Williams v. Andes Grp. New Day Baby Powder

• Decision Date: 02 October 2017
• Docket Number: No. CV 17-01639-CAS (PLA),CV 17-01639-CAS (PLA)
• Court: U.S. District Court — Central District of California
• Parties: ZACHARY EUGENE WILLIAMS, Plaintiff, v. ANDES GROUP - NEW DAY BABY POWDER, et al., Defendants.

ZACHARY EUGENE WILLIAMS, Plaintiff, v. ANDES GROUP - NEW DAY BABY POWDER, et al., Defendants.

No. CV 17-01639-CAS (PLA)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

October 2, 2017

ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND

Plaintiff, a state prisoner presently held at California City Correctional Facility in California City, California, filed a pro se civil rights action herein pursuant to 42 U.S.C. § 1983 on March 1, 2017, accompanied by a request to proceed in forma pauperis ("Request"). On March 8, 2017, the Request was denied for inadequate documentation and also because plaintiff's Complaint did not appear to be raising any federal civil rights claim. (ECF No. 4). Plaintiff subsequently was granted leave to proceed in forma pauperis. (ECF No. 10). On May 15, 2017, plaintiff filed a First Amended Complaint ("FAC"). (ECF No. 11). In the FAC, plaintiff named as defendants two private companies headquartered in Dallas, Texas, and St. Louis, Missouri. (Id. at 3). He also named "medical" at the Los Angeles Central Jail (id.), and the USC Medical Center (id. at 4).

Plaintiff purported to be raising a claim for "Product liability - Consumer Protection Act" for the sale of a "talc product" that he alleged caused an allergic reaction in March and April 2016. Plaintiff alleged that "defendants" knew of the problem but concealed or misrepresented it. (Id. at 3, 5). He also purported to be raising a claim for "Cruel and Unusual Punishment - medical care." (Id. at 6-7). Plaintiff sought monetary damages. (Id. at 8).

In accordance with the mandate of the Prison Litigation Reform Act of 1995 ("PLRA"), the Court screened the FAC prior to ordering service for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 U.S.C. § 1997e. After careful review of the FAC, the Court found that plaintiff's allegations appeared insufficient to state a federal civil rights claim against any named defendant. Further, it did not appear to the Court that subject matter jurisdiction existed for any of the claims that plaintiff appeared to be raising. Accordingly, the FAC was dismissed with leave to amend. (ECF No. 12).

Plaintiff filed a Second Amended Complaint on August 3, 2017. (ECF No. 14). Then, on August 21, 2017, plaintiff filed a Request seeking leave to file another amended complaint. (ECF No. 15). The Court granted plaintiff's request (ECF No. 16), and plaintiff filed a Third Amended Complaint ("TAC") on September 18, 2017 (ECF No. 17). In the TAC, plaintiff again names as defendants two companies, Andes Group - New Day Baby Powder ("Andes Group") and Keefe Commissary Network Sales ("Keefe"), with headquarters in other states. (ECF No. 17 at 3). Plaintiff also names as defendants the "L.A. Mens Central Jail - Medical," the "L.A. County Mens Central Jail" (collectively "Jail"), and the "U.S.C. Medical Center" hospital. (Id. at 3-4). Plaintiff's pleading is interspersed with medical records from the Los Angeles County Sheriff's Department. (Id. at 9-15, 18-19). Plaintiff purports to raise a claim pursuant to the Consumer Product Safety Act ("CPSA") against the Andes Group and Keefe. (Id. at 5-6). Plaintiff also appears to raise claims for inadequate medical care against the other defendants. (Id. at 7, 16, 20). Plaintiff seeks damages. (Id. at 22). Once again, the Court has screened the TAC prior to ordering service for the purpose of determining whether the action is frivolous or malicious; or fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.

The Court's screening of the pleading under the foregoing statutes is governed by the following standards. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Further, with respect to a plaintiff's pleading burden, the Supreme Court has held that: "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. ... Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (To avoid dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (internal citation omitted)); Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) ("To survive a motion to dismiss for failure to state a claim, the plaintiff must allege 'enough facts to state a claim to relief that is plausible on its face.'" (citing Twombly, 550 U.S. at 570)). Since plaintiff is appearing pro se, the Court must construe the allegations of the pleading liberally and must afford plaintiff the benefit of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Finally, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the "tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678; see also Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) ("a court discounts conclusory statements, which are not entitled to the presumption of truth, before determining whether a claim is plausible").

After careful review of the TAC under the foregoing standards, the Court finds that plaintiff's allegations remain insufficient to state a federal civil rights claim against any named defendant.Because plaintiff is an inmate proceeding pro se, the Court will provide plaintiff with one final opportunity to amend his pleading to correct the deficiencies set forth below. Accordingly, the TAC is dismissed with leave to amend. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding that a pro se litigant must be given leave to amend his complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment).

If plaintiff desires to pursue this action, he is ORDERED to file a Fourth Amended Complaint no later than October 30, 2017, remedying the deficiencies discussed below. Further, plaintiff is admonished that, if he fails to timely file a Fourth Amended Complaint or fails to remedy the deficiencies of this pleading as discussed herein, the Court will recommend that the action be dismissed without further leave to amend but without prejudice for lack of subject matter jurisdiction.¹

DISCUSSION

A. PLAINTIFF'S TAC FAILS TO STATE A SHORT AND PLAIN STATEMENT IN COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 8.

Plaintiff's TAC fails to comply with Federal Rule of Civil Procedure 8(a) and 8(d). Fed. R. Civ. P. 8(a) states:

A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(Emphasis added). Rule 8(d)(1) provides: "Each allegation must be simple, concise, and direct. No technical form is required." (Emphasis added). Although the Court must construe a pro se plaintiff's pleadings liberally, a plaintiff nonetheless must allege a minimum factual and legal basis for each claim that is sufficient to give each defendant fair notice of what plaintiff's claims are and the grounds upon which they rest. See, e.g., Brazil v. United States Department of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants fair notice of the claims against them). If a plaintiff fails to clearly and concisely set forth allegations sufficient to provide defendants with notice of which defendant is being sued on which theory and what relief is being sought against them, the complaint fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). A claim has "substantive plausibility" if a plaintiff alleges "simply, concisely, and directly [the] events" that entitle him to damages. Johnson v. City of Shelby, 135 S. Ct. 346, 347, 190 L. Ed. 2d 309 (2014) (per curiam). Moreover, failure to comply with Rule 8 constitutes an independent basis for dismissal of a complaint that applies even if the claims in a complaint are not found to be wholly without merit. See McHenry, 84 F.3d at 1179; Nevijel, 651 F.2d at 673.

First, it is not clear to the Court what the legal basis is for any of plaintiff's claims. The body of the TAC includes five pages each with a "Claim I," which appear to raise five claims. Although plaintiff appears to raise only one claim each against defendants Andes Group and Keefe under the CPSA (see ECF No. 11 at 5-6), on the pages of the TAC listing defenda...