Smith v. Newsome

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 NATHANAEL SMITH, Case No. 1:24-cv-00592-KES-BAM

12 Plaintiff, SCREENING ORDER GRANTING

PLAINTIFF LEAVE TO AMEND

13 v.

(Doc. 7)

14 GAVIN NEWSOME, et al.,

15 Defendants.

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17 On May 17, 2024, Plaintiff Nathanael Smith, proceeding pro se and in forma pauperis,

18 filed his complaint against Defendants Gavin Newsome, Kevin Seibert, Hallie Campbell, David

19 Beyersdorf, Philip Pimentel, Anaiah Kirk, Ryan Campbell, Martin Huberty, Terry Woodrow,

20 Frank Axe, Gary Tofanelli, Jeff Brown, Veronica Roberts, Cassandra Jenecke, Nate Nutting,

21 Clint Parish, Oscar Martinez, Diego Martinez, Natalia Monaco, Stacy Spring, Sharon Sanders,

22 California Highway Patrol, Central Sierra Child Support Agency, Olivia Phillips, and July

23 Salkeld for alleged violations of his rights under the First, Second, Fifth, Sixth, Seventh, Eighth,

24 and Fourteenth Amendments and other federal statutes. (Doc. 1.) The Court granted Plaintiff’s

25 application to proceed in forma pauperis and advised Plaintiff that the Court is required to screen

26 complaints of pro se litigants proceeding in forma pauperis pursuant to Title 28 of the United

27 States Code section 1915(e)(2) and would screen Plaintiff’s complaint in due course. (Doc. 5.)

28 On May 28, 2024, Plaintiff subsequently filed a “motion to stay lower court orders” requesting

1 the Court stay state court orders. (Doc. 6.) Plaintiff subsequently filed a first amended complaint

2 and accompanying affidavit and writ of supersedeas on September 23, 2024. (Docs. 7-8.)

3 Plaintiff’s first amended complaint (Doc. 7) is currently before the Court for screening.

4 I. Screening Requirement and Standard

5 The Court screens complaints brought by persons proceeding in pro se and in forma

6 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to

7 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be

8 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28

9 U.S.C. § 1915(e)(2)(B)(ii).

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

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

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

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

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

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

16 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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

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

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

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

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

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

23 II. Summary of Plaintiff’s Allegations

24 Per his first amended complaint, Plaintiff brings this action against Defendants Judge

25 Kevin Seibert, Judge Hallie Campbell, Judge David Beyersdorf, Commissioner Philip Pimentel,

26 Ryan Campbell, Veronica Roberts, Nate Nutting, Clint Parish, Central Sierra Child Support

27 Agency, Olivia Phillips, Juley Salkeld, and “John and Jane Doe (TBD).” (Doc. 7 at 10-12.)

28 Generally, Plaintiff appears to allege that California state courts improperly issued various orders

1 which have limited his custody and visitation rights, caused him to pay additional child support

2 payments, and caused him emotional, physical, and financial harm. (Id. at 6-15.) Plaintiff lists

3 various California state court decisions he alleges were improperly decided, including a domestic

4 violence restraining order, a requirement that custody be exchanged at a police station, court-

5 ordered therapy, a prohibition against recording interactions with his son, visitation rights

6 restrictions, a no visitation order, the denial of Plaintiff’s petition for a domestic violence

7 restraining order, denial of Plaintiff’s petition to restore custody rights, a civil restraining order.

8 (Id. at 6-8.) In answer to “What are the facts underlying your claim(s),” Plaintiff writes “See

9 Attached (Attachment A),” which lists Defendants and their alleged actions. (Id. at 10-12.)

10 There is also a document titled “Summary and Key Points of “RE: Declaration Regarding

11 continued lies and perjury upon the court to kidnap minor child.” (Doc. 7 at 14-15.) However, it

12 is unclear whether this is part of “Attachment A” or is part of the additional 280 pages of

13 California court filings and other authority that Plaintiff attaches to his complaint. (Id. at 14-298.)

14 Plaintiff submits the complaint under the First, Second, Fifth, Sixth, Seventh, Eighth, and

15 Fourteenth Amendments to the United States Constitution, as well as under 18 U.S.C. § 241, 18

16 U.S.C. § 242, 18 U.S.C. § 286, 18 U.S.C. § 287, 18 U.S.C. § 371, 18 U.S.C. § 1031, 18 U.S.C. §

17 1951(a)(b)(2), 18 U.S.C. § 1961(1)(A)(B)(2)(3)(4)(5), 18 U.S.C. § 2382, 18 U.S.C. § 455, 31

18 U.S.C. § 3729(a)(1)(A)(B)(E), and 42 U.S.C. § 658. (See Doc. 7 at 4.)

19 III. Discussion

20 A. Federal Rule of Civil Procedure 8

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

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

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

24 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

25 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

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

27 at 570, 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are

28 not. Id.; see also Twombly, 550 U.S. at 556–557.

1 Plaintiff’s complaint is not a plain statement of his claims. While short, Plaintiff’s

2 complaint does not clearly state what happened. Although Plaintiff broadly alleges

3 constitutional and statutory violations and lists California state court decisions that he argues

4 violate his constitutional rights, the short descriptions of the California state court decisions only

5 contain conclusory statements and legal conclusions. (Doc. 7 at 6-8.) Plaintiff does not explain

6 how the cited federal statutes were violated or provide further factual allegations regarding the

7 alleged constitutional and statutory violations. (See Id. at 1-12.) These conclusory statements

8 will not suffice, and Plaintiff must allege sufficient facts to support a cause of action. As

9 indicated above, a mere recital of constitutional elements or the elements of a particular cause of

10 action is not sufficient.

11 While “much liberality is allowed in construing pro se complaints, a pro se litigant cannot

12 simply dump a stack of exhibits on the court and expect the court to sift through them to

13 determine if some nugget is buried somewhere in that mountain of papers, waiting to be

14 unearthed and refined into a cognizable claim.” Lam v. California Dep't of Corr. & Rehab., No.

15 1:23-CV-01167 BAM PC, 2023 WL 8701254, at *2 (E.D. Cal. Dec. 15, 2023), report and

16 recommendation adopted, No. 1:23-CV-1167 JLT BAM PC, 2024 WL 201269 (E.D. Cal. Jan. 18,

17 2024). “The Court will not comb through attached exhibits seeking to determine whether a claim

18 possibly could have been stated where the pleading itself does not state a claim. In short,

19 [Plaintiff] must state a claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-

20 01063-PMP-GWF, 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011). The Court has not review

21 Plaintiff’s 280 pages of exhibits.

22 B. Jurisdiction - Child Custody, Visitation, and Child Support Claims

23 Insofar as Plaintiff is attempting to raise claims regarding child custody, visitation, child

24 support, or restraining orders, the Court is without jurisdiction over such claims because they are

25 exclusively matters of state law. See Ankenbrandt v. Richards, 504 U.S. 689, 702-704 (1992)

26 (holding that the domestic relations exception to federal subject matter jurisdiction “divests the

27 federal courts of power to issue divorce, alimony and child custody decrees.”); see also Peterson

28 v. Babbitt, 708 F.2d 465, 466 (9th Cir.1983) (stating that “federal courts have uniformly held that

1 they should not adjudicate cases involving domestic relations, including ‘the custody of minors

2 and a fortiori, right of visitation.’ For that matter, the whole subject of domestic relations and

3 particularly child custody problems is generally considered a state law matter”). “Even when a

4 federal question is presented, federal courts decline to hear disputes which would deeply involve

5 them in adjudicating domestic matters.” Thompson v. Thompson, 798 F.2d 1547, 1558 (9th

6 Cir.1986).

7 Furthermore, to the extent Plaintiff is challenging orders of the state court regarding

8 custody, visitation, child support and wage garnishment, he may not do so. This Court lacks

9 subject matter jurisdiction to review the final determinations of state court dependency

10 proceedings. See, e.g., Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir.1986)

11 (“The United States District Court ... has no authority to review the final determinations of a

12 state court in judicial proceedings.”). Under the Rooker-Feldman doctrine, a federal district court

13 does not have subject-matter jurisdiction to hear an appeal from the judgment of a state court.

14 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005); see also Dist. of

15 Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co.,

16 263 U.S. 413, 415 (1923). Therefore, Plaintiff's claims involving child custody orders,

17 restraining orders, and child support decisions issued by the state court are barred by the Rooker-

18 Feldman doctrine. See, e.g., Moore v. County of Butte, 547 Fed.App’x. 826, 829 (9th Cir. 2013)

19 (concluding plaintiff's claims challenging the outcome of custody proceedings were properly

20 dismissed); Rucker v. County of Santa Clara, State of California, No. C02-5981 JSW, 2003 WL

21 21440151, at *2 (N.D. Cal. June 17, 2003) (finding the plaintiff's claims were “inextricably

22 intertwined” with the state court’s rulings where the plaintiff “challenge[d] his original child

23 support order on jurisdictional grounds, dispute[d] his total child support arrearages, and

24 allege[d] that Santa Clara County’s garnishment order against his disability benefits payments is

25 invalid”).

26 C. First Amendment

27 The First Amendment provides that “Congress shall make no law respecting an

28 establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

1 speech, or of the press; or the right of the people peaceably to assemble, and to petition the

2 Government for a redress of grievances.” U.S. Const. amend. I. Plaintiff alleges that Defendants

3 conspired to abridge his first amendment rights in relation to the issuance of a domestic violence

4 restraining orders, court-ordered therapy, and custody rights. (Doc. 7 at 4-8.) However, the

5 nature of Plaintiff’s First Amendment claim is unclear. While Plaintiff includes legal conclusions

6 regarding those orders, Plaintiff’s complaint is devoid of factual allegations regarding how any

7 Defendant abridged his right to free speech. Again, this Court does not have jurisdiction to

8 review orders issued in state court proceedings.

9 D. Second Amendment

10 “The Second Amendment provides: ‘A well regulated Militia, being necessary to the

11 security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’”

12 D.C. v. Heller, 554 U.S. 570, 576 (2008) (quoting U.S. Const. amend. I). Plaintiff alleges that

13 Defendants conspired to abridge his first amendment rights in relation to the issuance of a

14 domestic violence restraining orders, court-ordered therapy, and custody rights. (Doc. 7 at 4-8.)

15 However, these do not implicate the Second Amendment and Plaintiff does not include factual

16 allegations related to any limitation on Second Amendment rights.

17 E. Fifth Amendment

18 Plaintiff alleges that defendants violated the Fifth Amendment related to a denial of

19 Plaintiff’s petition for a domestic violence restraining order and Plaintiff’s “Request for

20 Statement of Decision.” (Doc. 7 at 4, 7.) However, “the Fifth Amendment’s due process clause

21 applies only to the federal government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir.

22 2008). Plaintiff does not allege that any defendants are federal government employees. (See Id.

23 at 1-12.)

24 F. Sixth Amendment

25 Plaintiff alleges that his Sixth Amendment right to trial was violated by issuance of a no

26 visitation order, denial of Plaintiff’s petition for a domestic violence restraining order, denial of

27 Plaintiff’s “Request for Statement of Decision,” and custody modifications. (Id. at 4, 7.) The

28 protections of the Sixth Amendment apply to criminal proceedings, not the circumstances

1 alleged here. See Austin v. United States, 509 U.S. 602, 608 (1993) (“The protections provided

2 by the Sixth Amendment are explicitly confined to criminal prosecutions.”) (quotation omitted).

3 G. Seventh Amendment

4 Plaintiff alleges that his Seventh Amendment rights were violated. (Doc. 7 at 4.) The

5 Seventh Amendment provides for the right to a trial by jury at suits in common law. U.S. Const.

6 amend. VII. This Seventh Amendment constitutional guarantee “appl[ies] to actions enforcing

7 statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and

8 remedies, enforceable in an action for damages in the ordinary courts of law.” Tamosaitis v. URS

9 Inc., 781 F.3d 468, 485 (9th Cir. 2015) (quoting Curtis v. Loether, 415 U.S. 189, 194 (1974)).

10 However, Plaintiff’s complaint includes no factual allegations implicating the Seventh

11 Amendment. (See Doc. 7 at 1-12.) Again, this Court does not have jurisdiction to review orders

12 issued in state court proceedings.

13 H. Eighth Amendment

14 Plaintiff alleges that Defendants violated his rights under the Eighth Amendment by

15 issuing a domestic violence restraining order against him, requiring him to exchange custody at a

16 police station, instituting visitation limitations, issuance of a no visitation order, denial of a

17 domestic violence restraining order, limitation of custody rights. (Doc. 7 at 4, 6-7.) The Eighth

18 Amendment prohibits excessive bail, fines or cruel and unusual punishment. U.S. Const. amend.

19 VII. These protections were designed to protect those convicted of crimes. Bell v. Wolfish, 441

20 U.S. 520, 535 n.16 (1979); Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977) (The Eighth

21 Amendment applies “only after the State has complied with the constitutional guarantees

22 traditionally associated with criminal prosecutions.”). Plaintiff’s complaint includes no factual

23 allegations indicating that he is entitled to Eighth Amendment protections. (See Doc. 7 at 1-12.)

24 This Court does not have jurisdiction to review orders issued in state court proceedings.

25 I. Fourteenth Amendment

26 Plaintiff broadly alleges that his Fourteenth Amendment rights were violated by

27 Defendants’ issuance of domestic violence restraining orders, court-ordered therapy, a

28 “prohibition against recording,” visitation limitations and a no-visitation order, denial of

1 Plaintiff’s “Request for Statement of Decision,” and civil restraining order. (Doc. 7 at 4, 6-7.)

2 Plaintiff does not suggest a theory under which his Fourteenth Amendment rights were violated

3 and does not allege facts under either the due process or equal protection clause. (See Doc. 7 at

4 1-12.)

5 1. Due Process

6 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations

7 of life, liberty, or property; and those who seek to invoke its procedural protection must establish

8 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due

9 process clause of the Fourteenth Amendment confers both substantive and procedural

10 protections. Albright v. Oliver, 510 U.S. 266, 272 (1994).

11 The substantive protections of the due process clause bar certain governmental actions

12 regardless of the fairness of the procedures that are used to implement them. Cty. of Sacramento

13 v. Lewis, 523 U.S. 833, 840 (1998). Therefore, the substantive protections of the due process

14 clause are intended to prevent government officials from abusing their power or employing it as

15 an instrument of oppression. Lewis, 523 U.S. at 846. The Supreme Court has held that “the

16 substantive component of the Due Process Clause is violated by executive action only when it

17 ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’”

18 Id. at 847. “[O]nly the most egregious official conduct can be said to be arbitrary in a

19 constitutional sense.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (quoting Lewis, 523

20 U.S. at 846).

21 “Substantive due process is ordinarily reserved for those rights that are ‘fundamental.’ ”

22 Brittain, 451 F.3d at 990. “The protections of substantive due process have for the most part

23 been accorded to matters relating to marriage, family, procreation, and the right to bodily

24 integrity,” and the Supreme Court has been reluctant to expand the concept of substantive due

25 process. Albright, 510 U.S. at 271-72. To state a substantive due process claim, a plaintiff must

26 “show both a deprivation of [his] liberty and conscience shocking behavior by the government.”

27 Brittain, 451 F.3d at 991.

28 “The requirements of procedural due process apply only to the deprivation of interests

1 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents

2 of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972). “[P]rocedural due process claims are

3 resolved by balancing tests, where differing interests can give rise to many differing procedural

4 requirements.” Brittain, 451 F.3d at 1000. “(D)ue process is flexible and calls for such

5 procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319,

6 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

7 Plaintiff ‘s conclusory allegations are insufficient to state a claim. There are no facts

8 alleged by which it could reasonably be inferred that Plaintiff has not received the process due

9 from Defendants as it relates to his allegations in this action. (See Doc. 7 at 1-12.)

10 2. Equal Protection

11 A plaintiff can state a claim for violation of the Equal Protection Clause, by showing

12 “that the defendant acted with an intent or purpose to discriminate against him based upon his

13 membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).

14 Intentional in this context means that the defendant acted, at least in part, because of the

15 plaintiff’s membership in a protected class. Serrano, 345 F.3d at 1082. Alternately, the plaintiff

16 can state a claim by alleging that he was intentionally treated differently than similarly situated

17 individuals and there was no rational basis for the difference in treatment. Thornton v. City of St.

18 Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

19 Plaintiff’s complaint does not include any factual allegations indicating that Plaintiff is a

20 member of a protected class or that any named defendant acted with the intent or purpose to

21 discriminate against him due to his membership in that class. (See Doc. 7 at 1-12.) Nor are there

22 any allegations that Plaintiff was intentionally treated differently than other similarly situated

23 individuals. (Id.)

24 J. Claims Under United States Code

25 Plaintiff alleges violations of various provisions of Title 18, including 18 U.S.C. § 241

26 (criminal statute for conspiracy against rights), 18 U.S.C. § 242 (criminal statute for deprivation

27 of rights under color of law), 18 U.S.C. § 286 (criminal statute for conspiracy to defraud the

28 Government with respect to claims), 18 U.S.C. § 287 (criminal statute for false, fictitious or

1 fraudulent claims), 18 U.S.C. § 371 (criminal statute for conspiracy to commit offense or to

2 defraud United States); 18 U.S.C. § 1031 (criminal statute for major fraud against the United

3 States); 18 U.S.C. § 1951 (criminal statute for interference with commerce by threats or

4 violence); 18 U.S.C. § 1961 (criminal statute for racketeering); and 18 U.S.C. § 2382 (criminal

5 statute for treason). (Doc. 7 at 4.) Plaintiff additionally includes claims under two other statutes:

6 31 U.S.C.A. § 3729 (false claims statute noting that violators of the statute are “liable to the

7 United States Government for a civil penalty” plus damages) and 42 U.S.C. § 658 (repealed

8 statute regarding child support in relation to social security). (Id.) “[T]he fact that a federal

9 statute has been violated and some person harmed does not automatically give rise to a private

10 cause of action in favor of that person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568

11 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 677, 688 (1979)). Rather, the Court

12 is to consider if Congress intended to create the private right of action in the statute, looking first

13 to the language of the statute. Id. “Civil causes of action ... do not generally lie under the criminal

14 statutes contained in Title 18 of the United States Code.” Del Elmer; Zachay v. Metzger, 967 F.

15 Supp. 398, 403 (S.D. Cal. 1997).

16 Here, the sections cited by Plaintiff provide for fines, penalties, and incarceration for

17 criminal offenses, as well as for liability to the United States Government for a false claims

18 statute. There is no language in these sections that would imply a cause of action exists to allow

19 Plaintiff to seek a remedy for these criminal statutes in this action.

20 K. Immunity

21 Several defendants are immune from suit. “Judges and those performing judge-like

22 functions are absolutely immune from damage liability for acts performed in their official

23 capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Additionally, judicial

24 immunity extends to preclude prospective injunctive relief against a state court judge for acts or

25 omissions made in that judge’s official capacity. 42 U.S.C. § 1983 (“[I]n any action brought

26 against a judicial officer for an act or omission taken in such officer’s judicial capacity,

27 injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief

28 was unavailable.”) Therefore, “judicial immunity is an immunity from suit, not just from

1 ultimate assessment of damages. Accordingly, judicial immunity is not overcome by allegations

2 of bad faith or malice[.]” Mireles v. Waco, 502 U.S. 9, 11 (1991) (internal citation omitted).

3 “Prosecutorial immunity applies to § 1983 claims. State prosecutors are absolutely

4 immune from § 1983 actions when performing functions ‘intimately associated with the judicial

5 phase of the criminal process,’ or, phrased differently, ‘when performing the traditional functions

6 of an advocate.’” Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 842 (citations omitted). This

7 immunity extends to actions during both the pre-trial and post-trial phases of a case. See Demery

8 v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984).

9 “The Eleventh Amendment bars suits for money damages in federal court against a state,

10 its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public

11 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh Amendment prohibits federal

12 courts from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought

13 against a state, its agencies (such as CDCR) or individual prisons, absent “a waiver by the state

14 or a valid congressional override. . . .” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.

15 1999). “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.” See Fireman’s Fund

17 Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation and

18 citations omitted), cert. denied, 538 U.S. 961 (2003). “The State of California has not waived its

19 Eleventh Amendment immunity with respect to claims brought under § 1983 in federal

20 court. . . .” Dittman, 191 F.3d at 1025–26 (citing Atascadero State Hosp. v. Scanlon, 473 U.S.

21 234, 241 (1985)).

22 IV. Conclusion and Order

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

24 state a cognizable claim. As Plaintiff is proceeding pro se, the Court will grant Plaintiff an

25 opportunity to amend his complaint to cure these deficiencies to the extent he is able to do so in

26 good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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

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

1 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to

2 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

3 omitted). Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

4 claims in his second amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)

5 (no “buckshot” complaints).

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

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

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

9 L.R. 220.

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

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

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

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

14 notice of voluntary dismissal; and

15 3. If Plaintiff fails to file an amended complaint in compliance with this order, the

16 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order,

17 for failure to prosecute, and for failure to state a claim.

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IT IS SO ORDERED.

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20 Dated: March 20, 2025 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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