“The Eleventh Amendment bars suits which seek either damages or injunctive relief 16 against a state, an ‘arm of the state,’ its instrumentalities, or its agencies.”
How later courts described this case
- “The Eleventh Amendment bars suits which seek either damages or injunctive relief 16 against a state, an ‘arm of the state,’ its instrumentalities, or its agencies.”
- holding that while leave to amend shall be freely given, the court does not have to 10 allow futile amendments
- “A pro se litigant 4 must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is 5 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 6 (citation omitted
- noting a court considers the merits of plaintiff’s substantive claim and the sufficiency 19 of the complaint in determining whether to grant a default judgment, which is disfavored
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 DONALD ROOTS, No. 2:24-cv-1767-DC-CKD (PS)
12 Plaintiff,
13 v. ORDER
14 ROBERT W. FOX, et al.
15 Defendants.
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17 Plaintiff initiated this action on June 24, 2024, with a fee-paid complaint arising out of
18 harm allegedly suffered in connection with criminal offenses charged against plaintiff in state
19 court. (ECF No. 1.) Because plaintiff proceeds without counsel, this matter was referred to the
20 undersigned by Local Rule 302(c)(21) pursuant to 28 U.S.C. § 636. Pursuant to Rule 12(b)(6) of
21 the Federal Rules of Civil Procedure, defendants Katherine Carlson and Gavin Newsom move the
22 court for an order dismissing the complaint.1 (ECF Nos. 11, 12.) For the reasons set forth below,
23 the complaint fails to state a claim and the motions to dismiss should be granted.
24 The other named defendants have not appeared in this action. The court will order plaintiff
25 to show cause in writing within 21 days of the date of this order as to why the court should not
26 also dismiss the claims against the other defendants.
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1 Defendant Carlson’s motion to dismiss also invokes Fed. R. Civ. P. 12(b)(4) and 12(b)(5)
28 alleging insufficient process and insufficient service of process. (ECF No. 11-1 at 2.)
1 I. Claims
2 The complaint includes four causes of action. The first claim alleges a violation of the
3 plaintiff’s Fourth Amendment right to personal property, asserting that the defendants, through
4 the Sheriff’s Department and court system, falsely imprisoned him for many years, seized his
5 property, and caused financial ruin (ECF No. 1, p. 3, ¶ 3). The plaintiff further claims that the
6 defendants used false evidence, intimidated witnesses, and engaged in other misconduct, resulting
7 in financial ruin, emotional distress, and physical injury from altercations with other inmates.
8 (Id.). The second claim alleges a violation of the First Amendment, arguing that plaintiff’s
9 incarceration prevented him from speaking to witnesses beneficial to his claims of innocence.
10 (ECF No. 1, p. 4, ¶ 3). The third claim asserts a violation of plaintiff’s Fourteenth Amendment
11 rights, alleging that the defendants failed to follow proper procedures and used insufficient or
12 false evidence in prosecuting the crime for which he was convicted (ECF No. 1, p. 5, ¶ 3).
13 Finally, the fourth claim alleges a violation of plaintiffs Second Amendment rights, contending
14 that the defendants falsely charged him with gun-related crimes (ECF No. 1, p. 6, ¶ 3).
15 II. Legal Standards
16 A. Motion to Dismiss Pursuant to Rules 12(b)(4) and 12(b)(5)
17 Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) permit a defendant to challenge
18 the form of summons and the method of service attempted by the plaintiff, respectively.
19 Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant must be
20 dismissed if service of the summons and complaint is not accomplished on the defendant within
21 90 days after the complaint was filed, absent a showing of good cause or excusable neglect.
22 B. Motion to Dismiss Pursuant to Rule 12(b)(6)
23 Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be warranted
24 for “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a
25 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
26 evaluating whether a complaint states a claim on which relief may be granted, the court accepts as
27 true the allegations in the complaint and construes the allegations in the light most favorable to
28 the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d
1 1242, 1245 (9th Cir. 1989). Particularly because plaintiff proceeds pro se, the court liberally
2 construes the pleadings and affords plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d
3 1026, 1027 (9th Cir. 1985). Nevertheless, courts are not required to accept as true allegations that
4 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Sprewell v.
5 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
6 IIII. Discussion
7 A. Defendant Carlson
8 Defendant Carlson argues the complaint fails to assert any specific claims against her,
9 identifying her only as “Assistant Public Defender’' associated with the “Superior Court of
10 Sacramento.” (ECF No. 11 at 2.) There are no allegations in the complaint that establish a causal
11 connection between defendant Carlson and any violation of the plaintiff’s rights. Indeed,
12 plaintiff’s opposition simply alleges that while plaintiff was being treated for mental illness at a
13 state hospital defendant Carlson threatened to “hold him there …longer if he did not sit down and
14 talk to her” and “attempted to pose” as [h]is attorney. (ECF No. 15 at 1.)
15 Plaintiff cannot bring a claim for damages under 42 U.S.C. § 1983 against any attorney
16 assigned to represented him in his criminal case. A plaintiff may bring an action under 42 U.S.C.
17 § 1983 to redress violations of “rights, privileges, or immunities secured by the Constitution and
18 [federal] laws” by a person or entity, including a municipality, acting under the color of state law.
19 42 U.S.C. § 1983. A public defender representing a client in the lawyer’s traditional adversarial
20 role is not a state actor for purposes of § 1983. See Vermont v. Brillon, 556 U.S. 81, 91 (2009)
21 (“assigned counsel ordinarily is not considered a state actor”) (citing Polk County v. Dodson, 454
22 U.S. 312 (1981)). An attorney acting in the role of a public defender may act for the State “when
23 making hiring and firing decisions on behalf of the State,” and “while performing certain
24 administrative and possibly investigative functions.” Polk County, 454 U.S. at 325. Thus, to the
25 extent plaintiff seeks damages from the attorney assigned to represent him in criminal
26 proceedings, the complaint fails to state a claim for relief.
27 Consequently, plaintiff’s claims asserted against defendant Carlson should be dismissed
28 under Rule 12(b)(6).
1 B. Defendant Newsom
2 Defendant Newsom argues that the complaint is “devoid of any allegations of any
3 conduct, knowledge or ratification of the violation of Plaintiff’s rights by Governor Newsom.”
4 (ECF No. 12 at 5.) The court’s review of the complaint demonstrates no allegations creating a
5 causal connection between defendant Newsom and any violation of plaintiff’s rights. Thus,
6 plaintiff has not alleged “enough facts to state a claim for relief that is plausible on its face,” Bell
7 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff’s opposition to defendant
8 Newsom’s motion to dismiss contains no argument or facts rebutting defendant’s analysis. (ECF
9 No. 15.)
10 It also appears that plaintiff’s claims against defendant Newsom are barred by the
11 Eleventh Amendment which generally prohibits lawsuits against states and state officers in
12 federal court unless the state has unequivocally consented to such a suit or Congress has
13 abrogated the state’s immunity. U.S. Const. amend XI; Pennhurst State Sch. & Hosp. v.
14 Halderman, 465 U.S. 89, 100 (1984), see also Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir.
15 1995) (“The Eleventh Amendment bars suits which seek either damages or injunctive relief
16 against a state, an ‘arm of the state,’ its instrumentalities, or its agencies.”) The Eleventh
17 Amendment’s jurisdictional bar applies regardless of the nature of the relief sought, including
18 declaratory and injunctive relief. See id. at 101 (1984).
19 The Supreme Court recognized a limited exception to Eleventh Amendment immunity
20 in Ex Parte Young, 209 U.S. 123 (1908), which permits “actions for prospective declaratory or
21 injunctive relief against state officers in their official capacities for their alleged violations of
22 federal law.” Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012).
23 However, for that exception to apply, the state officer must have a connection with the
24 enforcement of the allegedly unconstitutional statute. Long v. Van de Kamp, 961 F.2d 151, 152
25 (9th Cir. 1992).
26 As plaintiff’s complaint includes no facts regarding defendant Newsom and fails to
27 suggest any Ex Parte Young exception might apply, plaintiff’s claims asserted against defendant
28 Newsom should be dismissed under Rule 12(b)(6).
1 C. Other Defendants
2 On June 24, 2024, the Clerk’s Office issued summons to serve the defendants. (ECF No.
3 2,3.) In the civil new case documents issued on the same day, the court advised plaintiff, in
4 relevant part, that Rule 4(m) of the Federal Rules of Civil Procedure provides that a defendant
5 must be dismissed if service of the summons and complaint is not accomplished on the defendant
6 within 90 days after the complaint was filed. (ECF No. 4.) It appears that none of the defendants,
7 with the exception of defendant Newsom, have been properly served.2
8 Under Rule 4(m) of the Federal Rules of Civil Procedure, a district court must extend time
9 for service upon a showing of good cause and may extend time for service upon a showing of
10 excusable neglect. Fed. R. Civ. P. 4(m); see Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir.
11 2013). Pursuant to Rule 4 of the Rule of Civil Procedure:
12 If a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the
13 plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
14 But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
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16 Fed. R. Civ. P. 4(m).
17 Plaintiff acknowledged his failure to serve the defendants by filing a notice of “Summons
18 Returned Unexecuted.” (ECF No. 7.) Plaintiff has shown neither good cause nor excusable
19 neglect for the failure to serve defendants. Accordingly, plaintiff will be ordered to show cause in
20 writing within 21 days of the date of this order as to why these defendants should not be
21 dismissed for plaintiff’s failure to comply with Rule 4.
22 D. Leave to Amend
23 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is
24 unable to determine whether the current action is frivolous or fails to state a claim for relief. The
25 complaint must be dismissed.
26 The court has discretion to dismiss with or without leave to amend.
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2 This includes defendant Carlson, although she has also moved to dismiss the complaint under
28 Rule 12(b)(6) as discussed above.
1 Leave to amend should be granted if it appears possible that the defects in the complaint could be
2 corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
3 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant
4 must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is
5 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”
6 (citation omitted). However, if, after careful consideration, it is clear that a claim cannot be cured
7 by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. See
8 also, Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.
9 1983) (holding that while leave to amend shall be freely given, the court does not have to
10 allow futile amendments).
11 Therefore, plaintiff shall show cause in writing within 21 days of the date of this order
12 why plaintiff’s claims should not be dismissed for failure to state a claim. Even if plaintiff sought
13 to prosecute this case against the non-moving defendants by way of an extension of time for
14 service and/or default proceedings, the deficiencies in the complaint found as to the moving
15 defendants are similarly present as to the non-moving defendants. Plaintiff cannot obtain a
16 judgment against any defendant, including a non-appearing defendant, without sufficient factual
17 allegations that state a plausible claim. See generally Eitel v. McCool, 782 F.2d 1470, 1472 (9th
18 Cir. 1986) (noting a court considers the merits of plaintiff’s substantive claim and the sufficiency
19 of the complaint in determining whether to grant a default judgment, which is disfavored). As set
20 forth above, the complaint fails to state a claim against any defendant because it rests on mere
21 conclusions that the defendants acted illegally. This court may dismiss claims sua sponte under
22 Fed. R. Civ. P. 12(b)(6). See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987).
23 Accordingly, plaintiff shall show cause in writing why the court should not dismiss plaintiff’s
24 claims against both the moving and non-moving defendants for failure to state a claim.
25 IV. Conclusion and Order
26 For the reasons set forth above, IT IS HEREBY ORDERED as follows:
27 1. Within 21 days of the date of this order, plaintiff shall show cause in writing why
28 defendants David Bonilla, Samantha R. Brymer, Chu, Ferdon, Robert W. Fox,
1 Timothy M. Frawley, Josie Gastelo, Donna J. Hooper, Kirtz, Kline, Ellon Lutz, Gary
2 Lutz, Trina B. Plaven, R&R Workers, Renolds, Robert, Claudia D. Roots, Jan Scully,
3 Rodney J. Simpson, and John P. Winn should not be dismissed for plaintiff's failure to
4 comply with Rule 4 of the Federal Rules of Civil Procedure.
5 2. Within 21 days of the date of this order, plaintiff shall show cause in writing why all
6 of plaintiffs claims should not be dismissed for failure to state a claim.
7 | Dated: March 18, 2025 / hice
MN fe Ho. AG
CAROLYN K DELANEY?
9 UNITED STATES MAGISTRATE JUDGE
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