“Unless it is absolutely 23 clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of 24 the complaint's deficiencies and an opportunity to amend prior to dismissal of the 25 action.”
How later courts described this case
- “Unless it is absolutely 23 clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of 24 the complaint's deficiencies and an opportunity to amend prior to dismissal of the 25 action.”
- “Where a particular Amendment ‘provides an explicit textual source of 25 constitutional protection’ against a particular sort of government behavior, ‘that 26 Amendment, not the more generalized notion of substantive due process, must be the 27 guide for analyzing these claims.’”
- “[T]he Fifth Amendment’s 9 due process clause only applies to the federal government.”
- denial of leave to amend appropriate where further amendment 2 || would be futile
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 BARBARA EVA BROWN, NO. ED CV 24-1303-FWS(E)
12 Plaintiff,
ORDER DISMISSING
13 v. SECOND AMENDED COMPLAINT
14 WITH LEAVE TO AMEND
OFFICER LINDSAY, ET AL.,
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Defendants.
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18 For the reasons discussed below, the Second Amended Complaint is dismissed
19 with leave to amend. See 28 U.S.C. section 1915(e)(2)(B).
20
21 BACKGROUND
22
23 On June 13, 2024, Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C.
24 section 1983. Plaintiff’s claims appeared to arise from Plaintiff’s departure from her
25 former residence. On June 26, 2024, the Court granted Plaintiff in forma pauperis
26 status. On July 25, 2024, the Court issued an “Order Dismissing Complaint With Leave
27 to Amend.”
28 ///
1 On August 26, 2024, Plaintiff filed a First Amended Complaint. Therein, Plaintiff
2 named “Sheriff Deputy Lindsay,” “Matthew Aaron Wickstrom” and “County of San
3 Bernardino” (the “County”) as Defendants. Plaintiff appeared to assert claims for:
4 (1) unlawful search and seizure, in alleged violation of the Fourth Amendment; (2) denial
5 of due process and equal protection, in alleged violation of the Fourteenth Amendment;
6 and (3) violations of state tort law. On October 11, 2024, the Court issued an “Order
7 Dismissing First Amended Complaint With Leave to Amend” (“October 11, 2024 Order”),
8 in which the Court ordered:
9
10 The First Amended Complaint is dismissed without leave to amend
11 as to:
12 (1) all section 1983 claims against Wickstrom, the County and Lindsay in
13 his official capacity (including all Fourteenth Amendment Due Process
14 claims and Equal Protection claims); and (2) all state tort claims against
15 the County and Lindsay. . . . In all other respects, the First Amended
16 Complaint is dismissed with leave to amend.
17
18 (October 11, 2024 Order, p. 11).
19
20 On November 13, 2024, Plaintiff filed a Second Amended Complaint (“SAC”),
21 naming Lindsay and the County as Defendants. 1
22 ///
23 ///
24 ///
25 ///
26
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1 Plaintiff does not name Matthew Wickstrom as a Defendant in the SAC. Thus,
28 Matthew Wickstrom is no longer a party to this action.
1 SUMMARY OF PLAINTIFF’S ALLEGATIONS
2
3 In the SAC, Plaintiff alleges: 2
4
5 On or about June 15, 20243 at approximately 9am PST my then
6 landlord, Matthew Wickstrom arrived at my then residence located at 397
7 Wabash Lane in Sugarloaf, CA. Wickstrom was informed that I can not
8 and was unable to vacate my rental unit in which I had resided in since
9 2009, until the house was sold to Wickstrom a few months earlier.
10
11 Immediately after Wickstrom heard I wasn’t ready to leave the
12 rental unit that he had just bought due to the fact that I had sustained an
13 injury to my spine, he proceeded to call the Big Bear Lake Sheriff’s Dept.
14 As I was half-nude attempting to dress myself, gather my belongings and
15 place my 3 cats in travel carriers trying to vacate because Wickstrom
16 refused money for just 1 more day.
17
18 Sheriff Deputy Lindsay arrived shortly after the call, and proceeded
19 to kick in my bedroom door after Wickstrom spoke to him. I quickly
20 dressed and tried to grab 3 of my cats to leave the premises as ordered by
21 Officer Lindsay. Neither the officer or landlord had a court order, nor my
22 consent to throw me out of my rental unit, but they did, forcing me to leave
23 behind my 2 beautiful twin Black cats I had for 13 years in California and
24 most of my personal property including my electric wheelchair.
25
2 The Court quotes verbatim from the SAC, without noting any apparent omissions
26 and without attempting to correct any errors in capitalization, punctuation, spelling or
grammar.
27
3 Although Plaintiff uses the date June 15, 2024, it is clear from the original
28 Complaint and the First Amended Complaint that the subject incident took place on or
1 Neither Wickstrom nor officer Lindsay presented me with court
2 order to remove me from my residence nor did I consent to leave at that
3 moment in time. I had paid rent for 1/2 the month of June 2022 and I
4 offered Wickstrom rent for 1 more day so I could recover from my injury
5 and remove the rest of my belongings. I had already paid for 2 weeks rent
6 in a condo on the Lake.
7
8 My intention was to move on that day to my condo rental, but was
9 unable to, I had no one to help me. Lindsay had threatened me with
10 arrest and told me I had 5 minutes to gather my belongings & 3 cats. After
11 5 minutes of mayham with Lindsay yelling at me, my 2 cats ran and hid, 1
12 in the wall, Lindsay handcuffed me and forced me outside, where
13 Wickstrom was replacing the locks on the front door.
14
15 Lindsay did not take me to jail as he threatened. He uncuffed me
16 and told me to leave the premises and not return or I would be arrested for
17 trespassing, and that I could retrieve my other 2 cats whenever Wickstrom
18 returned to the mountain. 5 days later & then 12 days later I was able to
19 get my 2 cats out and some belongings. Wickstrom took everything else
20 to the dump without my consent. A Peace officer is not lawfully
21 performing his duty if he is unlawfully detaining someone & he took an
22 oath of office.
23
24 (SAC, pp. 3-4).
25
26 Plaintiff appears to assert the following claims against Defendants: (1) false
27 arrest, in alleged violation of the Fourth Amendment; (2) deprivation of liberty and
28 property without due process, in alleged violation of the Fifth Amendment; (3) cruel and
1 unusual punishment, in alleged violation of the Eighth Amendment; (4) deprivation of the
2 “privileges and protections” of citizenship, in alleged violation of the Fourteenth
3 Amendment; and (5) denial of the right to access the courts, in alleged violation of the
4 First Amendment (id., pp. 5-9). Plaintiff seeks $3900 in compensatory damages and $25
5 million in punitive damages (id., p. 10).
6
7 DISCUSSION
8
9 I. The SAC, Like the Previous Complaints, Fails to State a Cognizable
10 Municipal Liability Claim.
11
12 Previously in this action, the Court twice has advised Plaintiff of the legal
13 standards applicable to civil rights claims against the County:
14
15 . . . . Plaintiff may not sue a municipal entity such as the County on a
16 theory of respondeat superior, which is not a theory of liability cognizable
17 under 42 U.S.C. section 1983. See Connick v. Thompson, 563 U.S. 51,
18 60 (2011); Ashcroft v. Iqbal, 556 U.S. [662, 676 (2009)]; Polk County v.
19 Dodson, 454 U.S. 312, 325 (1981). A municipal entity may be held liable
20 only if the alleged wrongdoing was committed pursuant to a municipal
21 policy, custom or usage. See Board of County Comm’rs of Bryan County,
22 Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York
23 City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
24
25 Conclusory allegations do not suffice to plead a municipal liability
26 claim. See Ashcroft v. Iqbal, 556 U.S. at 678; Starr v. Baca, 652 F.3d
27 1202, 1216 (9th Cir. 2011) (en banc), cert. denied, 566 U.S. 982 (2012)
28 (“allegations in a complaint or counterclaim may not simply recite the
1 elements of a cause of action, but must contain sufficient allegations of
2 underlying facts to give fair notice and to enable the opposing party to
3 defend itself effectively”); see also AE ex rel. Hernandez v. County of
4 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (pleading standards set forth in
5 Starr v. Baca govern municipal liability claims).
6
7 (July 25, 2024 Order, p. 8; October 11, 2024 Order, pp. 6-7).4 The Court also dismissed
8 all claims against the County alleged in the First Amended Complaint without leave to
9 amend (October 11, 2024 Order, p. 11).
10
11 Despite the Court’s October 11, 2024 Order, Plaintiff again attempts to bring a
12 Fourth Amendment unlawful seizure claim again the County (SAC, p. 5). Plaintiff also
13 attempts to bring four “new” civil rights claims against the County for alleged First, Fifth,
14 Eighth and Fourteenth Amendment violations (SAC, pp. 6-9). These attempts violated
15 the October 11, 2024 Order. Moreover, Plaintiff fails to allege any facts remotely
16 supporting a viable municipal liability claim. As with the original Complaint and the First
17 Amended Complaint, Plaintiff’s allegations in the SAC do not plausibly demonstrate that
18 the alleged constitutional violations were committed pursuant to a County policy, custom
19 or usage. See Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011), cert.
20 denied, 569 U.S. 904 (2013) (affirming dismissal of municipal and supervisor liability
21 claims which “lack[ed] any factual allegations that would separate them from the
22 ‘formulaic recitation of a cause of action’s elements’” deemed insufficient by the United
23 States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
24 also Ashcroft v. Iqbal, 556 U.S. at 678; Starr v. Baca, 652 F.3d at 1216. Thus, Plaintiff
25 still cannot state a cognizable claim against the County.
26
4 In previous actions, this Court also advised this Plaintiff of these same legal
27
standards. See Orders filed in Brown v. CA DMV, CV 18-1418-CJC(E), Brown v. County
28 of San Bernardino, CV 15-294-CJC(E) and Brown v. State of California, CV 13-145-
1 II. The SAC Fails to State a Cognizable Fifth Amendment Claim.
2
3 Plaintiff alleges that Lindsay deprived Plaintiff of her “liberty and property
4 (residence) without due process of law,” in asserted violation of the Fifth Amendment
5 (SAC, p. 6). However, “[t]he Due Process Clause of the Fifth Amendment . . . [applies]
6 only to actions of the federal government – not to those of state or local governments.”
7 See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (citation omitted); see
8 also Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (“[T]he Fifth Amendment’s
9 due process clause only applies to the federal government.”); Castillo v. McFadden, 399
10 F.3d 993, 1002 n.5 (9th Cir.), cert. denied, 546 U.S. 818 (2005) (“The Fifth Amendment
11 prohibits the federal government from depriving persons of due process, while the
12 Fourteenth Amendment explicitly prohibits deprivations without due process by the
13 several States . . . .”). Thus, Plaintiff cannot state a Fifth Amendment Due Process
14 claim.
15
16 III. The SAC Fails to State a Cognizable Eighth Amendment Claim.
17
18 Plaintiff claims that Lindsay inflicted cruel and unusual punishment on Plaintiff in
19 asserted violation of Eighth Amendment when Lindsay allegedly forced Plaintiff to leave
20 her residence and to suffer severe hardship (SAC, p. 7). However, “the Eighth
21 Amendment only prevents the imposition of cruel and unusual punishment on convicted
22 prisoners.” Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004), cert. denied, 545
23 U.S. 1139 (2005) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)); see also
24 Vazquez v. County of Kern, 949 F.3d 1153, 1163-64 (9th Cir. 2020). Because Plaintiff
25 was not a convicted prisoner at the time of the alleged constitutional violation, Plaintiff
26 cannot state a cognizable Eighth Amendment claim.
27 ///
28 ///
1 IV. The SAC Fails to State a Cognizable Fourteenth Amendment Claim.
2
3 Plaintiff attempts to assert a Fourteenth Amendment claim, stating: “As a citizen
4 of these United States and residing in the State of California in 2022 at the time of the
5 incident, I was entitled to privileges and protections and rights of the State and the
6 country. Lindsay deprived me of all my rights as a citizen, tenant and as a human being”
7 (SAC, p. 8). To the extent that Plaintiff is attempting to reassert a Fourteenth
8 Amendment Due Process claim, the Court already dismissed that claim without leave to
9 amend (see October 11, 2024 Order, pp. 9-10). To the extent that Plaintiff’s claim is
10 based on Lindsay’s allegedly unlawful arrest of Plaintiff, the claim is properly analyzed
11 under the Fourth Amendment, not the Fourteenth Amendment. See Larson v. Neimi, 9
12 F.3d 1397, 1402 (9th Cir. 1993), superseded on other grounds by rule, as stated in C.B.
13 v. City of Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc), cert. denied, 574 U.S.
14 1159 (2015) (“[I]n actions for the unconstitutional seizure of persons by officials, liability
15 will be determined under the specific standards of the Fourth Amendment rather than
16 under the general due process standards of the Fourteenth Amendment.”); Braddy v.
17 Drug Enforcement Agency, 464 F. Supp. 3d 1159, 1166 (C.D. Cal. 2020) (denying leave
18 to amend complaint to add Fifth and Fourteenth Amendment substantive due process
19 claims because those constitutional provisions did not provide proper framework for
20 plaintiff's search-and-seizure claims); see also County of Sacramento v. Lewis, 523 U.S.
21 833, 843 (1998) (if a specific constitutional provision covers a plaintiff's constitutional
22 claim, the claim must be analyzed under the standard appropriate to that specific
23 provision, and not under general due process); Albright v. Oliver, 510 U.S. 266, 273
24 (1994) (“Where a particular Amendment ‘provides an explicit textual source of
25 constitutional protection’ against a particular sort of government behavior, ‘that
26 Amendment, not the more generalized notion of substantive due process, must be the
27 guide for analyzing these claims.’”) (quoting Graham v. Connor, 490 U.S. 386, 395
28 (1989)). Thus, Plaintiff fails to state a cognizable Fourteenth Amendment claim.
1 V. The SAC Fails to State a Cognizable First Amendment Claim.
2
3 Plaintiff purports to bring a First Amendment claim against “Deputy Sheriff
4 Lindsay, County of San Bernardino, this Court and this Judge” (SAC, p. 9). Plaintiff
5 alleges: “As a citizen of these United States of America, I have a 1st Amend[ment] right
6 to redress my grievances to my Government (i.e. you)” (id.). Plaintiff further alleges: “I
7 will be harmed by this court if not allowed to [f]ile my case due to my insuffic[iencies],
8 ignorance” (id.). It appears that Plaintiff may be attempting to allege a First Amendment
9 claim for denial of access to the courts.
10
11 In order to bring a successful claim for denial of access to the courts, a plaintiff
12 must plead facts plausibly demonstrating that the defendants caused the plaintiff to
13 suffer actual injury to a nonfrivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 348-
14 53 (1996); Christopher v. Harbury, 536 U.S. 403, 415-17 (2002). An actual injury may
15 include an inability to meet a deadline or file a claim. See Nevada Dep't of Corrections
16 v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), cert. denied, 566 U.S. 911 (2012).
17 Plaintiff does not allege any facts plausibly demonstrating that Plaintiff suffered an actual
18 injury to a nonfrivolous legal claim or that any named Defendant caused such an injury.
19 Although it does not seem likely that Plaintiff can allege facts sufficient to state a
20 cognizable First Amendment claim against any named Defendant, in light of Plaintiff’s
21 pro se status, the Court will afford Plaintiff an opportunity to amend as to this claim. See
22 Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely
23 clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of
24 the complaint's deficiencies and an opportunity to amend prior to dismissal of the
25 action.”).
26 ///
27 ///
28 ///
1 ORDER
2
3 The Second Amended Complaint is dismissed without leave to amend as to:
4 (1) all claims against the County; and (2) the Fifth, Eighth and Fourteenth Amendment
5 claims. It is absolutely clear that any further amendment of these claims would be futile.
6
7 In all other respects, the Second Amended Complaint is dismissed with leave to
8 amend. Plaintiff is granted thirty (30) days from the date of this Order within which to file
9 a Third Amended Complaint. Although the Court has not deemed defective all of
10 Plaintiff’s claims against Lindsay, the Court does require that any Third Amended
11 Complaint shall be complete in itself and shall not refer in any manner to the prior
12 pleadings. The Third Amended Complaint must not name the County as a Defendant.
13 The Third Amended Complaint must not allege any claims dismissed without leave to
14 amend in this order or any previous order. Plaintiff may not add defendants or claims
15 without leave of Court. See Fed. R. Civ. P. 21. Failure timely to file a Third Amended
16 Complaint in conformity with this Order may result in the dismissal of the action. See
17 Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002), cert. denied, 538 U.S. 909
18 (2003) (court may dismiss action for failure to follow court order); Simon v. Value Behav.
19 Health, Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000),
20 cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft
21 Corp., 486 F.3d 541 (9th Cir.), cert. denied, 552 U.S. 985 (2007) (en banc) (affirming
22 dismissal without leave to amend where plaintiff failed to correct complaint’s deficiencies,
23 court had afforded plaintiff opportunities to do so, and court had given plaintiff notice of
24 the substantive problems with his claims); Plumeau v. Sch. Dist. No. 40, County of
25 Yamhill, 130 F.3d
26 ///
27 ///
28 ///
1 || 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further amendment
2 || would be futile).
3
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5 IT IS SO ORDERED.
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7 DATED: December 12, 2024
8 Lo bl /-—
FRED W.SLAUGHTER
10 UNITED STATES DISTRICT JUDGE
11 || PRESENTED this 11th day of
12 || December, 2024 by:
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14 [S/
CHARLES F. EICK
15 || UNITED STATES MAGISTRATE JUDGE
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