Carlo A Carrion v. Michelle Thomas et al

Filing 10

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Carla Woehrle. It is therefore ORDERED as follows: 1. The Complaint is dismissed with leave to amend. 2. On or before March 22, 2013, Plaintiff may file a "Fir st Amended Complaint" which corrects the defects. 3. If Plaintiff files an amended complaint, the court will issue further orders as appropriate; if not, the magistrate judge will recommend that this action be dismissed, without prejudice, for failure to prosecute and/or failure to comply with court orders, as well as for the reasons stated above. [SEE ORDER FOR FURTHER DETAILS] (gr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CARLO A. CARRION,

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Plaintiff,
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v.
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MICHELLE THOMAS, et al.,
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Defendants.
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______________________________)

No. CV 13-507-VAP(CW)
MEMORANDUM AND ORDER
DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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The pro se plaintiff is seeking to proceed in forma pauperis on a

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civil rights complaint.

His complaint was lodged on January 23, 2013,

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and was filed on January 30, 2013 (as docket no. 5), pursuant to the

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court’s Order re Leave to File Action Without Prepayment of Full

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Filing Fee (docket no. 4).

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is dismissed with leave to amend.1

For reasons discussed below, the complaint

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Plaintiff’s previous requests to file the same or a similar
complaint without prepayment of the filing fee were denied in Carrion
v. County of Los Angeles, CV 09-5781-UA, and Carrion v. Los Angeles
County, CV 10-5197-UA.
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I.

STANDARD OF REVIEW

Complaints such as Plaintiff’s are subject to the court’s sua

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sponte review under provisions of the Prison Litigation Reform Act of

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1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996).

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U.S.C. § 1915A(a).

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time, if the court finds that it (1) is frivolous or malicious, (2)

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fails to state a claim on which relief may be granted, or (3) seeks

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monetary relief from a defendant immune from such relief.

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v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc); 28

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See 28

The court shall dismiss such a complaint, at any

See Lopez

U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints).
PLRA review for failure to state a claim applies the same

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standard applied in reviewing a motion to dismiss for failure to state

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a claim under Fed. R. Civ. P. 12(b)(6).

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F.3d 1193, 1194 (9th Cir. 1998).

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for failure to state a claim tests the legal sufficiency of a claim

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for relief.

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deciding such a motion, all material allegations of the complaint are

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accepted as true, as well as all reasonable inferences to be drawn

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from them.”

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‘lack of a cognizable legal theory’ or ‘the absence of sufficient

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facts alleged under a cognizable legal theory.’”

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Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990)).

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claim if it discloses a fact or defense that necessarily defeats the

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claim.

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(citing 2A Moore’s Federal Practice ¶ 12.08).

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See Barren v. Harrington, 152

A Rule 12(b)(6) motion to dismiss

Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

Id.

“In

“A Rule 12(b)(6) dismissal may be based on either a

Johnson v. Riverside

A complaint may also be dismissed for failure to state a

Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984)

Possible failure to state a claim is reviewed under the pleading
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standard of Fed. R. Civ. P. 8(a)(2), which requires a “short and plain

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statement of the claim showing that the pleader is entitled to

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relief.”

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173 L. Ed. 2d 868 (2009)(“Iqbal”).

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not require detailed factual allegations,” but does require more than

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merely “labels and conclusions or a formulaic recitation of the

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elements of a cause of action.”

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internal quotation marks omitted).

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sufficient factual matter, accepted as true, to state a claim to

Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937,
The Rule 8 pleading standard “does

Iqbal, 556 U.S. at 678 (citations and
Instead, “a complaint must contain

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relief that is plausible on its face.”

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quotation marks omitted).

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plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct

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alleged.”

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requirement, but does ask for more than mere possibility.

Id.

Id. (citations and internal

“A claim has facial plausibility when the

This plausibility standard is not a probability
Id.

In Iqbal, the Supreme Court applied a two-pronged approach to

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reviewing possible failure to state a claim.

Id. at 678-81.

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the reviewing court may identify statements in a complaint that are

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actually conclusions, rather than factual allegations, and, as such,

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are not entitled to a presumption of truth.

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statements’ conclusory nature, rather than any fanciful or nonsensical

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nature, “that disentitles them to the presumption of truth.”

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681.

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pleaded factual allegations,” and determines whether these allegations

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and reasonable inferences from them plausibly support a claim for

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relief.

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Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012); Hydrick v. Hunter,

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669 F.3d 937, 940-41 (9th Cir. 2012)(discussing Iqbal and Starr).

Id. at 678-79.

First,

It is the

Id. at

Second, the court presumes the truth of any remaining “well-

Id. at 679-80; see also Starr v. Baca, 652 F.3d 1202 (9th

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If the court finds that a complaint should be dismissed for

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failure to state a claim, the court may dismiss with or without leave

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to amend.

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granted if it appears that defects can be corrected, especially if the

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plaintiff is pro se.

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70 F.3d 1103, 1106 (9th Cir. 1995).

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it is clear that a complaint cannot be cured by amendment, the court

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may dismiss without leave to amend.

Leave to amend should be

Id. at 1130-31; see also Cato v. United States,

II.

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Lopez, 203 F.3d at 1126-30.

If, after careful consideration,

Cato, 70 F.3d at 1107-11.

PLAINTIFF’S CLAIMS

Plaintiff has submitted a 176 page complaint, with supplemental

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material, naming over twenty defendants and asserting scores of legal

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claims.

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statement of the underlying facts from Plaintiff’s complaint, but the

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factual basis for his claims appears to be that he was arrested in an

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incident that occurred on August 6, 2004, and, after lengthy

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proceedings (apparently) ultimately entered a guilty plea, which he

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later sought unsuccessfully to withdraw.

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defendants the County of Los Angeles, various county agencies, judges,

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prosecutors, public defenders and police officers.

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civil rights claims, state tort claims, and a series of claims citing

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federal and state criminal statutes.

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of his state conviction, and an official investigation of his case.

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It is almost impossible to derive a clear and simple

III.

Plaintiff names as

He asserts federal

He seeks damages, the reversal

GROUNDS FOR DISMISSAL

The complaint contains multiple defects, and is subject to
dismissal on several grounds.
First, Plaintiff has failed to provide the “short and plain

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statement” of his claim required under Fed. R. Civ. P. 8(a)(2).

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Plaintiff seeks to proceed in this action he must include in his
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If

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complaint a simple and straightforward statement of his factual

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allegations (apart from his legal claims or arguments), so that the

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court can clearly see what exactly Plaintiff alleges happened.

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Without this, the court cannot even begin to apply the standard of

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Ashcroft v. Iqbal to determine whether Plaintiff’s factual allegations

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plausibly support his legal conclusions.

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clear statement of facts, certain other fundamental defects in

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Plaintiff’s complaint are evident, as discussed below.

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However, even without a

Second, Plaintiff attempts to sue certain defendants who are

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immune from suit.

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of judges who were involved in his superior court case.

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judges are absolutely immune from suit for acts performed in a

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judicial capacity.

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429, 435 & n.10, 113 S. Ct. 2167, 124 L. Ed. 2d 391 (1993); Mireles v.

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Waco, 502 U.S. 9, 9, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991)(per

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curiam); Stump v. Sparkman, 435 U.S. 349, 357-60, 98 S. Ct. 1099, 55

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L. Ed. 2d 331 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.

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1986)(en banc).

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accused of acting in bad faith, maliciously, corruptly, erroneously,

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or in excess of jurisdiction.

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also appears to have named several prosecutors as defendants.

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However, prosecutors are entitled to absolute immunity from civil

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rights suits for damages based on their activities as legal advocates

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on behalf of the state in criminal proceedings.

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Fitzsimmons, 509 U.S. 259, 272-73, 113 S. Ct. 2606, 2615, 125 L. Ed.

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2d 209 (1993); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct.

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984, 995, 47 L. Ed. 2d 128 (1976).

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Thus, Plaintiff has named as defendants, a number
However,

See Antoine v. Byers & Anderson, Inc., 508 U.S.

Judicial immunity bars suit even if a judge is

Mireles, 502 U.S. at 11-13.

Plaintiff

See Buckley v.

Third, Plaintiff asserts claims under a number of federal and
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state criminal statutes, such as the California Penal Code and Title

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18 of the United States Code.

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government may prosecute defendants; they are not civil laws under

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which private plaintiffs may sue for damages.

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These are criminal laws under which the

Fourth, Plaintiff asserts federal civil rights claims against

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persons who are not proper defendants on such claims.

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federal civil rights claim under 42 U.S.C. § 1983, a plaintiff must

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plead that a defendant, acting under color of state law, deprived the

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plaintiff of a right secured by the federal constitution or laws.

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See, e.g., Ortez v. Washington County, 88 F.3d 804, 810 (9th Cir.

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1996).

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defendants, but public defenders are not considered persons “acting

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under color of law” for purposes of a § 1983 claim.

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v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981)

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(public defender does not act under color of state law when performing

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lawyer’s traditional functions as counsel to defendant in criminal

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proceeding).

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To assert a

Plaintiff has named a number of public defenders as

See Polk County

Fifth, Plaintiff seeks to invalidate his (apparently) outstanding

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state court conviction.

However, insofar as Plaintiff’s claims, if

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true, would necessarily imply the invalidity of his outstanding

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conviction, he cannot bring a civil rights action unless and until he

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first invalidates the conviction on appeal, through a habeas action,

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or otherwise.

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2364, 129 L. Ed. 2d 383 (1994).

See Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct.

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Despite these defects, Plaintiff may be able to amend his

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complaint in order to state claims not barred by the above defects,

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such as a claim that police officers subjected him to excessive force

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in arresting him.

In light of the liberal policies governing
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amendment of pro se pleadings, Plaintiff will be given an opportunity

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to amend the complaint in order to state a cognizable claim against a

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proper defendant.

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IV.

ORDERS:

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It is therefore ORDERED as follows:

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1.

The Complaint is dismissed with leave to amend.

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2.

On or before March 22, 2013, Plaintiff may file a “First

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Amended Complaint” which corrects the defects discussed above and

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complies with the following requirements:

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(a)

“CV 13-507-VAP(CW).”

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(b)

It must be complete in itself and may not incorporate by
reference any part of any prior complaint.

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The “First Amended Complaint” must bear the present case number

(c)

Plaintiff may not use “et al.” in the caption on page one, but

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must name each defendant against whom claims are stated in the

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First Amended Complaint.

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sure that defendants are correctly listed on the docket.)

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(d)

(The clerk uses the caption to make

Plaintiff may not add new parties without the court’s permission.
3.

If Plaintiff files an amended complaint, the court will

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issue further orders as appropriate; if not, the magistrate judge will

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recommend that this action be dismissed, without prejudice, for

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failure to prosecute and/or failure to comply with court orders, as

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well as for the reasons stated above.

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4.

The clerk shall serve this Memorandum and Order on

Plaintiff.
5.

The court again advises Plaintiff to consider seeking

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assistance from the Federal “Pro Se” Clinic in this district.

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Clinic offers on-site information and guidance to individuals who are
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The

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representing themselves in federal civil actions.

The Clinic is

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administered by a non-profit law firm, Public Counsel, not by the

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court.

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N. Spring Street, Room 525, 5th Floor, Los Angeles, CA 90012.

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Clinic’s regular hours are Mondays, Wednesdays, and Fridays, 9:30 a.m.

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– 12:00 p.m., and 2:00 p.m. - 4:00 p.m.

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also available on the Clinic’s website at www.cacd.uscourts.gov/ProSe.

The Clinic is located in the United States Courthouse, at 312
The

Much useful information is

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DATE:

February 20, 2013

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CARLA M. WOEHRLE
United States Magistrate Judge

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