Kasey Graham v. Mr. Orozco

Filing 5

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Judge R. Gary Klausner. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted 30 days from the date of this Order within which to file a First Amended Complaint. (sp)

-E Kasey Graham v. Mr. Orozco

Doc. 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges that the Defendants violated Plaintiff's rights under the Fourth and Eighth Amendments, allegedly by filing false charges against Plaintiff and subjecting Plaintiff to malicious On June 30, 2010, Plaintiff, a detainee at the Metropolitan Detention Center, filed this pro se civil rights case pursuant to 42 U.S.C. section 1983. Defendants are five Los Angeles police For the reasons discussed below, the Complaint is dismissed with leave to amend. See 28 U.S.C. § 1915(e)(2)(B). KASEY GRAHAM, ) NO. CV 10-4618-RGK(E) ) Plaintiff, ) ) v. ) MEMORANDUM AND ORDER DISMISSING ) MR. OROZCO (LAPD), et al., ) COMPLAINT WITH LEAVE TO AMEND ) Defendants. ) ) ______________________________) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

officers, sued in their individual and official capacities.

Dockets.Justia.com

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prosecution.1

Plaintiff alleges that, on May 15, 2009, a Los Angeles

County Superior Court judge issued a search warrant containing allegedly false statements, specifically, statements concerning incidents that assertedly occurred after the court issued the warrant (Complaint, p. 5). Plaintiff alleges that he did not commit any

crimes justifying his arrest or the issuance of a warrant (id.). Plaintiff further alleges that, on July 14, 2009, the Superior Court issued another search warrant containing allegedly false information. Plaintiff asserts that the allegedly false charges have caused Plaintiff to suffer "severe emotional distress and loss of enjoyment of life," as well as psychological suffering affecting Plaintiff's "physical stability and health concerns" (id.; attachment, p. 1). Plaintiff seeks damages, an investigation and interview by "Federal Internal Affairs," and "[n]egotiations" between the United States Attorney and Plaintiff or his counsel in the criminal case.2

The official capacity claims against the individual Defendants must be construed as claims against the City of Los Angeles. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). See

Plaintiffs may not

sue the City or any municipal entity on a theory of respondeat superior, which is not a theory of liability cognizable under 42 U.S.C. section 1983. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

(2009); Polk County v. Dodson, 454 U.S. 312, 325 (1981); Gibson v.

Plaintiff's claims appear to relate to Plaintiff's pending criminal prosecution in this Court in United States of America v. Kasey Robert Graham, CR 09-1084-PSG. The prayer of the Complaint mentions an "attached" motion for appointment of counsel. However, no such motion is attached to the Complaint. 2
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County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003). A municipal entity may be held liable

only if the alleged wrongdoing was committed pursuant to a municipal policy, custom or usage. See Board of County Commissioners of Bryan

County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978); see also Gibson v. County of Washoe, Nev., 290 F.3d at 1185-87 (describing "two routes" to municipal liability, where municipality's official policy, regulation or decision violated plaintiff's rights, or alternatively where municipality failed to act under circumstances showing its deliberate indifference to plaintiff's rights). Plaintiff

must allege facts, not conclusions, to support his official capacity claims. See Ashcroft v. Iqbal, 129 S. Ct. at 1949. The Complaint

contains no allegations supporting Plaintiff's official capacity claims.

To the extent Plaintiff seeks damages for emotional distress, Plaintiff has not alleged any specific physical injuries resulting from the challenged actions as required to support a claim for mental or emotional injury suffered while in custody. See 42 U.S.C.

§ 1997e(e) ("No Federal Civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."); 42 U.S.C. § 1997e(h) (defining "prisoner" to include any person "detained in any facility who is accused of . . . violations of criminal law"). Section 1997e(e) requires a showing of

more than a de minimis physical injury in order to recover damages for emotional distress. Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 3

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2002). Plaintiff's conclusory allegations that Defendants' actions purportedly affected Plaintiff's "physical stability and health concerns" do not suffice. See Ashcroft v. Iqbal, 129 S. Ct. at 1949;

see also Jackson, Jr. v. Monterey County Jail, 2008 WL 269472, at *4 (N.D. Cal. 2008) (conclusory allegations of physical injury are insufficient).

To the extent Plaintiff seeks a federal "investigation" into Plaintiff's allegations of police misconduct or an order compelling the "US Attorney" to conduct "negotiations" with the defense in Plaintiff's pending criminal case, the Complaint is insufficient. "In

our criminal justice system, the Government retains `broad discretion' as to whom to prosecute." (1985). Wayte v. United States, 470 U.S. 598, 607

"[A] private citizen lacks a judicially cognizable interest Linda R. S. v.

in the prosecution or nonprosecution of another." Richard D., 410 U.S. 614, 619 (1973).

ORDER

The Complaint is dismissed with leave to amend.

If Plaintiff

still wishes to pursue this action, he is granted thirty (30) days from the date of this Order within which to file a First Amended Complaint. The First Amended Complaint shall be complete in itself. Plaintiff

It shall not refer in any manner to any prior complaint.

shall not attempt to add additional parties without leave of Court. See Fed. R. Civ. P. 21. Failure to file timely a First Amended

Complaint in conformity with this Memorandum and Order may result in the dismissal of this action. See Simon v. Value Behavioral Health, 4

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Inc., 208 F.3d 1073, 1084 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), cert. denied, 531 U.S. 1104 (2001), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.), cert. denied, 128 S. Ct. 464 (2007) (affirming dismissal without leave to amend where plaintiff failed to correct deficiencies in complaint, where court had afforded plaintiff opportunities to do so, and where court had given plaintiff notice of the substantive problems with his claims).

IT IS SO ORDERED.

DATED: July 7, 2010.

____________________________________ R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE

PRESENTED this 2nd day of July, 2010, by _____________/S/______________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

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