“Dismissal of a pro se complaint without leave to 14 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 15 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 14 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 15 cured by amendment.”
- “To impose 9 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 10 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that 11 amount to deliberate indifference; and (3
- “To impose 9 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 10 violated the plaintiff’s constitutional rights; (2
- “Courts in this circuit now generally dismiss claims that fail to identify the 26 specific content of the municipal entity’s alleged policy or custom.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 MICHAEL S. COSTA, No. 2:22-cv-1003 TLN DB PS
12 Plaintiff,
13 v. ORDER
14 DAVID L HAET, et al.,
15 Defendants.
16
17 Plaintiff Michael S. Costa is proceeding in this action pro se. This matter was referred to
18 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
19 before the Court are plaintiff’s complaint and motion to proceed in forma pauperis pursuant to 28
20 U.S.C. § 1915. (ECF Nos. 1 & 2.) Therein, plaintiff complains about “problems with the courts.”
21 (Compl. (ECF No. 1) at 9.)
22 The Court is required to screen complaints brought by parties proceeding in forma
23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
24 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated
25 below, plaintiff’s complaint will be dismissed with leave to amend.
26 I. Plaintiff’s Application to Proceed In Forma Pauperis
27 Plaintiff’s in forma pauperis application makes the financial showing required by 28
28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
1 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
2 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
3 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d
4 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th
5 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th
6 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed
7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous
8 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the
9 District Court to examine any application for leave to proceed in forma pauperis to determine
10 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,
11 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).
12 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
13 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
14 state a claim on which relief may be granted, or seeks monetary relief against an immune
15 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
16 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
17 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
18 complaint as frivolous where it is based on an indisputably meritless legal theory or where the
19 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
20 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
21 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
22 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
23 true the material allegations in the complaint and construes the allegations in the light most
24 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
25 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
26 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
27 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
28 ////
1 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
2 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
3 The minimum requirements for a civil complaint in federal court are as follows:
4 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
5 jurisdiction depends . . . , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
6 judgment for the relief the pleader seeks.
7 Fed. R. Civ. P. 8(a).
8 II. Plaintiff’s Complaint
9 Plaintiff’s complaint fails to contain a short and plain statement of a claim showing that
10 plaintiff is entitled to relief. In this regard, although the complaint names five individual
11 defendants, no factual allegations or claims are alleged concerning any of these defendants.
12 Instead, the complaint concerns plaintiff’s alleged “problems with the courts,” involving child
13 support and custody cases dating “back to 2005.” (Compl. (ECF No. 1) at 9.)
14 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
15 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
16 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
17 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
18 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
19 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
20 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
21 557). A plaintiff must allege with at least some degree of particularity overt acts which the
22 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
23 Moreover, plaintiff is advised that under the Rooker-Feldman doctrine a federal district
24 court is precluded from hearing “cases brought by state-court losers complaining of injuries
25 caused by state-court judgments rendered before the district court proceedings commenced and
26 inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi
27 Basic Indus. Corp., 544 U.S. 280, 284 (2005). The Rooker-Feldman doctrine applies not only to
28 final state court orders and judgments, but to interlocutory orders and non-final judgments issued
1 by a state court as well. Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir.
2 2001); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n. 3 (9th Cir. 1986).
3 The Rooker-Feldman doctrine prohibits “a direct appeal from the final judgment of a state
4 court,” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003), and “may also apply where the parties
5 do not directly contest the merits of a state court decision, as the doctrine prohibits a federal
6 district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a
7 state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)
8 (internal quotation marks omitted). “A suit brought in federal district court is a ‘de facto appeal’
9 forbidden by Rooker-Feldman when ‘a federal plaintiff asserts as a legal wrong an allegedly
10 erroneous decision by a state court, and seeks relief from a state court judgment based on that
11 decision.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Noel, 341 F.3d
12 at 1164); see also Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker-Feldman
13 doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in
14 ‘which a party losing in state court’ seeks ‘what in substance would be appellate review of the
15 state judgment in a United States district court, based on the losing party’s claim that the state
16 judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De Grandy, 512 U.S.
17 997, 1005-06 (1994), cert. denied 547 U.S. 1111 (2006)). “Thus, even if a plaintiff seeks relief
18 from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also
19 alleges a legal error by the state court.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013).
20 [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
21 must refuse to hear the forbidden appeal. As part of that refusal, it
must also refuse to decide any issue raised in the suit that is
22 ‘inextricably intertwined’ with an issue resolved by the state court in
its judicial decision.
23
24 Doe, 415 F.3d at 1043 (quoting Noel, 341 F.3d at 1158); see also Exxon, 544 U.S. at 286 n. 1 (“a
25 district court [cannot] entertain constitutional claims attacking a state-court judgment, even if the
26 state court had not passed directly on those claims, when the constitutional attack [is]
27 ‘inextricably intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 n.
28 16)); Bianchi v. Rylaarsdam, 334 F.3d 895, 898, 900 n. 4 (9th Cir. 2003) (“claims raised in the
1 federal court action are ‘inextricably intertwined’ with the state court’s decision such that the
2 adjudication of the federal claims would undercut the state ruling or require the district court to
3 interpret the application of state laws or procedural rules”) (citing Feldman, 460 U.S. at 483 n. 16,
4 485).
5 Disputes over child custody matters fall squarely within the Rooker-Feldman bar. See,
6 e.g., Moor v. Cnty. of Butte, 547 Fed. Appx. 826, 829 (9th Cir. 2013) (affirming dismissal of suit
7 concerning state court divorce and child custody proceedings on Rooker-Feldman grounds);
8 Gomez v. San Diego Family Ct., 388 Fed. Appx. 685 (9th Cir. 2010) (affirming dismissal of state
9 court custody decision on Rooker-Feldman grounds); Sareen v. Sareen, 356 Fed. Appx. 977 (9th
10 Cir. 2009) (affirming dismissal of action alleging constitutional violation in state court child
11 custody action on Rooker-Feldman grounds).
12 It also appears from the complaint that plaintiff may be attempting to allege a claim
13 against the City of Fairfield Police Department. (Compl. (ECF No. 1) at 7.) Plaintiff is advised
14 that “[i]n Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held
15 that a municipality may not be held liable for a § 1983 violation under a theory of respondeat
16 superior for the actions of its subordinates.” Castro v. County of Los Angeles, 833 F.3d 1060,
17 1073 (9th Cir. 2016). In this regard, “[a] government entity may not be held liable under 42
18 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving
19 force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892,
20 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694).
21 In order to allege a viable Monell claim plaintiff “must demonstrate that an ‘official
22 policy, custom, or pattern’ on the part of [the defendant] was ‘the actionable cause of the claimed
23 injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (quoting Harper v. City
24 of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three ways a “policy” can be
25 established. See Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 2010).
26 “First, a local government may be held liable ‘when implementation of its official
27 policies or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell,
28 436 U.S. at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government
1 is liable for a policy of inaction or omission, for example when a public entity, “fail[s] to
2 implement procedural safeguards to prevent constitutional violations” or fails to adequately train
3 its employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir.
4 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that
5 “the need for more or different training [was] so obvious, and the inadequacy so likely to result in
6 the violation of constitutional rights, that the policymakers . . . can reasonably be said to have
7 been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390
8 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose
9 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee
10 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that
11 amount to deliberate indifference; and (3) that these customs or policies were the moving force
12 behind the employee’s violation of constitutional rights.”). “Third, a local government may be
13 held liable under § 1983 when ‘the individual who committed the constitutional tort was an
14 official with final policy-making authority’ or such an official ‘ratified a subordinate’s
15 unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting
16 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)).
17 However, a complaint alleging a Monell violation “‘may not simply recite the elements of
18 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and
19 to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of
20 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
21 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ]
22 how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm,
23 and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of
24 Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936,
25 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the
26 specific content of the municipal entity’s alleged policy or custom.”).
27 ////
28 ////
1 II. Leave to Amend
2 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned
3 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
4 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
5 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
6 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
7 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
8 court does not have to allow futile amendments).
9 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
10 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
11 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
12 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
13 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
14 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
15 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
16 1988)).
17 Here, the undersigned cannot yet say that it appears beyond doubt that leave to amend
18 would be futile. Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted
19 leave to file an amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file
20 an amended complaint “the tenet that a court must accept as true all of the allegations contained
21 in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause
22 of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678.
23 “While legal conclusions can provide the complaint’s framework, they must be supported by
24 factual allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line
25 from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
26 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
27 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
28 in itself without reference to prior pleadings. The amended complaint will supersede the original
1 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
2 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
3 and identified in the body of the complaint, and each claim and the involvement of each
4 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
5 must also include concise but complete factual allegations describing the conduct and events
6 which underlie plaintiff’s claims.
7 CONCLUSION
8 Accordingly, IT IS HEREBY ORDERED that:
9 1. The complaint filed June 9, 2022 (ECF No. 1) is dismissed with leave to
10 amend.
11 2. Within twenty-eight days from the date of this order, an amended complaint shall be
12 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
13 Procedure and the Local Rules of Practice.1 The amended complaint must bear the case number
14 assigned to this action and must be titled “Amended Complaint.”
15 3. Failure to comply with this order in a timely manner may result in a recommendation
16 that this action be dismissed.2
17 DATED: October 21, 2022 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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1 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
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voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.
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2 Plaintiff need not file another application to proceed in forma pauperis at this time unless
28 plaintiff’s financial condition has improved since the last such application was submitted.