Opinion

Shultz v. Kern County

Court: District Court, E.D. California
Filed: Jun 15, 2022
Cited by: 0 cases
Authority: More cited than 18.1%

“the only 20 judicial remedy lies in petitioning the superior court for relief in administrative mandamus...”

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“the only 20 judicial remedy lies in petitioning the superior court for relief in administrative mandamus...”

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The opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 SUSAN MARIE SHULTZ, No. 1:22-cv-00646-JLT-BAM

12 Plaintiff, SCREENING ORDER GRANTING

PLAINTIFF LEAVE TO FILE SECOND

13 v. AMENDED COMPLAINT

14 KERN COUNTY, et al., (Doc. 6)

15 Defendants. THIRTY (30) DAY DEADLINE

Plaintiff Susan Marie Shultz (“Plaintiff”) is proceeding pro se and in forma pauperis in

this action. Plaintiff filed an amended complaint before the Court could screen the original

complaint. Plaintiff’s first amended complaint is currently before the Court for screening. (Doc.

6.)

I. Screening Requirement and Standard

The Court is required to screen complaints brought by persons seeking relief against a

governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b);

1915(e)(2)(B)(ii).

A complaint must contain “a short and plain statement of the claim showing that the

1 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

2 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

4 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

5 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

6 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

7 To survive screening, Plaintiff’s claims must be facially plausible, which requires

8 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

9 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret

10 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully

11 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

12 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

13 II. Plaintiff’s Allegations

Plaintiff alleges violations of due process, equal protection, and Cal.Gov. Code 7260.5.

Plaintiff names as defendants: (1) Kern County, (2) Kern County Sheriff Department, (3) Kern

County Public Works, and (4) Kern County Environmental Health.

Plaintiff alleges as follows. Plaintiff “was accused of trespassing in an unsafe home and

vacated without notice on April 14, 2020 by the Kern County Sheriff Department. No report was

made. I requested several times to make a report and to write down my name. The sheriff said

they only do that if a) I was dead or b) for trespassing.” Plaintiff was told by the county that there

are “refunds” to relocate Plaintiff. Plaintiff was also told that Plaintiff was denied relocation and

homeless counseling. The county did not hold anyone liable. Plaintiff was displaced and

“displacement means ridicule and humiliation, homelessness and criminalization.” Plaintiff was

“vacated, leaving [plaintiff] outside during COVID” and alone with men who harmed Plaintiff.

Plaintiff alleges she was hired to caretake the property. Plaintiff seeks relocation, access to water,

privacy. She alleges she “lost everything.”

III. Discussion

Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to

1 state a cognizable claim under 42 U.S.C. § 1983. Because she is proceeding pro se, Plaintiff will

2 be granted leave to amend her complaint to the extent that she can do so in good faith. To assist

3 Plaintiff, the Court provides the pleading and legal standards that appear relevant to her claims.

4 A. Federal Rule of Civil Procedure 8

5 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain

6 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed

7 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

8 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation

9 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to

10 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570,

11 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.;

12 see also Twombly, 550 U.S. at 556–557.

13 Although Plaintiff's complaint is short, it is not a plain statement of her claims. As a basic

matter, the complaint does not clearly state what happened, when it happened or who was

involved. Plaintiff’s allegations must be based on facts as to what happened and not conclusions.

If Plaintiff files an amended complaint, it should be a short and plain statement of her claims, and

must include factual allegations identifying what happened, when it happened and who was

involved. Fed. R. Civ. P. 8.

B. Federal Rule of Civil Procedure 10

Plaintiff is informed that Rule 10(a) of the Federal Rules of Civil Procedure requires that

each defendant be named in the caption of the complaint. A complaint is subject to dismissal if

“one cannot determine from the complaint who is being sued, [and] for what relief....” McHenry

v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Only Kern County is named in the caption. Various

other entities are not named in the caption, and the Court will not assume that Plaintiff intends to

proceed against those not so named. If Plaintiff wishes to pursue such allegations, she may amend

her complaint and include all named defendants in the caption as well as stating factually

plausible claims in the body of the amended complaint.

///

1 C. Linkage Requirement

2 The Civil Rights Act under which this action was filed provides:

3 Every person who, under color of [state law]...subjects, or causes to be

subjected, any citizen of the United States...to the deprivation of any rights,

4 privileges, or immunities secured by the Constitution...shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.

6 42 U.S.C. § 1983.

7 The statute plainly requires that there be an actual connection or link between the actions

8 of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v.

9 Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The Ninth

10 Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional right,

11 within the meaning of section 1983, if he does an affirmative act, participates in another’s

12 affirmative acts or omits to perform an act which he is legally required to do that causes the

deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

Plaintiff’s complaint fails to link Defendant Kern County, and the other entities referred to

in the body of the first amended complaint, to potential constitutional violations. Plaintiff must

name individual defendants and allege what each defendant did or did not do that resulted in a

violation of his constitutional rights. In any amended complaint, Plaintiff should allege what each

individual defendant did or did not do that caused the asserted deprivation.

D. Police and Sheriff Departments as Defendants

“To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements: (1) that a

right secured by the Constitution or laws of the United States was violated; and (2) that the

alleged violation was committed by a person acting under color of state law.” Campbell v.

Washington Dep't of Soc. Servs., 671 F.3d 837, 842 n. 5 (9th Cir. 2011) (citing Ketchum v.

Alameda Cty., 811 F.2d 1243, 1245 (9th Cir.1987)).

In this instance, Plaintiff refers to the Kern County Sheriff Department in the body of the

first amended complaint as a potential defendant. The Court recognizes that there is a split within

district courts in the Ninth Circuit on whether a police department is “person” under § 1983 and a

proper defendant for § 1983 claims. See Siratsamy v. Sacramento Cty. Sheriff Dep’t, No. 2:21-

1 cv-0678-JAM-KJN PS, 2021 WL 2210711, at *4 (E.D. Cal. June 1, 2021) (noting split of

2 authority on whether a California sheriff's department or police department is a “person” under §

3 1983 and a proper defendant for § 1983 claims); Cantu v. Kings Cty., No. 1:20-cv-00538-NONE-

4 SAB, 2021 WL 411111, at *1 (E.D. Cal. Feb. 5, 2021) (discussing split within district courts in

5 the Ninth Circuit on issue). Certain courts have found that a police department may be sued as a

6 “person” under § 1983. See, e.g., Estate of Pimentel v. City of Ceres, No:1:18-cv-01203-DAD-

7 EPG, 2019 WL 2598697, at *2-*3 (E.D. Cal. Jun. 25, 2019) (rejecting argument that Ceres Police

8 Department is not a “person” within meaning of § 1983; denying defendants’ motion for

9 judgment with respect to plaintiff’s claims against Ceres Police Department).

10 Plaintiff also appears to assert claims against various departments within Kern County:

11 Kern County Sheriff’s Department, Kern County Public Works and Kern County Environmental

12 Health.

13 Under section 1983, however, a local government unit may not be held responsible for the

acts of its employees under a respondeat superior theory of liability. See Monell v. Dep't of Social

Servs., 436 U.S. 658, 690-91 (1978). Generally, a claim against a local government unit for

municipal or county liability requires an allegation that “a deliberate policy, custom, or practice ...

was the ‘moving force’ behind the constitutional violation ... suffered.” Galen v. Cty. of Los

Angeles, 477 F.3d 652, 667 (9th Cir. 2007). Plaintiff does not allege facts to support a claim that

any alleged constitutional violation was the result of a deliberate policy, custom or practice

instituted by any public entity.

E. Equal Protection

The Equal Protection Clause requires that persons who are similarly situated be treated

alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985); Shakur v.

Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by

showing that defendants intentionally discriminated against a plaintiff based on his membership

in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690,

702– 03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), or that similarly

situated individuals were intentionally treated differently without a rational relationship to a

1 legitimate state purpose, Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601–02 (2008); Village

2 of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,

3 592 (9th Cir. 2008).

4 Plaintiff’s complaint fails to state an equal protection claim. Plaintiff does not allege that

5 she was treated differently on the basis of her membership in a protected class. Plaintiff has not

6 shown that she was intentionally treated differently than other similarly situated persons without a

7 rational relationship to a legitimate state purpose. Plaintiff’s conclusory statements about denial

8 of equal protection do not suffice. Therefore, she has not stated any claim for a violation of her

9 Equal Protection rights under the Fourteenth Amendment.

10 F. Due Process

11 Plaintiff appears to allege some kind of Due Process violation. To state a substantive Due

12 Process claim, plaintiff must allege “a state actor deprived [her] of a constitutionally protected

13 life, liberty, or property interest.” Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008). In this

regard, substantive Due Process, “forbids the government from depriving a person of life, liberty,

or property in such a way that ‘shocks the conscience’ or ‘interferes with rights implicit in the

concept of ordered liberty.’ ” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)

(quoting Rochin v. California, 342 U.S. 165, 172 (1952)).

To state a procedural Due Process claim, plaintiff must allege: (1) a deprivation of a

constitutionally protected liberty or property interest, and (2) a denial of adequate procedural

protections. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003). Here, the first amended

complaint does not identify which type of due process claim Plaintiff is asserting. The first

amended complaint does not allege any facts involving the actions of the Defendants that state the

elements of that claim plainly and succinctly.

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

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

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

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

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

1 complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancements.’” Iqbal,

2 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least

3 some degree of particularity overt acts which the defendants engaged in that support the plaintiff's

4 claims. Jones, 733 F.2d at 649. In any amended complaint, Plaintiff must allege factual support

5 for any denial of due process.

6 G. Failure to Investigate

7 To the extent Plaintiff alleges that a report was not made of the incident involving

8 Plaintiff, that is not a basis for a plausible due process claim. Baker v. Beam, 2019 WL 1455321,

9 at *6 (E.D. Cal. 2019). To the degree Plaintiff is trying to hold individuals or others liable for an

10 independent, unspecified constitutional violation based upon an allegedly inadequate

11 investigation, there is no such claim. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985)

12 (per curiam) (“[W]e can find no instance where the courts have recognized inadequate

13 investigation as sufficient to state a civil rights claim unless there was another recognized

constitutional right involved.”); Page v. Stanley, 2013 WL 2456798, at *8–9 (C.D. Cal. June 5,

2013) (dismissing Section 1983 claim alleging that officers failed to conduct thorough

investigation of plaintiff's complaints because plaintiff “had no constitutional right to any

investigation of his citizen's complaint, much less a ‘thorough’ investigation or a particular

outcome”).

H. State Law Claims

Although unclear, it appears Plaintiff is attempting to pursue state law claims in this action.

Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction,

the “district courts shall have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution,” except as provided in subsections

(b) and (c). The Supreme Court has stated that “if the federal claims are dismissed before trial, ...

the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966). Although the Court may exercise supplemental jurisdiction over state law claims,

Plaintiff must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. As

1 Plaintiff has not stated a cognizable claim for relief under federal law, the Court declines to screen

2 Plaintiff’s state law claims.

3 In addition, the California Government Claims Act requires that a tort claim against a

4 public entity or its employees be presented to the California Victim Compensation and

5 Government Claims Board no more than six months after the cause of action accrues. Cal. Gov't

6 Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a written claim, and action on or

7 rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings County

8 (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Shirk v. Vista Unified School District, 42 Cal.4th

9 201, 209 (2007). To state a tort claim against a public employee, a plaintiff must allege

10 compliance with the California Tort Claims Act. Cal. Gov't Code § 950.6; Bodde, 32 Cal.4th at

11 1244. “[F]ailure to allege facts demonstrating or excusing compliance with the requirement

12 subjects a compliant to general demurrer for failure to state a cause of action.” Bodde, 32 Cal.4th

13 at 1239. Plaintiff must allege compliance with the Government Claims Act.

To the extent Plaintiff attempts to assert a claim under Cal.Gov. Code 7260.5, Plaintiff is

informed that Cal.Gov. Code 7260.5 provides in relevant part, “b) This chapter establishes a

uniform policy for the fair and equitable treatment of persons displaced as a direct result of

programs or projects undertaken by a public entity.” Cal.Gov. Code 7260.5(b). The California

Relocation Assistance Act represents a “legislative recognition of the need to compensate for

certain business losses which occur as a result of a condemnation action.” Los Angeles Unified

Sch. Dist. v. Casasola, 187 Cal. App. 4th 189, 204, 114 Cal. Rptr. 3d 318, 328 (2010) (“the only

judicial remedy lies in petitioning the superior court for relief in administrative mandamus...”).

Plaintiff has not demonstrated that the cited Government Code section authorizes a private cause

of action cognizable in federal court.

IV. Conclusion and Order

For the reasons stated, Plaintiff’s first amended complaint fails to comply with Federal

Rule of Civil Procedure 8 and fails to state a cognizable claim for relief. As Plaintiff is

proceeding pro se, the Court will grant Plaintiff an opportunity to amend her complaint to cure

the above-identified deficiencies to the extent she is able to do so in good faith. Lopez v. Smith,

1 203 F.3d 1122, 1130 (9th Cir. 2000).

2 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

3 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

4 U.S. at 678–79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

5 a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

6 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

7 claims in her second amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

8 “buckshot” complaints).

9 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

10 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended

11 complaint must be “complete in itself without reference to the prior or superseded pleading.”

12 Local Rule 220.

13 Based on the foregoing, it is HEREBY ORDERED that:

1. The Clerk’s Office shall send Plaintiff a complaint form;

2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a second

amended complaint curing the deficiencies identified by the Court in this order (or file a

notice of voluntary dismissal); and

3. If Plaintiff fails to comply with this order, the Court will recommend dismissal of

this action, with prejudice, for failure to obey a court order and for failure to state a

claim.

IT IS SO ORDERED.

23 Dated: June 15, 2022 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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