# Zayin Zari Bey v. Los Angeles County Sheriff Department

> District Court, C.D. California · December 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10039722

## Case

- **Court:** District Court, C.D. California
- **Decided:** December 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10039722

## How later opinions describe it (automated extraction)

- affirming “dismissal of [plaintiff’s] claims 11 under 18 U.S.C. §§ 241 and 242 because these are criminal statutes that do not give rise to 12 civil liability”
- affirming denial of leave to amend where additional claims “advance different 17 legal theories and require proof of different facts”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 ZAYIN-ZARI BEY, Case No. CV 20-7458 VAP (PVC)
12 Plaintiff,
ORDER DISMISSING COMPLAINT
13 v. WITH LEAVE TO AMEND
14 LOS ANGELES SHERIFF
DEPARTMENT, et al.,
15
Defendants.
16
17
18 I.
19 INTRODUCTION
20
21 On August 17, 2020, Plaintiff Zayin-Zari Bey (“Plaintiff”), a California resident
22 proceeding pro se, constructively filed a civil complaint purportedly pursuant to 28 U.S.C.
23 § 1332. (“Complaint,” Dkt. No. 1). On August 26, 2020, the Court granted Plaintiff’s
24 application for in forma pauperis (“IFP”) status. (Dkt. No. 5).
25
26 In civil actions where the plaintiff is proceeding IFP, Congress requires district
27 courts to dismiss the complaint if the court determines that the complaint, or any portion
28 thereof, (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be
1 granted, or (3) seeks monetary relief from a defendant who is immune from such relief.
2 28 U.S.C. § 1915(e)(2). For the reasons stated below, the Complaint is DISMISSED with
3 leave to amend.
4
5 II.
6 ALLEGATIONS OF THE COMPLAINT
7
8 According to caption of the Complaint and the list of Defendants, Plaintiff sues the
9 “Los Angeles Sheriff’s Department” [sic] (“LASD”), LASD Sheriff Alex Villanueva,
10 Deputy Sheriffs Ronald Reynolds and D. Perez, and Captain of the LASD’s Metrolink
11 Bureau, Edward C. Wells. (Complaint at 1-2).1 Although every Defendant, like Plaintiff,
12 is a citizen of California, Plaintiff asserts that this Court has diversity jurisdiction over this
13 matter. (Id. at 1, 4).
14
15 Plaintiff’s allegations in the Complaint and its many attachments are difficult to
16 summarize in a coherent narrative and are largely nonsensical. The “Complaint” consists
17 of a form “Demand for the Conversion of Property,” (id. at 1-5), attached to which is a
18 seemingly random collection of documents, including (1) two Notices of Lien, (id. at 6-7);
19 (2) an “Affidavit of Truth” referencing “Bill of Attainder #AA742660,” (id. at 8-11);
20 (3) an “Affidavit of Obligation Commercial Lien,” again referencing “Bill of Attainder
21 #AA742660,” with a “Certificate of Non-Response,” (id. at 12-16); (4) a “Notice of Fault
22 and Opportunity to Cure,” (id. at 17-19); (5) a “Notice of Default,” (id. at 20-22); (6) an
23 “Affidavit of Facts; Notice of Motion for Speedy Trial by Jury” captioned for the Superior
24 Court of California, San Bernardino County, (id. at 23-25); (7) an LASD Watch
25 Commander’s Service Comment Report, (id. at 26); (8) a letter from the Office of the
26 Sheriff, County of Los Angeles, Hall of Justice, (id. at 27); (9) a Notice to Appear and a
27
1 The Court will cite to the pages of the Complaint and its attachments as though they
28 were consecutively paginated, following the electronic page numbers assigned by the
1 record of Verbal Notice by Peace Officer, DMV or Court Employee, (id. at 28-29); (10) a
2 cover sheet for “Exhibit A,” with the subject “Contracts Given to Alleged Deputy at the
3 time of the unlawful arrest, search and seizure on date 05/22/2020,” (id. at 30); (11) a
4 document from the so-called “Moorish National Republic Federal Government”
5 purporting to convey a navigation right to the bearer and an exemption from traffic stops,
6 with a table of fines due to the bearer for improper acts by authorities, (id. at 31-32);
7 (12) an affidavit of Plaintiff Zayin-Zari Bey declaring that he has an unrestricted right of
8 travel exempting him from compliance with the Vehicle Code, (id. at 33-36); (13) a
9 Notice of Sale asserting rights due a property owner, (id. at 37-39); and (14) a proof of
10 service. (Id. at 40). The vast majority of the attachments receive no mention or
11 explanation in the Complaint.
12
13 The form Complaint itself, i.e., the “Demand for Conversion of Property,”
14 (Complaint at 1-5), is nearly devoid of facts. However, in the attachment entitled
15 “Affidavit of Truth,” Plaintiff asserts that on April 22, 2020, he was driving on a main
16 street going about 25 mph. (Id. at 8). He noticed a black and white car approaching him
17 from the rear with its “emergency lights” on. (Id.). When the car started getting too close
18 to him from behind, Plaintiff felt he was in danger, turned his car into the driveway of a
19 private property, and stopped his car. (Id.). The black and white car then stopped behind
20 Plaintiff’s vehicle. (Id.). An “alleged lawman,” later identified as Deputy Reynolds, got
21 out of the car and approached Plaintiff’s car. The officer demanded to see Plaintiff’s
22 “papers.” (Id.). Plaintiff gave Deputy Reynolds a “Charge Schedule, an Affidavit of
23 Identity and Right to Travel, as well as a Purchase Agreement” for the vehicle. (Id.).
24 Deputy Reynolds ignored those papers and demanded to see Plaintiff’s picture ID.
25 Plaintiff hesitated, but eventually handed over his “nationality card” under “duress and
26 coercion” following Deputy Reynolds’ promise that he would not tow Plaintiff’s car. (Id.
27 at 8-9).
28
1 Plaintiff asked to see Deputy Reynolds’s supervisor, which “enraged” the Deputy.
2 (Id. at 9). Deputy Reynolds also accused Plaintiff of “breaking some laws.” (Id.). Soon
3 after, “back up officers” arrived at the scene. (Id.). Plaintiff asked for the name of one of
4 the officers. (Id.). Moments later, about 40 tactical “military units” surrounded his car,
5 which frightened Plaintiff’s “family member” who was inside his car. The “armed
6 military soldiers” drew their guns at him. (Id.). Plaintiff was told to get out of his car by
7 a “masked military soldier” or else have his window broken. (Id.). Plaintiff and his
8 cousin, who was in the vehicle, were forced out of the car and placed in handcuffs in a
9 police car. (Id.). Plaintiff claims the handcuffs caused him extreme pain. (Id.).
10
11 An officer approached Plaintiff and demanded that he “give him information in
12 exchange for [his] guaranteed release from [the officer’s] custody.” (Id.). Plaintiff said
13 that he wanted to exercise his right to remain silent. (Id.). The officer then became “very
14 rough” with him and caused “serious damage” to his shoulder. (Id.). The officer also
15 threatened to break Plaintiff’s leg and tried to slam the door on it as it was hanging out of
16 the police car. (Id.).
17
18 Deputy Perez approached Plaintiff with a “bill of attainder” and told him that it was
19 “mandatory” that he sign it. (Id. at 10). Plaintiff claims that he signed it under duress
20 while reserving “his right to contract.” (Id.). After Plaintiff signed the “bill of attainder,”
21 Deputy Perez twisted Plaintiff’s thumb until it was almost disfigured to produce a thumb
22 print on the back of the bill. (Id.). The name “Charles Monroe,” to which Plaintiff has a
23 “right to trademark,” was in the upper portion of the bill of attainder. (Id.). Deputy Perez
24 told Plaintiff that he must pay money to the court because he signed the bill of attainder,
25 although Plaintiff claims that he is not liable for any charges because he signed under
26 duress. (Id.). Plaintiff also claims that he was damaged by the theft (or towing) of his
27 private vehicle -- though it is not clear why, or even if, Plaintiff’s car was actually towed.
28 (Id.). After exchanging some words, the officers departed. (Id.).
1 Plaintiff alleges Defendants deprived him of his “rights under color of law” for
2 towing his car without due process in violation of 18 U.S.C. § 242, which also constituted
3 an unlawful conspiracy in violation of 18 U.S.C. § 241 and 18 U.S.C. § 1962. (Id. at 4).
4 Plaintiff also claims Defendants violated his rights under Article I, Section 9 of the U.S.
5 Constitution and the Ninth and Thirteenth Amendments. (Id. at 14-15). Plaintiff seeks
6 cumulative monetary damages in the amount of $26,537,000.00. (Id. at 5).
7
8 III.
9 STANDARD
10
11 When screening a complaint to determine whether it states a claim upon which
12 relief can be granted, courts apply the pleading standard set forth in Federal Rule of Civil
13 Procedure 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The
14 standard for determining whether a plaintiff has failed to state a claim upon which relief
15 can be granted under § 1915(e)(2)(B)(ii) [the IFP statute] is the same as the Federal Rule
16 of Civil Procedure 12(b)(6) standard for failure to state a claim.”). To survive dismissal
17 under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,
18 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
19 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
20 facial plausibility when the plaintiff pleads factual content that allows the court to draw
21 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Rule
22 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure 8, which requires that
23 a complaint contain “a short and plain statement of the claim showing that the pleader is
24 entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also Li v. Kerry, 710 F.3d 995, 998 (9th
25 Cir. 2013). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks
26 a cognizable legal theory or sufficient facts to support a cognizable legal theory.”
27 Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting
28 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).
1 Although “detailed factual allegations” are not required, “[t]hreadbare recitals of
2 the elements of a cause of action, supported by mere conclusory statements, do not
3 suffice.” Iqbal, 556 U.S. at 678 (Rule 12(b)(6) pleading standard is not satisfied by “an
4 unadorned, the-defendant-unlawfully-harmed-me accusation,” bare “labels and
5 conclusions,” or “naked assertion[s] devoid of further factual enhancement”). Similarly,
6 courts will not “accept any unreasonable inferences or assume the truth of legal
7 conclusions cast in the form of factual allegations.” Ileto v. Glock Inc., 349 F.3d 1191,
8 1200 (9th Cir. 2003); see also Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017)
9 (conclusory allegations of law are insufficient to state a claim); Hebbe v. Pliler, 627 F.3d
10 338, 342 (9th Cir. 2010) (Rule 12(b)(6) does not require the court to accept as true mere
11 legal conclusions). Pro se pleadings are “held to less stringent standards” than those
12 drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Where a
13 plaintiff is appearing pro se, particularly in civil rights cases, courts construe pleadings
14 liberally and afford the plaintiff any benefit of the doubt. See Wilhelm v. Rotman, 680
15 F.3d 1113, 1121 (9th Cir. 2012). However, even in giving liberal interpretation to a
16 complaint, courts “may not supply essential elements of the claim that were not initially
17 pled.” Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting
18 Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)).
19
20 Before dismissing a pro se civil rights complaint, a plaintiff should be given
21 “notice of the deficiencies in his or her complaint” with “an opportunity to amend the
22 complaint to overcome deficiencies unless it is clear [the deficiencies] cannot be cured by
23 amendment.” Eldridge v. Block, 832 F.2d 1132, 1135-36 (9th Cir. 1987). “Under Ninth
24 Circuit case law, district courts are only required to grant leave to amend if a complaint
25 can possibly be saved. Courts are not required to grant leave to amend if a complaint
26 lacks merit entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc).
27
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1 IV.
2 DISCUSSION
3
4 Pursuant to 28 U.S.C. § 1915(e)(2), the Court must dismiss Plaintiff’s Complaint
5 due to defects in pleading. Pro se litigants in civil rights cases, however, must be given
6 leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be
7 cured by amendment. See Lopez, 203 F.3d at 1128-29. Accordingly, the Court grants
8 leave to amend.
9
10 A. The Complaint Fails To Comply With Rule 8
11
12 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “‘a short
13 and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
14 ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
15 rests.’” Twombly, 550 U.S. at 555 (quoting Fed. R. Civ. P. 8(a)). A complaint violates
16 Rule 8 if a defendant would have difficulty understanding and responding to the
17 complaint. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th
18 Cir. 2011).
19
20 The Complaint violates Rule 8 for reasons too numerous to list in detail. As a
21 preliminary matter, however, the Complaint is styled as a state law “Demand for the
22 Conversion of Property” and asserts that the Court has jurisdiction to hear the state law
23 claim under 28 U.S.C. § 1332, the federal diversity jurisdiction statute. Section 1332
24 provides in relevant part that “[t]he district courts shall have original jurisdiction of all
25 civil actions where the amount in controversy exceeds the sum or value of $75,000 . . .
26 and is between (1) citizens of different States.” However, the Complaint reveals on its
27 face that the Court lacks jurisdiction in this matter under § 1332 because all of the parties
28 are citizens of California. (Complaint at 1-2); see also Owen Equip. & Erection Co. v.
1 Kroger, 437 U.S. 365, 374 (1978) (“[D]iversity jurisdiction is not to be available when
2 any plaintiff is a citizen of the same State as any defendant.”).
3
4 Furthermore, although the Complaint is styled as a “Demand for the Conversion of
5 Property,” in the body of the Complaint, Plaintiff appears to assert that Deputies Reynolds
6 and Perez violated 18 U.S.C. § 241, which prohibits conspiracies to violate United States
7 constitutional or statutory rights, and 18 U.S.C. § 242, which prohibits the deprivation of
8 rights under color of law. (Complaint at 4). However, these statutes set forth criminal
9 violations and do not provide a civil private right of action. See Allen v. Gold Country
10 Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (affirming “dismissal of [plaintiff’s] claims
11 under 18 U.S.C. §§ 241 and 242 because these are criminal statutes that do not give rise to
12 civil liability”); Brown v. Montana, 442 F. Supp. 2d 982, 988 (D. Mont. 2006)
13 (“[Plaintiff] cannot proceed under Title 18 of the United States Code because 18 U.S.C.
14 §§ 241, 242, and 1201 define criminal offenses that do not give rise to private causes of
15 action, and private persons such as [plaintiff] have no legally cognizable interest in the
16 prosecution of others.”) (internal citations omitted).
17
18 Plaintiff also appears to attempt to claim that Deputies Reynolds and Perez violated
19 18 U.S.C. § 1962, the criminal RICO statute. (Complaint at 4). Even if the Court were to
20 construe this allegation as a civil RICO claim under § 1964, the claim necessarily fails.
21 See 18 U.S.C. § 1964(c) (expressly granting a private right of action where an individual
22 is “injured in his business or property by reason of a violation of section 1962 of this
23 chapter”). To state a civil RICO claim, a Complaint must plead the following elements:
24 (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity.
25 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). In addition, the conduct must be
26 (5) the proximate cause of harm to the plaintiff. Eclectic Properties E., LLC v. Marcus &
27 Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014). Racketeering activity generally
28 requires commission of one of the predicate acts enumerated in 18 U.S.C. § 1961(1), such
1 as acts or threats “involving murder, kidnapping, gambling, arson, robbery, bribery,
2 extortion, dealing in obscene matter, or dealing in a controlled substance,” as well as
3 counterfeiting, human trafficking, and money laundering, among other acts. See Rubicon
4 Glob. Ventures, Inc. v. Chongqing Zongshen Grp. Imp./Exp. Corp., 226 F. Supp. 3d 1141,
5 1159 (D. Or. 2016) (“Section 1961 of RICO provides an extensive list of conduct that is
6 considered racketeering activity.”). The Complaint does not allege that Deputies
7 Reynolds and Perez engaged in any “racketeering activity,” much less a pattern of
8 racketeering activity.
9
10 The Complaint fares no better to the extent that it is attempting to assert state law
11 claims such as conversion. Even if the Court were to exercise supplemental jurisdiction to
12 hear Plaintiff’s state law claims, it could not provide relief on these claims as they are
13 currently pled. Under the California Government Claims Act (“CGCA”), a plaintiff may
14 not bring an action for damages against a public employee or entity unless he first
15 presents a written claim to the local governmental entity within six months of the accrual
16 of the action. See Mabe v. San Bernardino Cnty., Dept. of Public Social Services, 237
17 F.3d 1101, 1111 (9th Cir. 2001) (CGCA requires the “timely presentation of a written
18 claim and the rejection of the claim in whole or in part” as a condition precedent to filing
19 suit); see also Cal. Gov’t Code § 945.4 (“[N]o suit for money or damages may be brought
20 against a [local] public entity . . . until a written claim therefor has been presented to the
21 public entity . . . .”). A plaintiff must affirmatively allege compliance with the CGCA’s
22 claims presentation requirement in the complaint or explain why compliance should be
23 excused. Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); see
24 also State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1245 (2004) (“[F]ailure to allege
25 compliance or circumstances excusing compliance with the claim presentation
26 requirement [of the California Government Claims Act, Cal. Gov’t Code § 900 et seq.]
27 subjects a complaint to a general demurrer for failure to state facts sufficient to constitute
28 a cause of action.”); Briggs v. Lawrence, 230 Cal. App. 3d 605, 613 (1991) (“[O]ne who
1 sues a public employee on the basis of acts or omissions in the scope of the defendant’s
2 employment [must] have filed a claim against the public-entity employer pursuant to the
3 procedure for claims against public entities. Failure to allege compliance renders the
4 complaint in such an action subject to general demurrer.”) (internal citations omitted).
5
6 Furthermore, the failure to exhaust a state law claim subject to the California
7 Government Claims Act “is a jurisdictional, not a procedural, defect. Thus, instead of
8 abating an action as premature, a trial court must grant summary judgment and dismiss the
9 suit upon a finding that a party has not exhausted his or her administrative remedies.”
10 Miller v. United Airlines, Inc., 174 Cal. App. 3d 878, 890 (1985); see also Cornejo v.
11 Lightbourne, 220 Cal. App. 4th 932, 938 (2013) (“Ordinarily, filing a claim with a public
12 entity pursuant to the Claims Act is a jurisdictional element of any cause of action for
13 damages against the public entity . . . .”). Plaintiff did not plead that he satisfied the
14 CGCA’s claims presentation requirement with respect to his claim for conversion or any
15 other state law claim and has presented no evidence showing that he exhausted his state
16 law claims before filing suit. Accordingly, the Court lacks jurisdiction to hear Plaintiff’s
17 state law claims as pled.
18
19 Even if Plaintiff had exhausted his state law claims under the CGCA, his “Demand
20 for the Conversion of Property,” by itself, fails to allege any coherent facts that
21 specifically explain what each Defendant did to violate Plaintiff’s rights, and which rights
22 they violated. The only substantive statement of facts in the Demand for the Conversion
23 of Property is:
24
25 I demand that the sheriff deputy pay for the loss of damages incurred
26 during the illegal search and seizure. The deputy had no probable cause to
27 use his emergency lights to pull me over, let alone steal my conveyance. I
28 gave Ronald Reynolds a Charge Schedule at the time of arrest to secure my
1 right to liberty and property and the attached Lien and Charge Schedule
2 confirms the $26,537,000.00 owed by the deputies and Sheriff of Los
3 Angeles.
4
5 (Complaint at 5). However, to even begin to make sense of these disjointed, unsupported
6 assertions, Defendants would be required to wade through the multiple attachments to the
7 Complaint and attempt to guess which attachments were intended to articulate Plaintiff’s
8 claims and which attachments are merely evidence supporting Plaintiff’s claims. Under
9 Rule 8, Defendants are not required to guess what Plaintiff believes they did wrong.
10
11 The Complaint violates Rule 8 for the additional reason that Plaintiff makes
12 obviously nonsensical assertions. For example, Plaintiff’s “Affidavit of Truth” and
13 “Affidavit of Commercial Lien” both reference “Bill of Attainder #AA742660,”
14 (Complaint at 8, 12), and Plaintiff expressly alleges that Deputy Perez forced him to sign
15 a bill of attainder under duress. (Id. at 10). It is unclear what Plaintiff believes a “bill of
16 attainder” is, but it is very clear that whatever document he was purportedly required to
17 sign was not a bill of attainder. “A bill of attainder is a law that legislatively determines
18 guilt and inflicts punishment upon an identifiable individual without provision of the
19 protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977);
20 see also SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 668 (9th Cir. 2002)
21 (quoting same). As the Ninth Circuit explains:
22
23 “‘[L]egislative acts, no matter what their form, that apply either to named
24 individuals or to easily ascertainable members of a group in such a way as
25 to inflict punishment on them without a judicial trial are bills of attainder
26 prohibited by the Constitution.’” United States v. Brown, 381 U.S. 437,
27 448-49 (1965) (quoting United States v. Lovett, 328 U.S. 303, 315 (1946)).
28 Three requirements must be met to establish a violation of the bill of
1 attainder clause: “[S]pecification of the affected persons, punishment, and
2 lack of a judicial trial.” Selective Serv. Sys. v. Minnesota Pub. Interest
3 Research Group, 468 U.S. 841, 847 (1984).
4
5 United States v. Munsterman, 177 F.3d 1139, 1141 (9th Cir. 1999) (parallel citations
6 omitted). The United States Constitution prohibits bills of attainder. U.S. Const. art. I,
7 § 9, cl. 3. It is utterly implausible that Deputy Perez gave Plaintiff a legislative act to sign,
8 just as it is equally implausible for a bill of attainder to have been enacted by Congress
9 specifically against Plaintiff in anticipation of the traffic stop that would somehow have
10 required his signature.
11
12 Additionally, the basis of Plaintiff’s damages claim is fantastical and does not state
13 a plain and simple, plausible claim for relief. In essence, Plaintiff alleges that he was
14 subject to a traffic stop. When asked to show identification, Plaintiff produced a patently
15 fabricated document from the so-called “Moorish National Republic Federal
16 Government/Moorish Divine and National Movement of the World” that purports to grant
17 the bearer a fully protected right of travel. (Complaint at 31-35). The document includes
18 an affidavit in which Plaintiff states that “I have determined and hereby affirm by
19 AFFIDAVIT and under oath, by virtue of my declared sovereign state Citizenship and
20 American case law, that I am NOT required to have government permission to travel,
21 NOT required to have a driver’s license, NOT required to have vehicle registration of my
22 personal property, nor to surrender the lawful title of my duly conveyed property to the
23 State as security against government indebtedness and the undeclared federal
24 bankruptcy.” (Id. at 34). There is no serious dispute that this unilateral declaration of
25 exemption from the California Vehicle Code is legally unenforceable.
26
27 The travel document further cautions that if any sheriff or municipal agent attempts
28 to stop or impede the bearer’s travel, the officer and his agency will be liable for monetary
1 “charges” unless the bearer is released and allowed to continue his travels within two
2 minutes of the initiation of the stop. (Id. at 31). The charge schedule includes line items
3 for: the officer failing to properly identify himself with three forms of identification
4 ($100,000); making the bearer turn his vehicle engine off ($7,000); requiring the bearer
5 ($7000) or any of his passengers ($7000) “to loan [a] physical form of identification to
6 [the] agent”; requiring the bearer ($15,000) or any of his passengers ($100,000) to exit the
7 vehicle; forcing the bearer to “sign any document/bill of attainder/ticket under threat,
8 duress, and coercion” ($7,000); and “denaturalizing” “Moorish Americans” by referring to
9 them as “black, african-american [sic], negro, colored, or enslavement christian name/nom
10 de guerre” ($7,000,000), among many other “charges.” (Id. at 32). Adding up the
11 purported charges accrued in the alleged traffic stop based on this schedule, Plaintiff
12 attaches “notices of liens” to the Complaint which he contends entitle him, as the
13 “judgment creditor,” to $26,537,000.00, even though there is no “judgment” for Plaintiff
14 to collect. (Id. at 6-7). Plaintiff’s made-up charge schedule and “notices of liens” are
15 patently unenforceable and will not support a federal civil action.
16
17 Accordingly, the Complaint must be dismissed for violation of Rule 8. The litany
18 of disjointed, fantastical claims and allegations with no basis in law do not provide
19 Defendants with a “short and plain statement” of plausible claims against them. While
20 dismissal is with leave to amend, Plaintiff is cautioned that the reassertion of claims with
21 no basis in law or fact will result in a recommendation that this action be dismissed with
22 prejudice without further notice.
23
24 B. The Complaint Fails To State A Constitutional Claim Under § 1983
25
26 Stripped of the implausible and unsupportable allegations described above, the
27 Complaint, generously construed, appears to be an attempt to contend that Plaintiff was
28 subjected to an unlawful arrest and the unconstitutional confiscation of his property during
1 a traffic stop, although neither of these claims is clearly pled. Accordingly, the Court
2 construes Plaintiff’s claims liberally to arise under 42 U.S. Code § 1983, the statute
3 governing civil actions for violations of civil rights. See Wilhelm, 680 F.3d at 1121.
4
5 Section 1983 provides a cause of action against “every person who, under color of
6 any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the
7 deprivation of any rights, privileges, or immunities secured by the Constitution and laws
8 . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (quoting 42 U.S.C. § 1983). “The purpose
9 of § 1983 is to deter state actors from using the badge of their authority to deprive
10 individuals of their federally guaranteed rights and to provide relief to victims if such
11 deterrence fails.” Id. To state a claim under § 1983, a plaintiff must allege that (1) a right
12 secured by the Constitution or laws of the United States was violated; and (2) the alleged
13 violation was committed by a person acting under color of state law. West v. Atkins, 487
14 U.S. 42, 48 (1988). “A person deprives another ‘of a constitutional right, within the
15 meaning of [§] 1983, if he does an affirmative act, participates in another’s affirmative
16 acts, or omits to perform an act which he is legally required to do that causes the
17 deprivation of which [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th
18 Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
19
20 1. Plaintiff Fails to State a § 1983 Claim Against Captain Wells or
21 Deputies Reynolds and Perez
22
23 “Personal-capacity suits [under § 1983] seek to impose personal liability upon a
24 government official for actions [the official] takes under color of state law.” Kentucky v.
25 Graham, 473 U.S. 159, 165 (1985). To state a claim against Captain Wells and/or
26 Deputies Reynolds and Perez in their individual capacities, Plaintiff must identify the
27 constitutional right each Defendant allegedly violated while acting under color of state
28 law and show either the defendant’s direct, personal participation in the constitutional
1 violation, or some sufficient causal connection between the defendant’s conduct and the
2 alleged violation. See Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011).
3
4 a. Captain Wells
5
6 Although Captain Wells is a named Defendant, (Complaint at 2), the Complaint
7 does not raise any specific allegations against him. The only reference to Captain Wells
8 in the Complaint or any of its attachments appears to be a letter that Captain Wells sent to
9 Plaintiff on behalf of the Office of the LASD Sheriff. (Complaint at 27). The letter states
10 that the LASD investigated a complaint Plaintiff had submitted against an employee at the
11 Metrolink Bureau and found that the employee’s action was justified. (Id.). The
12 Complaint does not explain what the subject of Plaintiff’s personnel complaint was or its
13 connection to the acts at issue here. However, assuming that the letter is the reason why
14 Plaintiff has named Captain Wells as a Defendant, any purported claim against Captain
15 Wells fails under Rule 12(b)(6) because the Complaint does not explain what right
16 Plaintiff believes Captain Wells violated by this letter and why.
17
18 Furthermore, Plaintiff is advised that the mere denial of a request for an
19 investigation submitted to a governmental agency does not, by itself, constitute a
20 constitutional violation. The First Amendment provides that Congress shall make no law
21 abridging the right of the people “to petition the Government for redress of grievances.”
22 The right to petition the government is “cut from the same cloth” as the other guarantees
23 in the First Amendment and is “an assurance of a particular freedom of expression.”
24 McDonald v. Smith, 472 U.S. 479, 482 (1985).
25
26 However, the Petition Clause guarantees only that an individual may “speak freely
27 and petition openly” and that he will be free from retaliation by the government for doing
28 so. Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 464-65
1 (1979) (per curiam). The First Amendment does not guarantee that there will be any
2 government response to a petition or that the government will take any action regarding
3 the relief demanded by the petitioner. Specifically, the First Amendment does not impose
4 an affirmative obligation on the government to consider, respond to, or grant any relief on
5 a citizen’s petition for redress of grievances. Smith, 441 U.S. at 464-65; see also Apple v.
6 Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“A citizen’s right to petition the government
7 does not guarantee a response to the petition or the right to compel government officials to
8 act on or adopt a citizen’s views.”); We the People Foundation, Inc. v. United States, 485
9 F.3d 140, 141 (D.C. Cir. 2007) (“[T]he Petition Clause does not provide a right to a
10 response or official consideration [of a citizen’s grievance].”); Trentadue v. Integrity
11 Committee, 501 F.3d 1215, 1237 (10th Cir. 2007) (“[T]he right to petition confers no
12 attendant right to a response from the government.”); Hilton v. City of Wheeling, 209 F.3d
13 1005, 1007 (7th Cir. 2000) (“[W]hile the government may not interfere with the right to
14 petition, it need not grant the petition, no matter how meritorious it is.”) (internal citations
15 omitted).
16
17 Plaintiff exercised his constitutional right to petition the government by filing a
18 citizen’s complaint. The exercise of that right did not trigger an obligation under the
19 federal Constitution for the LASD, or Captain Wells in particular, to consider or
20 investigate Plaintiff’s claims, or even to provide any response to Plaintiff, much less to
21 grant the relief requested by his complaint. Accordingly, any claim against Captain Wells
22 is dismissed, with leave to amend.
23
24 b. Deputies Reynolds and Perez
25
26 Uniquely among the named Defendants, Plaintiff purports to sue Deputies
27 Reynolds and Perez in both their official and individual capacities. (Complaint at 15). An
28 “official capacity” claim against a county official is “another way of pleading an action
1 against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social
2 Services, 436 U.S. 658, 690, n.55 (1978). “If both [a municipality and a municipal officer
3 acting in his or her official capacity] are named, it is proper upon request for the Court to
4 dismiss the official-capacity officer[.]” Luke v. Abbott, 954 F. Supp. 202, 205 (C.D. Cal.
5 1997). The Complaint sues both the LASD, the municipal agency for which Deputies
6 Reynolds and Perez work, and Reynolds and Perez in their official capacities.
7 Accordingly, the official capacity claims are redundant to the claims against the LASD
8 and are subject to dismissal.
9
10 The Complaint does not explain why the acts attributed to Deputies Reynolds and
11 Perez violated Plaintiff’s rights. The Complaint lists certain provisions of the Constitution
12 that Plaintiff summarily claims were violated, but does not allege any facts showing which
13 specific act by which specific Defendant violated which specific right, or the specific
14 harm that resulted to Plaintiff from the violation. (Complaint at 14-15). For example,
15 Plaintiff broadly asserts that his rights were violated under Article I, section 9, clauses 3-7
16 of the U.S. Constitution, but provides no facts to support any of these claims. (Complaint
17 at 14). Indeed, it is difficult to imagine how these particular Defendants could possibly be
18 liable for violations of the provisions cited. Article I addresses the legislative powers of
19 Congress. The specific clauses in Section 9 cited by Plaintiff prohibit Congress from
20 enacting bills of attainder and ex post facto laws; limit Congress’s tax authority; provide
21 that no preference shall be given to one state’s ports over another’s; and require that
22 withdrawals from the public Treasury be made by appropriations bills. Plaintiff has not
23 shown how county sheriff’s deputies, acting under color of state law, could possibly be
24 civilly liable for Congress’s passage of federal tax laws or appropriations bills, or
25 explained why they could be the proper defendants in a facial challenge to the
26 constitutionality of any such laws. Accordingly, Plaintiff’s Article I claims are dismissed.
27 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570) (“[N]aked assertion[s] devoid
28 of further factual enhancement”; and “[t]hreadbare recitals of the elements of a cause of
1 action, supported by mere conclusory statements” will not suffice to withstand dismissal
2 under 12(b)(6)).
3
4 Plaintiff also summarily asserts that his Ninth and Thirteenth Amendment rights
5 were violated. (Id. at 15). But even if Plaintiff had alleged facts showing exactly what
6 any of the named Defendants separately did to violate his constitutional rights, which he
7 did not, courts have never recognized the Ninth Amendment, which simply provides that
8 rights not specifically granted to the federal government by the Constitution are retained
9 by the people, as a valid ground for a § 1983 claim. Strandberg v. City of Helena, 791
10 F.2d 744, 748 (9th Cir. 1986). And nowhere in the Complaint does Plaintiff state facts
11 showing that he was forced into involuntary servitude (i.e., into slavery), in violation of
12 the Thirteenth Amendment. Brogan v. San Mateo City, 901 F.2d 762, 764 (9th Cir. 1990).
13 Accordingly, these claims must also be dismissed.
14
15 It is possible, though far from certain, that Plaintiff may be attempting to allege a
16 violation of his Fourth Amendment rights, though he does not specifically invoke the
17 Fourth Amendment anywhere in the Complaint. (Complaint at 8-10). The Fourth
18 Amendment protects the “[t]he right of . . . people to be secure in their persons, houses,
19 papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
20 It protects against unlawful arrests and seizures of property, and prohibits the use of
21 excessive force in the execution of an arrest.
22
23 “‘A claim for unlawful arrest is cognizable under § 1983 as a violation of the
24 Fourth Amendment, provided the arrest was without probable cause or other
25 justification.’” Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (en banc)
26 (citation omitted); Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013).
27 “‘Probable cause exists when there is a fair probability or substantial chance of criminal
28 activity.’” Lacey, 693 F.3d at 918 (citation omitted); see also Gravelet-Blondin, 728 F.3d
1 at 1097-98 (“Probable cause exists if the arresting officers had knowledge and reasonably
2 trustworthy information of facts and circumstances sufficient to lead a prudent person to
3 believe that [the arrestee] had committed or was committing a crime.” (citation and
4 internal quotation marks omitted)). Thus, to state a Fourth Amendment unlawful arrest
5 claim against Deputies Reynolds and/or Perez, Plaintiff must allege facts demonstrating
6 that he was arrested, and that the arrest was without probable cause. Lacey, 693 F.3d at
7 918. The Complaint fails to allege facts supporting an unlawful arrest claim.
8
9 “A ‘seizure’ of property . . . occurs when ‘there is some meaningful interference
10 with an individual’s possessory interests in that property.’” Soldal v. Cook County, Ill.,
11 506 U.S. 56, 61 (1992) (citation omitted). “A seizure results in a constitutional violation
12 only if it is unreasonable.” Nelson v. City of Davis, 685 F.3d 867, 878 (9th Cir. 2012).
13 Determining whether “a particular seizure is reasonable under the Fourth Amendment
14 requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s
15 Fourth Amendment interests’ against the countervailing governmental interests at stake.”
16 Graham v. Connor, 490 U.S. 386, 396 (1989) (some internal quotation marks omitted).
17 While the “reasonableness” inquiry “must be judged from the perspective of a reasonable
18 officer on the scene, rather than with the 20/20 vision of hindsight,” the inquiry is always
19 an objective one: “the question is whether the officers’ actions are ‘objectively
20 reasonable’ in light of the facts and circumstances confronting them, without regard to
21 their underlying intent or motivation.” Id. at 396-97. Although the Complaint vaguely
22 alleges that Plaintiff’s vehicle was towed, it does not allege facts showing when, by
23 whom, or on whose orders the seizure occurred; nor does the Complaint explain why the
24 seizure was unreasonable.
25
26 A claim of excessive force in the context of an arrest or investigatory stop also
27 implicates the Fourth Amendment right to be free from “unreasonable . . . seizures.” U.S.
28 Const. amend. IV; see Graham, 490 U.S. at 394. Courts analyze claims of excessive force
1 under an “objective reasonableness” standard. Bryan v. MacPherson, 630 F.3d 805, 817
2 (9th Cir. 2010) (citing Graham, 490 U.S. at 395). “Determining whether the force used to
3 effect a particular seizure is reasonable under the Fourth Amendment requires a careful
4 balancing of the nature and quality of the intrusion on the individual's Fourth Amendment
5 interests against the countervailing governmental interests at stake.” Id. at 396 (citations
6 and internal quotation marks omitted). Here, too, Plaintiff does not provide sufficient
7 facts. Although he claims that his shoulder and thumb were injured during the encounter,
8 he does not provide sufficient facts showing that the force applied was unreasonable to
9 state a cognizable claim. See, e.g., Cnty. of Los Angeles, Calif. v. Mendez, 137 S. Ct.
10 1539, 1547 (2017). Thus, to the extent that the Complaint tacitly attempts to assert Fourth
11 Amendment claims against Deputies Reynolds and Perez, whether based on an unlawful
12 arrest, the wrongful seizure of his vehicle, or the undue application of force, the claims
13 must be dismissed, with leave to amend.
14
15 If Plaintiff intends to assert his civil rights claims in an amended complaint, he
16 must clearly identify in a short plain statement the specific constitutional right violated,
17 which officer’s conduct violated which right, and facts showing how each Defendant
18 violated the elements of the constitutional right -- i.e., enough so that each Defendant will
19 have fair notice of each precise claim being asserted him so that he may properly respond.
20 See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996); see also Cafasso, 637 F.3d at
21 1058 (a complaint violates Rule 8 if a defendant would have difficulty understanding and
22 responding to the complaint). It is not sufficient to allege that “Defendants” collectively
23 violated Plaintiff’s rights. Plaintiff must explain, for each Defendant individually, exactly
24 what that particular Defendant did to violate the Constitution.
25
26
27
28
1 2. The Complaint Fails to State a Supervisory Liability Claim
2 Against Sheriff Villanueva
3
4 Plaintiff does not plead any facts indicating that Sheriff Villanueva participated in
5 or even knew about the events alleged in the Complaint. (See Complaint at 8-15).
6 Accordingly, it is impossible to discern from the Complaint why Plaintiff believes Sheriff
7 Villanueva violated his rights.
8
9 However, assuming that Plaintiff named Sheriff Villaneuva solely because he leads
10 the LASD, Plaintiff is advised that government officials are not liable under § 1983
11 simply because their subordinates engaged in unconstitutional conduct. See Iqbal, 556
12 U.S. at 676. Where a plaintiff sues a supervisor but does not allege that the supervisor
13 directly participated in the constitutional violation, the complaint must show that the
14 supervisor had a “sufficient causal connection” to the violation because he “set ‘in motion
15 a series of acts by others, or knowingly refused to terminate [such acts], which he knew or
16 reasonably should have known, would cause others to inflict the constitutional injury.’”
17 Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir. 2008) (quoting Larez v. City of Los
18 Angeles, 946 F.2d 630, 646 (9th Cir. 1991)); see also Preschooler II v. Clark County Bd.
19 Of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (a supervisor may be held accountable
20 only “for his own culpable action or inaction in the training, supervision, or control of his
21 subordinates, for his acquiescence in the constitutional deprivations of which the
22 complaint is made, or for conduct that showed a reckless or callous indifference to the
23 rights of others”).
24
25 Although Plaintiff lists Sheriff Villanueva as a Defendant in the Complaint, his
26 mere inclusion on a list does not explain how he directly participated in the alleged
27 constitutional violation or set in motion the acts by his subordinate officers, knowing that
28
1 they would cause a constitutional injury to Plaintiff. Accordingly, the claims against
2 Sheriff Villanueva are dismissed, with leave to amend.
3
4 3. The Complaint Fails to State a Monell Claim Against the LASD
5
6 Plaintiff sues the Los Angeles County Sheriff’s Department, which the Ninth
7 Circuit has held is a separately suable local governmental entity. See Streit v. County of
8 Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001). Under § 1983, local governments and
9 their agencies are responsible only “for their own illegal acts” and are not vicariously
10 liable for their employees’ conduct. Connick v. Thompson, 563 U.S. 51, 60 (2011)
11 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). To allege a § 1983 claim
12 against a local governmental entity such as a sheriff's department, a plaintiff must allege
13 not only a constitutional deprivation, but also an official policy, custom, or practice that
14 was the “moving force” that caused the constitutional deprivation. Monell, 436 U.S. at
15 694-95; Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008).
16 “Official municipal policy includes the decisions of a government’s lawmakers, the acts
17 of its policymaking officials, and practices so persistent and widespread as to practically
18 have the force of law.” Connick, 563 U.S. at 61; see also Jett v. Dallas School Dist., 491
19 U.S. 701, 738 (1989) (municipality may be liable based on its “acquiescence in a
20 longstanding practice or custom” that constitutes its “standard operating procedure”).
21
22 Here, Plaintiff does not plead any facts showing an LASD policy, custom or
23 practice that led to his alleged harm. (Complaint at 8-15). Accordingly, Plaintiff fails to
24 state a claim against the LASD and his claim must be dismissed, with leave to amend.
25
26
27
28
1 V.
2 CONCLUSION
3
4 For the reasons stated above, the Complaint is dismissed with leave to amend. If
5 Plaintiff still wishes to pursue this action, he must file a First Amended Complaint within
6 thirty (30) days from the date of this Order. In any amended complaint, Plaintiffs shall
7 cure the defects described above. If Plaintiff chooses to file a First Amended Complaint,
8 he must clearly designate on the face of the document that it is the “First Amended
9 Complaint.” The First Amended Complaint must bear the docket number assigned to this
10 case, and it must be retyped or rewritten in its entirety. Plaintiff shall not include new
11 defendants or allegations that are not reasonably related to the claims asserted in the
12 Complaint. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.
13 1990) (denial of leave to amend not abuse of discretion where proposed new claims would
14 have “greatly altered the nature of the litigation” and required defendants to undertake “an
15 entirely new course of defense”); Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th
16 Cir. 1990) (affirming denial of leave to amend where additional claims “advance different
17 legal theories and require proof of different facts”). In addition, the First Amended
18 Complaint must be complete in and of itself, without reference to the original Complaint,
19 or any other pleading, attachment, or document.
20
21 An amended complaint entirely takes the place of the preceding complaint. Ferdik
22 v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will treat
23 any preceding complaint, including any exhibits attached to the preceding complaint, as
24 nonexistent. Id. If Plaintiff wishes the Court to consider any exhibits from the original
25 Complaint, he must re-attach them to the First Amended Complaint. Because the Court
26 grants Plaintiff leave to amend all the claims raised here, any claim raised in the original
27 Complaint is waived if it is not raised again in the First Amended Complaint. Lacey, 693
28 F.3d at 928.
1 In any amended complaint, Plaintiff should confine his allegations to the essential
2 facts supporting each of his claims. Plaintiff is strongly encouraged to keep his statements
3 concise and to omit irrelevant details. Plaintiff is advised that pursuant to Federal Rule of
4 Civil Procedure 8(a), all that is required is a “short and plain statement of the claim
5 showing that the pleader is entitled to relief.” Plaintiff is strongly encouraged to use the
6 standard civil rights complaint form when filing any amended complaint, a copy of
7 which is attached. In any amended complaint, Plaintiff must describe, to the extent
8 possible, what each separate Defendant, including each separate Doe Defendant, if any,
9 did to violate his rights; where and when the wrongful conduct occurred; the harm that
10 Plaintiff suffered from the Defendant’s acts and omissions; and the constitutional right or
11 statute that each Defendant violated. It is not necessary for Plaintiff to cite case law,
12 include legal argument, or provide evidence to support his claims at this stage of the
13 litigation. Plaintiff is also advised to omit any claims for which he lacks a sufficient legal
14 or factual basis.
15
16 The Court cautions Plaintiff that it generally will not be inclined to grant further
17 opportunities to amend if the First Amended Complaint continues to assert claims for
18 which relief cannot be granted for the reasons explained in this Order. “[A] district
19 court’s discretion over amendments is especially broad ‘where the court has already given
20 a plaintiff one or more opportunities to amend his complaint.’” Ismail v. Cnty. of Orange,
21 917 F. Supp. 2d 1060, 1066 (C.D. Cal. 2012) (quoting DCD Programs, Ltd. v. Leighton,
22 833 F.2d 183, 186 n.3 (9th Cir. 1987)); see also Cafasso, 637 F.3d at 1058 (“[T]he district
23 court’s discretion to deny leave to amend is particularly broad where plaintiff has
24 previously amended the complaint.”) (internal quotation marks omitted). Thus, if Plaintiff
25 files a First Amended Complaint with claims that repeat the same pleading defects
26 addressed in this Order, the Court may recommend that the First Amended Complaint be
27 dismissed with prejudice for failure to state a claim.
28
1 Instead of filing a First Amended Complaint, Plaintiff may choose to stand on the
2 defective claims in the original Complaint, but must expressly notify the Court in writing
3 of his intention to do so by the same deadline for filing an amended complaint, i.e., thirty
4 days from the date of this Order. Plaintiff is cautioned, however, that when a plaintiff
5 chooses to stand on a defective complaint despite having been afforded the opportunity to
6 amend, the district court may dismiss any defective claims under Federal Rule of Civil
7 Procedure 12(b)(6) and allow the action to proceed only on the surviving claims, if any,
8 that sufficiently state a claim. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th
9 Cir. 2004). Plaintiff is advised that if he elects to stand on the defective claims in his
10 original Complaint, the Magistrate Judge will recommend that the Court dismiss some or
11 all of his claims for the reasons stated in this Order. See McCalden v. California Library
12 Ass’n, 955 F.2d 1214, 1224 (9th Cir. 1992) (a plaintiff granted leave to amend a pleading
13 “may elect to stand on her pleading and appeal”); Edwards, 356 F.3d at 1065 (“When the
14 plaintiff timely responds with a formal notice of his intent not to amend, the threatened
15 dismissal merely ripens into a final, appealable judgment.”). Id.
16
17 Accordingly, Plaintiff is ORDERED to file either a First Amended Complaint or a
18 Notice of Intention to Stand on Defective Complaint within thirty days of the date of this
19 Order. Plaintiff is explicitly cautioned that the failure to file either a First Amended
20 Complaint or a Notice of Intention to Stand on Defective Complaint by the Court’s
21 deadline will result in a recommendation that this action be dismissed with prejudice
22 for failure to prosecute and obey court orders pursuant to Federal Rule of Civil
23 Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 891 (9th
24 Cir. 2019) (“‘The failure of the plaintiff eventually to respond to the court’s ultimatum --
25 either by amending the complaint or by indicating to the court that it will not do so -- is
26 properly met with the sanction of a Rule 41(b) dismissal.’”) (quoting Edwards, 356 F.3d
27 at 1065) (emphasis in original).
28
1 Plaintiff is further advised that if he no longer wishes to pursue this action, he may
2 || voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of
3 || Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s
4 || convenience.
5
6 || DATED: December 11, 2020 .
huh Nt
8 Fe
PEDRO V. CASTILLO
9 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10039722. Public record. Not legal advice.