leave to Amend

16 For the reasons stated above defendants’ motions to dismiss must be granted. The

17 undersigned has carefully considered whether plaintiffs may amend the complaint to state a claim

18 upon which relief can be granted. “Valid reasons for denying leave to amend include undue

19 delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan

20 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath

21 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall

22 be freely given, the court does not have to allow futile amendments).

23 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff

24 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts

25 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

26 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.

27 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

28 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

1 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

2 1988)).

3 Here, given the extremely vague and conclusory nature of the complaint’s allegations, the

4 undersigned cannot yet say that it appears beyond doubt that granting leave to amend would be

5 futile. Accordingly, the complaint will be dismissed, and plaintiffs will be granted leave to file

6 an amended complaint. Plaintiffs are cautioned, however, that if plaintiffs elects to file an

7 amended complaint “the tenet that a court must accept as true all of the allegations contained in a

8 complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of

9 action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678.

10 “While legal conclusions can provide the complaint’s framework, they must be supported by

11 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line

12 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).

13 Plaintiffs are also reminded that the court cannot refer to a prior pleading in order to make

14 an amended complaint complete. Local Rule 220 requires that any amended complaint be

15 complete in itself without reference to prior pleadings. In this regard, the amended complaint will

16 supersede the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an

17 amended complaint, just as if it were the initial complaint filed in the case, each defendant must

18 be listed in the caption and identified in the body of the complaint, and each claim and the

19 involvement of each defendant must be sufficiently alleged. Any amended complaint which

20 plaintiff may elect to file must also include concise but complete factual allegations describing

21 the conduct and events which underlie plaintiffs’ claims.

22 CONCLUSION

23 Accordingly, IT IS HEREBY ORDERED that:

24 1. Defendant El Dorado County Superior Court’s July 1, 2019 motion to dismiss (ECF

25 No. 5) is granted;

26 2. Defendant El Dorado County’s July 10, 2019 motion to dismiss (ECF No. 7) is

27 granted;

28 3. Plaintiffs’ May 22, 2019 complaint is dismissed with leave to amend;

1 4. Within twenty-eight days from the date of this order, an amended complaint shall be

2 | filed that cures the defects noted in this order and complies with the Federal Rules of Civil

3 | Procedure and the Local Rules of Practice.” The amended complaint must bear the case number

4 | assigned to this action and must be titled “Amended Complaint”; and

5 5. Plaintiffs are cautioned that the failure to comply with this order in a timely manner

6 | may result in a recommendation that this action be dismissed.

7 | Dated: February 4, 2020

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10 .B ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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DB\orders\orders.pro se\winston0923.mtd.ord

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* Alternatively, if plaintiffs no longer wish to pursue this action plaintiffs may file a notice of

28 | voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.

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