Travis Charles Brown v. City of Long Beach et al

Filing 5

MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: IT IS HEREBY ORDERED that Plaintiffs Complaint is dismissed with leave to amend. The First Amended Complaint should bear the docket number assigned in this case, be labeled First Amend ed Complaint and be complete in and of itself without reference to the original Complaint or any other pleading, attachment or document. Plaintiff may not add new Defendants. Plaintiff is admonished that if he fails to timely file a First Amended Complaint within 30 days of the date of this Memorandum and Order, the Court will recommend that this action be dismissed with prejudice on the grounds set forth above for failure to diligently prosecute. (rh)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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TRAVIS CHARLES BROWN,
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Plaintiff,
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v.
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CITY OF LONG BEACH, et al.,
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Defendants.
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No. CV 15-02613-RGK (VBK)
MEMORANDUM AND ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

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PROCEEDINGS

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On April 8, 2015, Travis Charles Brown (hereinafter referred to

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as “Plaintiff”) filed a civil rights complaint pursuant to 42 U.S.C.

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§ 1983. Plaintiff named the following Defendants: City of Long Beach;

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Long Beach Police Department; County of Los Angeles (all of the above

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in their official capacities) (Complaint at 3.1); Long Beach Police

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Officer Bernard Barajas; Long Beach Police Officer Lorenzo Uribe;

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Police Officer Association Attorney Jim Trott; Long Beach Police Lt.

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L. Cox; Long Beach Police Commander D. Wood; Long Beach Police Sgt. E.

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Herzog; Long Beach Police Department Peer Officer R. Solorio; Long

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Docket.

The Court will refer to the pagination used in the CM/ECF

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Beach Police Department Peer Officer H. Vong, all in their individual

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capacities. (Id. at 4-5.)

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On June 19, 2014, Plaintiff alleges that Defendants Uribe and

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Barajas were working patrol in an unmarked vehicle. Plaintiff is a

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student at Long Beach City Community College. (Id. at 6.) Plaintiff

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alleges Defendants Uribe and Barajas engaged in the practice of

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racially profiling African-American males. (Id.) Plaintiff alleges

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Defendants Uribe and Barajas detained Plaintiff, with their service

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weapons drawn, in violation of the Fourth Amendment. Plaintiff alleges

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he provided Defendants with his identification and then became nervous

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as Defendants used “racial slurs.” Plaintiff then ran towards his

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classroom for safety. (Id.)

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Plaintiff alleges that he was “shot in the buttocks” by Defendant

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Uribe and the bullet cannot be removed or else Plaintiff could end up

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permanently disabled. (Id. at 7.) To cover up the criminal acts

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committed by Defendant Officers Uribe and Barajas, Plaintiff alleges

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the remaining Defendants filed false charges against him and refused

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to provide discovery establishing Defendant Officers Uribe and Barajas

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violated clearly established law. Plaintiff alleges he has been in

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unlawful confinement for approximately nine months based upon false

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charges from the June 19, 2014 incident. (Id.)

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Plaintiff alleges that Defendant Jim Trott is the Police Officers

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Association attorney assigned to investigate the shooting and insure

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that Defendant Officers Uribe and Barajas complied with departmental

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policy. Plaintiff alleges Defendant Trott has failed to turn over his

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findings after Plaintiff moved for discovery in his pending criminal

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case. Plaintiff alleges Defendants Lt. Cox, Commander R. Wood and Sgt.

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Herzog investigated the shooting and have failed to turn over their
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reports. Plaintiff alleges that Defendant R. Solorio was assigned as

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Defendant Barajas’ peer officer and has failed to turn over any

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reports. Plaintiff alleges that Defendant H. Vong was assigned as

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Defendant Uribe’s peer officer and has also failed to turn over any

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reports or findings. (Id.)

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Plaintiff alleges that he has not had a preliminary hearing in

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his

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withholding relevant discovery. (Id. at 8.)

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pending

criminal

case

due

to

the

Defendants’

actions

by

Plaintiff alleges the following causes of action: (1) false

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arrest

and

false

imprisonment;

(2)

malicious

prosecution;

(3)

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Fourteenth Amendment procedural due process violations; (4) excessive

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force; and (5) racial profiling. (Id. at 6.)

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STANDARD OF REVIEW

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Because Plaintiff is seeking to proceed in forma pauperis, the

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Court shall review such a complaint “as soon as practicable after

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docketing.”

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required to dismiss a complaint if the Court finds that the complaint

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(1) is legally frivolous or malicious, (2) fails to state a claim upon

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which relief may be granted, or (3) seeks monetary relief from a

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defendant immune from such relief.

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in forma pauperis complaints).

Pursuant to 28 U.S.C. §1915(e)(2), the District Court is

28 U.S.C. §1915(e)(2)(B) (re: all

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“To survive a motion to dismiss, a complaint must contain

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sufficient factual matter, accepted as true, to ‘state the claim to

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relief that is plausible on its face.’”

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662 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007)).

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factual content that allows the Court to draw the reasonable inference

Ashcroft v. Iqbal, 556 U.S.

“A claim has facial plausibility when the plaintiff pleads

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that the defendant is liable for the misconduct alleged.”

Iqbal, 556

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U.S. at 678.(citing Twombly, 550 U.S. at 556.)

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standard is not akin to a ‘probability requirement,’ but it asks for

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more than a sheer possibility that a defendant acted unlawfully.”

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(Id.)

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allegations,’ ... [a] pleading that offers ‘labels and conclusions’ or

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‘a formulaic recitation of the elements of the cause of action will

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not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555.)

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The Complaint must contain “factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the

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misconduct alleged.”

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pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged - but it has not

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‘show[n]’ - ‘that the pleader is entitled to relief.’” (Id. at 679

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[quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted). “[A] well-

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pled complaint may proceed even if it appears that a recovery is very

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remote and unlikely.”

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Rhodes, 416 U.S. 232, 236 (1974)).

“The plausibility

Although a complaint need not include “‘detailed factual

Iqbal, 556 U.S. at 678. “[W]here the well-

Twombly, 550 U.S. at 556 (quoting Scheuer v.

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In civil rights cases in which the Plaintiff appears pro se, the

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pleadings must be construed liberally, so as to afford the plaintiff

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the benefit of any doubt as to the potential validity of the claims

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asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623

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(9th Cir. 1988).

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finds that the complaint should be dismissed for failure to state a

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claim, the Court has the discretion to dismiss the complaint with or

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without leave to amend.

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Cir. 2000).

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it is clear that the deficiencies of the complaint cannot be cured by

If, despite such liberal construction, the Court

Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th

A pro se litigant should be given leave to amend, unless

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amendment. Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 F.3d

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1103, 1106 (9th Cir. 1995); Noll v. Carlson, 809 F.2d 1446, 1448 (9th

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Cir. 1987).

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DISCUSSION

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For all of the following reasons, the Complaint should be
dismissed with leave to amend.

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A.

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Section 1983 Requirements.

In order to state a claim under section 1983, a plaintiff must

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allege that:

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at the time the complained of acts were committed; and (2) the

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defendants’ conduct deprived plaintiff of rights, privileges, or

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immunities secured by the Constitution or laws of the United States.

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West v. Atkins, 487 U.S. 42 (1988); Haygood v. Younger, 769 F.2d 1350,

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1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986).

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Liability under section 1983 is predicated upon an affirmative link or

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connection

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deprivations. See Rizzo v. Goode, 423 U.S. 362, 372-73 (1976); May v.

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Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d

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740, 743 (9th Cir. 1978). That the defendant act under color of state

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law

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Similarly,

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constitutional violations must show that the "actions complained of

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are 'fairly attributable' to the government." Morse v. North Coast

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Opportunities, Inc., 118 F.3d 1338, 1340 (9th Cir. 1997).

is

"a

(1) the defendants were acting under color of state law

between

the

defendants'

jurisdictional
a

plaintiff

requisite

basing

a

actions

for
cause

a

and

§1983

of

the

claimed

action."

action

on

(Id.)

alleged

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Liability may be imposed on an individual defendant under § 1983

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only if the plaintiff can show that the defendant proximately caused
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the deprivations of his federally protected rights of which he

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complains.

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v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981).

Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris

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B.

Plaintiff’s Claims for False Arrest, False Imprisonment and

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Malicious Prosecution are Barred By Heck v. Humphrey.

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Plaintiff alleges a violation of his Fourth Amendment right to be

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free from false imprisonment and false arrest. Plaintiff also alleges

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malicious prosecution.

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Under Heck v. Humphrey, 512 U.S. 477 (1994), a § 1983 claim that

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would call into question the lawfulness of a plaintiff’s conviction or

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confinement is not cognizable, and therefor does not accrue, until and

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unless the plaintiff can prove that his conviction or sentence has

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been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such a determination,

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or called into question by a federal court’s issuance of a writ of

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habeas corpus. Heck, 512 U.S. at 446-87. Accordingly, when a plaintiff

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files a § 1983 action, the Court must consider whether “a judgment in

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favor of the plaintiff would necessarily imply the invalidity of his

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conviction or sentence; if it would, the complaint must be dismissed

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unless the plaintiff can demonstrate that the conviction or sentence

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has already been invalidated. (Id. at 487.)

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The Heck bar applies to false arrest claims. See Cabrera v. City

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of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998)(“To prevail on

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his 1983 claims for false arrest and imprisonment, [plaintiff] would

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have to demonstrate that there was no probable cause to arrest him ...

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[F]inding that there was no probable

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that [plaintiff’s] conviction for disturbing the peace was invalid.
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cause would ‘necessarily imply’

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Therefore, under Heck [plaintiff’s] false arrest and imprisonment

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claims [are] not cognizable.”); see also Frost v. City and County of

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San Francisco, 2006 WL 2325286 (N.D. Cal. June 8, 2006); Guerrero v.

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Gates, 442 F.3d 697, 703 (9th Cir.2006)(concluding that Heck barred

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plaintiff’s civil rights claims alleging wrongful arrest, malicious

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prosecution and conspiracy among police officers to bring false

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charges against him); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.

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1996)(holding

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alleging that defendants lacked probable cause to arrest him and

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brought unfounded criminal charges against him). Heck prevents a

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plaintiff from bringing a claim that, even if it does not directly

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challenge the conviction, would imply that the conviction was invalid.

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Here, Plaintiff alleges that he was falsely arrested and has been

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falsely imprisoned and malicious prosecution. Plaintiff is currently

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awaiting trial; thus a § 1983 action for false arrest and false

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imprisonment upon which criminal charges are based, is barred by Heck

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until the criminal charges have been dismissed or the conviction has

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been overturned.

that

Heck

barred

Plaintiff’s

civil

rights

claims

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C.

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Plaintiff Has Failed to Establish a Monell Violation Against
Defendant City of Long Beach.

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Plaintiff’s claims against Defendants City of Long Beach and the

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Long

Beach

Police

Department

fail

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demonstrated liability pursuant to Monell v. Dept. of Social Services,

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436 U.S. 658, 694 (1978). For a municipality to be liable for

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violation of constitutional rights pursuant to 42 U.S.C. § 1983,

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plaintiff must establish that the municipality had a deliberate

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policy, custom, or practice that was the “moving force” behind the
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because

Plaintiff

has

not

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constitutional violation he suffered. Galen v. City of Los Angeles,

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477 F.3d 652, 667 (9th Cir.2007), citing Monell, 436 U.S. at 694-95;

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see also Oviatt v. Pierce, 945 F.2d 1470, 1474 (9th Cir. 1992).

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local government entity cannot be held liable simply because it

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employs someone who has acted unlawfully.

A

Monell, 435 U.S. at 694.

Plaintiff must demonstrate that Defendants acted with deliberate

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indifference to Plaintiff's constitutional rights.

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v. Harris, 489 U.S. 378, 389-91 (1989) the Supreme Court held that a

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municipality may be liable if it fails to properly train peace

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officers and the “failure to train amounts to deliberate indifference

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to the rights of persons with whom the [officers] come into contact.”

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In other words, there must be a direct causal link between a municipal

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policy or custom and the alleged constitutional deprivation.

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385.

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“deliberate or conscious choice” by a local government can the local

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government be liable under § 1983. Id. at 389. Further, the plaintiff

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must demonstrate that the alleged deficiency in supervision and

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training actually caused the requisite indifference. Id. at 391. The

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appropriate inquiry is therefore whether the injury would have been

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avoided “had the employee been trained under a program that was not

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deficient in the identified respect.” (Id.)

Only

where

a

failure

to

supervise

and

In City of Canton

train

Id. at

reflects

a

Here, Plaintiff’s Complaint alleges that Defendants City of Long

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Beach

and

the

Long

Beach

Police

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Defendants’ actions pursuant to a “conspiracy to violate rights,

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failure to train, supervise and implement sufficient procedures to

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protect rights.” (Id. at 3, 8.) Plaintiff’s allegations are entirely

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conclusory. Further, Plaintiff fails to sufficiently allege a specific

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custom or policy of action or inaction of Defendants that caused the
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Department

are

responsible

for

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alleged constitutional violation.

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ORDER

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For all of the foregoing reasons, IT IS HEREBY ORDERED that

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Plaintiff’s Complaint is dismissed with leave to amend. The First

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Amended Complaint should bear the docket number assigned in this case,

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be labeled “First Amended Complaint” and be complete in and of itself

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without reference to the original Complaint or any other pleading,

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attachment

or

document.

Plaintiff

may

not

add

new

Defendants.

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Plaintiff is admonished that if he fails to timely file a First

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Amended Complaint within 30 days of the date of this Memorandum and

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Order, the Court will recommend that this action be dismissed with

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prejudice on the grounds set forth above for failure to diligently

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prosecute.

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DATED:

June 11, 2015

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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