“Dismissal of a pro se complaint without leave to 4 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 5 cured by amendment.”
How later courts described this case
- “Dismissal of a pro se complaint without leave to 4 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 5 cured by amendment.”
- “the courts that have recognized that malicious prosecution may support a section 1983 14 claim are virtually unanimous in holding that constitutional protection exists only with respect to 15 criminal proceedings and not to civil proceedings”
- holding that while leave to amend shall 26 be freely given, the court does not have to allow futile amendments
- “the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”
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
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11 KIMBERLY R. OLSON, No. 2:22-cv-2018 KJM DB PS
12 Plaintiff,
13 v. ORDER
14 HORNBROOK COMMUNITY
SERVICES DISTRICT, et al.,
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16 Defendants.
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18 Plaintiff Kimberly R. Olson is proceeding in this action pro se. This matter was referred
19 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
20 before the court are plaintiff’s amended complaint and motion to proceed in forma pauperis
21 pursuant to 28 U.S.C. § 1915. (ECF Nos. 2 & 7.) Therein, plaintiff complains that the defendants
22 retaliated against plaintiff by terminating plaintiff’s position with the Hornbrook Community
23 Services District.
24 The court is required to screen complaints brought by parties proceeding in forma
25 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
26 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons
27 stated below, plaintiff’s amended complaint will be dismissed with leave to amend.
28 ////
1 I. Plaintiff’s Application to Proceed In Forma Pauperis
2 Plaintiff’s in forma pauperis application makes the financial showing required by 28
3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d
7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th
8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th
9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed
10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous
11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the
12 District Court to examine any application for leave to proceed in forma pauperis to determine
13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,
14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).
15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
17 state a claim on which relief may be granted, or seeks monetary relief against an immune
18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the
22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
26 true the material allegations in the complaint and construes the allegations in the light most
27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
5 The minimum requirements for a civil complaint in federal court are as follows:
6 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
7 jurisdiction depends . . . , (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
8 judgment for the relief the pleader seeks.
9 Fed. R. Civ. P. 8(a).
10 II. Plaintiff’s Amended Complaint
11 Plaintiff’s amended complaint alleges that plaintiff was “a member of, and the Secretary
12 of, the Board of Directors of” defendant Hornbrook Community Services District (“HCSD”).
13 (Am. Compl. (ECF No. 7) at 2.) “HCSD is a governmental agency lying completely within the
14 County of Siskiyou” and “produces potable water to the public[.]” (Id.) Defendants Michele
15 Hanson, Patricia Brown, Sharrel Barnes, and Roger Gifford “were members of the Board of
16 Directors of HCSD.” (Id.)
17 The events at issue in the amended complaint “occurred beginning on or about April 1,
18 2014” and “continued through June 25, 2014 with the unlawful revocation/termination of”
19 plaintiff and “a sham civil action against Plaintiff by the Defendants on June 30, 2014.” (Id. at 3.)
20 In this regard, the amended complaint alleges that during this period plaintiff “made several
21 reports to government agencies about . . . wrongful conduct by the Defendants.” (Id.) Plaintiff
22 “also provided assistance with others in making complaints against” the defendants. (Id.) In
23 response defendants “acted to intimidate and retaliate against plaintiff by . . . stripping her of her
24 office, and her rights to vote . . . and by filing . . . a baseless civil action against her[.]” (Id.)
25 The amended complaint alleges that the court has federal question jurisdiction over this
26 action and asserts claims pursuant to the First Amendment and Fourteenth Amendment. (Id. at 1,
27 23-27.) 42 § 1983 provides that,
28 ////
1 [e]very person who, under color of [state law] ... subjects, or causes
to be subjected, any citizen of the United States ... to the deprivation
2 of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit
3 in equity, or other proper proceeding for redress.
4 § 1983 does not contain a specific statute of limitations. “Without a federal limitations period,
5 the federal courts ‘apply the forum state’s statute of limitations for personal injury actions, along
6 with the forum state's law regarding tolling, including equitable tolling, except to the extent any
7 of these laws is inconsistent with federal law.’” Butler v. National Community Renaissance of
8 California, 766 F.3d 1191, 1198 (9th Cir. 2014) (quoting Canatella v. Van De Kamp, 486 F.3d
9 1128, 1132 (9th Cir. 2007)); see also Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). In
10 California the limitations period is two years. See Cal. Code Civ. P. § 335.1.
11 Here, the amended complaint alleges that the events at issue occurred “through June 25,
12 2014[.]” (Am. Compl. (ECF No. 7) at 3.) This action was filed on November 8, 2022, well after
13 the two-year limitations period. Equitable tolling of a statute of limitations may suspend or
14 extend the limitations period. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 99
15 (Cal. 2008). “The equitable tolling of statutes of limitations is a judicially created, nonstatutory
16 doctrine. It is designed to prevent unjust and technical forfeitures of the right to a trial on the
17 merits when the purpose of the statute of limitations – timely notice to the defendant of the
18 plaintiff’s claims – has been satisfied.” Id. (citations and internal quotation marks omitted). The
19 federal court looks to California law for the statute of limitations in a § 1983 case. Pouncil v.
20 Tilton, 704 F.3d 568, 573 (9th Cir. 2012). California law also applies to questions of equitable
21 tolling. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Azer v. Connell, 306 F.3d 930, 935-
22 36 (9th Cir. 2002).
23 “Under California law, a plaintiff must meet three conditions to equitably toll a statute of
24 limitations: ‘(1) defendant must have had timely notice of the claim; (2) defendant must not be
25 prejudiced by being required to defend the otherwise barred claim; and (3) plaintiff’s conduct
26 must have been reasonable and in good faith.’” Fink v. Shedler, 192 F.3d 911, 916 (9th Cir.
27 1999) (quoting Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir. 1988)); see also
28 Addison v. State of California, 21 Cal. 3d 313, 319 (1978). “California courts apply equitable
1 tolling ‘to prevent the unjust technical forfeiture of causes of action, where the defendant would
2 suffer no prejudice.’” Jones, 393 F.3d at 928 (quoting Lantzy v. Centex Homes, 31 Cal. 4th 363,
3 370 (2003)). “Application of California’s equitable tolling doctrine ‘requires a balancing of the
4 injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important
5 public interest or policy expressed by the . . . limitations statute.’” Id. (quoting Lantzy, 31 Cal.
6 4th at 371).
7 The amended complaint, however, contains no allegations to support tolling of the statute
8 of limitations. The amended complaint does also allege that the defendants engaged in a “false
9 prosecution of a civil action” against plaintiff in 2014, which defendants “unconditionally
10 dismissed” on November 11, 2020. (Id. at 26-27.) However, “the tort of malicious prosecution,
11 without more, does not constitute a civil rights violation.” Paskaly v. Seale, 506 F.2d 1209, 1212
12 (9th Cir. 1974); see also McMaster v. Cabinet for Human Resources, 824 F.2d 518, 522 (6th Cir.
13 1987) (“the courts that have recognized that malicious prosecution may support a section 1983
14 claim are virtually unanimous in holding that constitutional protection exists only with respect to
15 criminal proceedings and not to civil proceedings”); Hipschman v. Cnty. of San Diego, Case No.
16 22-cv-0903 AJB BLM, 2023 WL 5734907, at *9 (S.D. Cal. Sept. 5, 2023) (“Plaintiffs
17 acknowledge this is a civil proceeding and that controlling precedent holds that malicious
18 prosecution is a concept applicable only in criminal proceedings.”).
19 II. Further Leave to Amend
20 For the reasons stated above, plaintiff’s amended complaint must be dismissed. The
21 undersigned has carefully considered whether plaintiff may further amend the complaint to state a
22 claim upon which relief can be granted. “Valid reasons for denying leave to amend include
23 undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan
24 Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath
25 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall
26 be freely given, the court does not have to allow futile amendments).
27 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
28 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
1 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
2 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
3 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
4 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
5 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
6 1988)).
7 Here, the undersigned cannot yet say that it appears beyond doubt that further leave to
8 amend would be futile. Plaintiff’s amended complaint will therefore be dismissed, and plaintiff
9 will be granted leave to file a second amended complaint. Plaintiff is cautioned, however, that if
10 plaintiff elects to file a second amended complaint “the tenet that a court must accept as true all of
11 the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals
12 of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
13 Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they
14 must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the
15 claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S.
16 at 557).
17 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
18 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
19 in itself without reference to prior pleadings. The second amended complaint will supersede the
20 amended complaint just as the amended complaint superseded the original complaint. See Loux
21 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended complaint, just as if it were
22 the initial complaint filed in the case, each defendant must be listed in the caption and identified
23 in the body of the complaint, and each claim and the involvement of each defendant must be
24 sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include
25 concise but complete factual allegations describing the conduct and events which underlie
26 plaintiff’s claims.
27 ////
28 ////
1 CONCLUSION
2 Accordingly, IT IS HEREBY ORDERED that:
3 1. The amended complaint filed July 14, 2023 (ECF No. 7) is dismissed with leave to
4 | amend.
5 2. Within twenty-eight days from the date of this order, an amended complaint shall be
6 | filed that cures the defects noted in this order and complies with the Federal Rules of Civil
7 || Procedure and the Local Rules of Practice.! The amended complaint must bear the case number
8 | assigned to this action and must be titled “Second Amended Complaint.”
9 3. Failure to comply with this order in a timely manner may result in a recommendation
10 | that this action be dismissed.
11 4. Plaintiff's November 8, 2022 motion to proceed in forma pauperis (ECF No. 2) is
12 | granted.
13 || Dated: November 3, 2023
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16 ORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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' Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
28 | voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.
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