McCoy v. Green

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 LAKEITH L. MCCOY, Case No.: 1:25-cv-00238-KES-CDB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION FOR PLAINTIFF’S

13 v. FAILURE (1) TO STATE A CLAIM AND (2)

TO PROSECUTE AND TO OBEY COURT

14 LISA GREEN, et al., ORDERS AND LOCAL RULES

15 Defendants. (Doc. 7)

16 14-DAY OBJECTION PERIOD

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18 Relevant Background

19 Plaintiff Lakeith L. McCoy (“Plaintiff”) is proceeding pro se in this civil rights action

20 pursuant to 42 U.S.C. section 1983.

21 Plaintiff initiated this action with the filing of a complaint on February 24, 2025. (Doc. 1).

22 Following a preliminary review of the complaint, on April 22, 2025, the undersigned ordered

23 Plaintiff to show cause in writing “why Plaintiff’s Monell claim should not be dismissed as

24 duplicative of 1:15-cv-00768-KES-HBK (PC) [(“McCoy I”).]” (Doc. 4 at 5). In the show cause

25 order, the undersigned noted that Defendants’ conduct on which Plaintiff premises his Monell claim

26 (see Doc. 1 at 18-21) was known to Plaintiff at the time he commenced McCoy I and relates to the

27 same conduct at issue in McCoy I. (Id. at 4).

After Plaintiff failed to timely file a response to the Court’s show cause order, on May 20,

1 2025, the Court issued findings and recommendations to dismiss the action without prejudice for

2 Plaintiff’s failure to prosecute and to obey court orders and local rules. (Doc. 5).

3 The following day (May 21, 2025), the Clerk of the Court filed on Plaintiff’s behalf his

4 response to the show cause order, signed and dated on May 13, 2025. (Doc. 6). In his response,

5 Plaintiff represents that his complaint is not duplicative of the earlier-filed McCoy I action as this

6 case “proceeds with claims that arose after” McCoy I (which involved excessive force), and at the

7 time that case was filed, he “had not been subjected” to the malicious prosecution that is “now

8 before the Court[.]” (Id. ¶¶ 2-4). Plaintiff represents that the instant complaint “may have alleged

9 or mentioned excessive force” but his Monell claim here “is for the actions surrounding the

10 [m]alicious [p]rosecution such as the failure to discipline staff for filing false reports which did not

11 or could not have been pled until after [his] criminal case was dismissed and after [McCoy I] had

12 been initiated.” (Id. ¶ 5). He further represents that the excessive force conduct in McCoy I “does

13 not relate” to his current malicious prosecution claim and other than “the facts of the conduct that

14 led” to the malicious prosecution. (Id. ¶ 6). Plaintiff represents that the malicious prosecution here

15 was retaliatory and that he was not criminally prosecuted “until a year after” the alleged excessive

16 force. (Id. ¶ 7). In his response to the show cause order, Plaintiff requested leave to amend his

17 complaint “to clarify the matter.” (Id. ¶ 8).

18 In light of Plaintiff’s timely response to the show cause order, the Court vacated the findings

19 and recommendations to dismiss the action for Plaintiff’s failure to prosecute, discharged its show

20 cause order, and granted Plaintiff leave to amend his Monell claim. (Doc. 7).

21 Plaintiff Failed to Timely Amend and his Complaint Fails to State a Monell Claim

22 In its order granting Plaintiff leave to amend his Monell claim, the Court set forth the

23 governing legal standards. (Doc. 7 at 3-4).

24 A. Monell Claim - Governing Legal Standard

25 To cognizably allege a claim under Monell, Plaintiff must show: (1) he was deprived of a

26 constitutional right; (2) defendant had a policy or custom; (3) the policy or custom amounted to a

27 deliberate indifference to his constitutional right; and (4) the policy was the moving force behind

1 Monell v. Dep't of Social Servs. Of City of New York, 436 U.S. 658, 694 (1978)) (emphasis added).

2 A custom is “a widespread practice that, although not authorized by written law or express

3 municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force

4 of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal quotations omitted).

5 The custom must be so “persistent and widespread” that it constitutes a “permanent and well

6 settled” practice. Monell, 436 U.S. at 691 (internal quotation omitted). “Liability for improper

7 custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices

8 of sufficient duration, frequency and consistency that the conduct has become a traditional method

9 of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However,

10 “contemporaneous or subsequent conduct cannot establish a pattern of violations that would

11 provide ‘notice to the [local government entity] and the opportunity to conform to constitutional

12 dictates.’” Connick v. Thompson, 563 U.S. 51, 63 n.7 (2011).

13 B. Monell Claim - Analysis

14 Consistent with the above-cited authority, the Court admonished Plaintiff that he may not

15 maintain a Monell claim based on allegations that he faced malicious prosecution on an isolated

16 basis. (Doc. 7 at 4). Instead, Plaintiff was advised that any amended complaint must challenge a

17 law or regulation, or a policy or procedure or custom of County of Kern that would give rise to

18 municipal liability. Id.

19 Plaintiff’s allegations regarding Defendants’ maintenance of unconstitutional customs,

20 policies, and practices are inadequate. Thus, Plaintiff vaguely alleges in paragraphs 72 and 73 of

21 the complaint that Defendants “have been bringing false criminal charges against the citizens of

22 Kern County” based on false allegations and that, “in many instances,” charges were brought

23 against prisoners that were handcuff and could not have committed the crime charged. Separately,

24 in paragraphs 91 and 93, Plaintiff alleges in conclusory fashion that Defendants maintained

25 unidentified customs, policies, and practices relating to employing, retaining, supervising, and

26 training, that resulted in the violation of Plaintiff’s constitutional rights. However, only two sub-

27 allegations of these paragraphs arguably apply to Plaintiff’s claim of municipal liability for

1 unconstitutional policy, custom, and practice of “prosecuting individuals without probable cause

2 or reasonable suspicion,” and paragraph 93(g) similarly alleges Defendants maintained a policy,

3 custom, and practice of failing to investigate claims of malicious prosecution.

4 Plaintiff’s assertions provide no facts to show a pattern of similar events or violations. See

5 Segura v. City of La Mesa, 647 F. Supp. 3d 926, 936 (S.D. Cal. 2022) (“Put more simply, Plaintiff

6 must do more than allege in a conclusory fashion that the County maintains an unwritten policy or

7 custom of permitting the types of wrongs Plaintiff experienced.”). Additionally, Plaintiff does not

8 assert facts establishing that the relevant policymakers, or prison or prosecutorial officials, were

9 made aware of any violations or otherwise had actual or constructive notice of them, nor that any

10 individuals with final policymaking authority caused any violations or ratified them. See Davis v.

11 City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (“Davis has failed to establish that there is

12 a genuine issue of material fact regarding the existence of a policy of inadequate training,

13 inadequate medical treatment of prisoners, or deliberate indifference to the use of excessive force.

14 A plaintiff cannot prove the existence of a municipal policy or custom based solely on the

15 occurrence of a single incident of unconstitutional action by a non-policymaking employee.”).

16 Separately, the Court admonished Plaintiff that the naming of CDCR as a defendant in the

17 operative complaint was improper given that suits against CDCR and its facilities are barred by

18 the Eleventh Amendment. Specifically, the Eleventh Amendment prohibits federal courts from

19 hearing suits brought against a state by its own citizens, as well as by citizens of other states. See

20 Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This

21 prohibition extends to suits against states and state agencies. See Lucas v. Dep't of Corrs., 66 F.3d

22 245, 248 (9th Cir. 1995) (per curiam); Taylor, 880 F.2d at 1045. A state’s agency responsible for

23 incarceration and correction of prisoners is a state agency for purposes of the Eleventh

24 Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). The State of

25 California has not waived its Eleventh Amendment immunity for federal claims under section

26 1983. Dittman v. California, 191 F.3d 1020, 1025–26 (9th Cir. 1999) (citing Atascadero State

27 Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see Brown v. Cal. Dep't. of Corrs., 554 F.3d 747,

1 Terms entitled to Eleventh Amendment immunity).

2 After noting Plaintiff’s deficiencies in his pleading of a Monell claim and granting him

3 leave to amend (see Doc. 7), Plaintiff failed to file an amended complaint correcting the noted

4 deficiencies. Accordingly, the undersigned assesses that leave to amend would be futile. See

5 Hartman v. CDCR, 707 F.3d 1114, 1129-30 (9th Cir. 2013).

6 Plaintiff Failed to Follow the Court’s Orders and to Prosecute the Action

7 Apart from Plaintiff’s failure to state a claim upon which relief may be granted, Plaintiff

8 has failed to comply with this Court’s order to file an amended complaint and, as such, has failed

9 to prosecute this action. Accordingly, the undersigned will recommend Plaintiff’s complaint be

10 dismissed on this separate, independent ground.

11 A. Failure to Comply/Failure to Prosecute - Governing Legal Standard

12 Local Rule 110, corresponding with Federal Rule of Civil Procedure 11, provides that

13 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may

14 be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of

15 the Court.” E.D. Cal. Local Rule 110. The Court has the inherent power to control its docket and

16 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the

17 action. Bautista v. Los Angeles Cnty., 216 F.3d 837, 841 (9th Cir. 2000). A court may dismiss an

18 action based on a party’s failure to prosecute an action, obey a court order, or comply with local

19 rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure

20 to comply with a court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128,

21 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan,

22 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local

23 rules).

24 “In determining whether to dismiss an action for lack of prosecution, the district court is

25 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; (2)

26 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

27 policy favoring disposition of cases on their merits; and (5) the availability of less drastic

1 citation omitted). These factors guide a court in deciding what to do and are not conditions that

2 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products

3 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted).

4 B. Failure to Comply/Failure to Prosecute - Governing Legal Standard

5 Here, Plaintiff has failed to comply with the Court’s orders and Local Rules. Plaintiff has

6 filed no response to the Court’s order granting him leave to amend his complaint and the time to

7 do so has passed. There are no other reasonable alternatives available to address Plaintiff’s failure

8 to respond and otherwise obey this Court’s orders. Thus, the first and second factors—the

9 expeditious resolution of litigation and the Court’s need to manage its docket—weigh in favor of

10 dismissal. Carey, 856 F.2d at 1440.

11 The third factor, risk of prejudice to Defendants, also weighs fairly in favor of dismissal

12 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an

13 action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). This matter cannot proceed

14 further without Plaintiff’s participation to prosecute the case and explain to the Court why his

15 Monell claim should not be dismissed as duplicative of McCoy I (Doc. 4 at 4) and for failure to

16 state a claim (Doc. 7 at 3-4; see supra). The presumption of injury holds given Plaintiff’s

17 unreasonable delay in prosecuting this action. Thus, the third factor—a risk of prejudice to the

18 Defendants—also weighs in favor of dismissal. Carey, 856 F.2d at 1440.

19 The fourth factor usually weighs against dismissal because public policy favors disposition

20 on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, “this factor

21 lends little support to a party whose responsibility it is to move a case toward disposition on the

22 merits but whose conduct impedes progress in that direction.” In re PPA, 460 F.3d at 1228.

23 Plaintiff has not moved this case forward toward disposition on the merits. He has instead failed

24 to comply with this Court’s orders and the Local Rules and, thus, is impeding the progress of this

25 action. Therefore, the fourth factor — the public policy favoring disposition of cases on their

26 merits — also weighs in favor of dismissal. Carey, 856 F.2d at 1440.

27 Finally, the Court’s warning to a party that failure to obey the court’s order will result in

1 | Here, the Court’s order granting Plaintiff leave to amend and requiring a response from Plaintiff

2 | cautioned: “If Plaintiff fails to timely comply with this order, the Court will recommend that

3 | this action be dismissed for failure to state a claim, failure to obey a court order, and/or failure

4 | to prosecute.” (Doc. 7 at 5). Plaintiff was adequately forewarned that the failure to timely file and

5 || amended complaint could result in terminating sanctions.

6 Conclusion and Recommendation

7 For the reasons given above, IT IS RECOMMENDED as follows:

8 1. The Court DISMISS this action for Plaintiffs failure to state a claim upon which relief may

9 be granted, and separately, for his failure prosecute this action and to comply with the

10 Court’s orders and Local Rules. See E.D. Cal. Local Rule 110; and

11 2. The Clerk of the Court be DIRECTED to close this case.

12 These Findings and Recommendations will be submitted to the United States District Judge

13 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days after

14 | being served with a copy of these Findings and Recommendations, a party may file written

15 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to

16 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave

17 | of Court and good cause shown. The Court will not consider exhibits attached to the Objections,

18 | party may refer to exhibits in the record by CM/ECF document and page number. Any pages

19 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing

20 | these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s failure to file any

21 | objections within the specified time may result in the waiver of certain rights on appeal. Wilkerson

22 | v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

23 | IT IS SO ORDERED.

24 | } ) Bo

Dated: _ June 23, 2025

25 UNITED STATES MAGISTRATE JUDGE

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