Williams v. Andes Grp. New Day Baby Powder

• Decision Date: 27 June 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

June 27, 2017

ORDER DISMISSING FIRST 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 Court recommended that the Request be 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"), the operative pleading herein. (ECF No. 11). In the FAC, plaintiff names as defendants private companies headquartered in Dallas, Texas, and in St. Louis, Missouri. (Id. at 3). He also names "medical" at the Los Angeles Central Jail ("Jail") (id.), and the USC Medical Center (id. at 4). No individuals appear to be named as defendants.

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

In accordance with the mandate of the Prison Litigation Reform Act of 1995 ("PLRA"), the Court has 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.

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, 1964-65, 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 isappearing 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.

After careful review of the FAC under the foregoing standards, the Court finds that plaintiff's allegations appear insufficient to state a claim against any named defendant. Further, it does not appear to the Court that subject matter jurisdiction exists for any of the claims that plaintiff appears to be raising. Accordingly, the FAC 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 Second Amended Complaint no later than July 24, 2017, remedying the deficiencies discussed below. Further, plaintiff is admonished that, if he fails to timely file a Second 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 FAC FAILS TO STATE A SHORT AND PLAIN STATEMENT IN COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 8.

Plaintiff's FAC 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). 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, or the number of claims that plaintiff is purporting to raise against each defendant. The body of the FAC includes three pages each with a "Claim I," that appear to raise three claims, and he appears to raise only the first claim against defendants Andes Group - New Day Baby Powder ("AndesGroup") and Keefe Commissary Network Sales ("Keefe"). (See ECF No. 11 at 5). However, on the page of the FAC listing defendants, plaintiff appears to list three separate claims against Andes Group: for "product liability," "violation of health care," and "violation of notice and disclosure law." (ECF No. 11 at 3). In his "Claim I," plaintiff alleges a claim for "product liability - Consumer Protection Act" against Andes Group and Keefe. (Id. at 5). Plaintiff claims that he "filed suit against defendants for injuries that allegedly were caused by this [sic] talc product" (id.), but it is not clear to the Court if plaintiff is referencing a previously filed lawsuit, or if plaintiff is purporting to raise a claim in this action for injuries arising from the New Day Baby Powder. Further, plaintiff's reference to the "Consumer Protection Act" is an ambiguous phrase that does not appear to pertain to any federal statute or to state a claim arising under federal law.

To the extent that plaintiff may be intending to allege a claim for product liability against defendants Andes Group and Keefe, such a claim arises under state, not federal, law. See, e.g., Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1193 (9th Cir. 2007) ("We apply state law to a products liability claim brought in federal district court pursuant to diversity jurisdiction."). To the extent that plaintiff may be intending to allege a claim arising under the Consumer Product Safety Act ("CPSA"), which is codified in 15 U.S.C. §§ 2051-2083, a private cause of action is allowed under that act only if a plaintiff alleges that an injury was caused by a defendant's knowing violation of a consumer product safety rule or other order issued by the Consumer Product Safety Commission ("CPSC"). See 15 U.S.C. §§ 2053, 2072(a). In order to state any such claim, plaintiff must first identify a consumer product safety rule or order issued by the CPSC because "there is no private right of action under the CPSA itself absent a specific rule promulgated by the CPSC." See In re Mattel, Inc., 588 F. Supp. 2d 1111, 1117-18 (C.D. Cal. 2008) (citing In re All Terrain Vehicle Litig., 979 F.2d 755, 756-57 (...