Isaac Jose Rodriguez v. Derrick Carter et al

Filing 21

ORDER DISMISSING SECOND AMENDED COMPLAINT 17 WITH LEAVE TO AMEND by Magistrate Judge Alexander F. MacKinnon. Third Amended Complaint due 5/8/17. (See documents for details). (Attachments: # 1 Form CV-9) (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ISAAC JOSE RODRIGUEZ, 12 Plaintiff, 13 v. 14 15 Case No. CV 16-04521 JFW (AFM) DERRICK CARTER, et al., ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND Defendants. 16 17 18 On June 22, 2016, plaintiff filed a Complaint in this pro se civil rights action 19 pursuant to 42 U.S.C. § 1983. He subsequently was granted leave to proceed 20 in forma pauperis. The Complaint named as defendants Derrick Carter and Daniel 21 Morris, both police officers with the City of Pasadena Police Department, Phillip 22 Sanchez, the Chief of Police for the City of Pasadena Police Department, and the 23 City of Pasadena. (ECF No. 1 at 2-3.)1 Plaintiff’s claims appeared to arise from an 24 arrest that occurred on October 26, 2013. (Id. at 3.) 25 In accordance with the terms of the “Prison Litigation Reform Act of 1995,” 26 the Court screened the Complaint prior to ordering service for purposes of 27 28 1 The Court references the electronic version of the pleadings. 1 determining whether the action is frivolous or malicious; or fails to state a claim on 2 which relief may be granted; or seeks monetary relief against a defendant who is 3 immune from such relief. See 28 U.S.C. § 1915(e)(2); see, e.g., Shirley v. Univ. of 4 Idaho, 800 F.3d 1193 (9th Cir. 2015) (citing 28 U.S.C. § 1915(e)(2)(B) and noting 5 that a “district court shall screen and dismiss an action filed by a plaintiff 6 proceeding in forma pauperis”); Lopez v. Smith, 203 F.3d 1122, 1127 n.7 (9th Cir. 7 2000) (noting “section 1915(e) applies to all in forma pauperis complaints” and 8 directing “district courts to dismiss a complaint that fails to state a claim upon 9 which relief may be granted”) (en banc). 10 Following careful review of the Complaint, the Court found that its 11 allegations appeared insufficient to state any claim upon which relief may be 12 granted. Accordingly, on October 26, 2016, the Complaint was dismissed with 13 leave to amend, and plaintiff was ordered, if he wished to pursue the action, to file a 14 First Amended Complaint no later than November 30, 2016. Further, plaintiff was 15 admonished that, if he failed to timely file a First Amended Complaint, or failed to 16 remedy the deficiencies of his pleading, the Court would recommend that this 17 action be dismissed without leave to amend and with prejudice. (ECF No. 9.) 18 On November 30, 2016, plaintiff filed a First Amended Complaint (“FAC”). 19 The FAC named as defendants Officers Derrick Carter and Daniel Morris and the 20 City of Pasadena. (ECF No. 11 at 2-3.) After careful review of the FAC, the Court 21 once again found that plaintiff’s allegations appeared insufficient to state any claim 22 on which relief may be granted. Accordingly, the FAC was dismissed with leave to 23 amend. Further, plaintiff was admonished that, if he failed to timely file a Second 24 Amended Complaint, or failed to remedy the deficiencies of his pleading, the Court 25 would recommend that this action be dismissed without leave to amend and with 26 prejudice. (ECF No. 15.) 27 On February 9, 2107, plaintiff filed a Second Amended Complaint (“SAC”) 28 (ECF No. 17) accompanied by plaintiff’s supporting declaration (“Declaration”) 2 1 (ECF No. 18). The Declaration appears to set forth the same or extremely similar 2 facts concerning plaintiff’s arrest on October 26, 2103, as those that are alleged in 3 the SAC. The SAC seeks monetary damages and unspecified injunctive relief for 4 “plaintiffs [sic] and others who are similarly situated.” (ECF No. 17 at 10-11.) The 5 SAC names as defendants the City of Pasadena Police Department, and Officers 6 Carter and Morris. (Id. at 2-3.) 7 Once again, in accordance with the mandate of the PLRA, the Court has 8 screened the SAC prior to ordering service for purposes of determining whether the 9 action is frivolous or malicious; or fails to state a claim on which relief may be 10 granted; or seeks monetary relief against a defendant who is immune from such 11 relief. 12 governed by the following standards. A complaint may be dismissed as a matter of 13 law for failure to state a claim for two reasons: (1) lack of a cognizable legal 14 theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. 15 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also Rosati v. 16 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (when determining whether a 17 complaint should be dismissed for failure to state a claim under 28 U.S.C. 18 § 1915(e)(2), the court applies the same standard as applied in a motion to dismiss 19 pursuant to Rule 12(b)(6)). In determining whether the pleading states a claim on 20 which relief may be granted, its allegations of material fact must be taken as true 21 and construed in the light most favorable to plaintiff. See Love v. United States, 22 915 F.2d 1242, 1245 (9th Cir. 1989). However, the “tenet that a court must accept 23 as true all of the allegations contained in a complaint is inapplicable to legal 24 conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court’s screening of the pleading under the foregoing statute is 25 In addition, since plaintiff is appearing pro se, the Court must construe the 26 allegations of the pleading liberally and must afford plaintiff the benefit of any 27 doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the 28 Supreme Court has held that, “a plaintiff’s obligation to provide the ‘grounds’ of 3 1 his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a 2 formulaic recitation of the elements of a cause of action will not do. . . . Factual 3 allegations must be enough to raise a right to relief above the speculative level . . . 4 on the assumption that all the allegations in the complaint are true (even if doubtful 5 in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 6 citations omitted, alteration in original); see also Iqbal, 556 U.S. at 678 (To avoid 7 dismissal for failure to state a claim, “a complaint must contain sufficient factual 8 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ . . . 9 A claim has facial plausibility when the plaintiff pleads factual content that allows 10 the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” (internal citation omitted)); Starr v. Baca, 652 F.3d 1202, 12 1216 (9th Cir. 2011) (“the factual allegations that are taken as true must plausibly 13 suggest an entitlement to relief, such that it is not unfair to require the opposing 14 party to be subjected to the expense of discovery and continued litigation”). 15 After careful review and consideration of the SAC under the foregoing 16 standards, the Court again finds that plaintiff’s allegations appear insufficient to 17 state any claim on which relief may be granted. Because plaintiff is proceeding 18 pro se in this civil rights action, the Court will provide one final opportunity to 19 allow plaintiff to attempt to cure the deficiencies set forth below by amendment. 20 Accordingly, the SAC is dismissed with leave to amend. See Rosati, 791 F.3d at 21 1039 (“A district court should not dismiss a pro se complaint without leave to 22 amend unless it is absolutely clear that the deficiencies of the complaint could not 23 be cured by amendment.”) (internal quotation marks omitted). 24 If plaintiff still desires to pursue this action, he is ORDERED to file a 25 Third Amended Complaint no later than May 8, 2017, remedying the 26 deficiencies discussed below. Further, plaintiff is admonished that, if he fails to 27 timely file a Second Amended Complaint, or fails to remedy the deficiencies of this 28 4 1 pleading as discussed herein, the Court will recommend that this action be 2 dismissed without leave to amend and with prejudice.2 3 DISCUSSION 4 5 A. To the extent that plaintiff’s claims implicate the validity of a prior 6 conviction, the claims are barred by Heck. 7 A petition for habeas corpus is a prisoner’s sole judicial remedy when 8 attacking “the validity of the fact or length of . . . confinement.” Preiser v. 9 Rodriguez, 411 U.S. 475, 489-90 (1973); Young v. Kenny, 907 F.2d 874, 875 (9th 10 Cir. 1990). Thus, plaintiff may not use a civil rights action to challenge the validity 11 of a conviction or incarceration. Such relief only is available in a habeas corpus 12 action. In addition, to the extent that a plaintiff is attempting to use a civil rights 13 action to seek monetary damages for an allegedly unlawful conviction where 14 success would necessarily implicate the fact or duration of his conviction, his 15 claims are not cognizable under § 1983 unless and until plaintiff can show that “the 16 conviction or sentence has been reversed on direct appeal, expunged by executive 17 order, declared invalid by a state tribunal authorized to make such determination, or 18 called into question by a federal court’s issuance of a writ of habeas corpus.” Heck 19 v. Humphrey, 512 U.S. 477, 486-87 (1994). Under Heck, if a judgment in favor of 20 21 22 23 24 25 26 27 28 2 Plaintiff is advised that this Court’s determination herein that the allegations in the Second Amended Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, although this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not required to omit any claim or defendant in order to pursue this action. However, if you decide to pursue a claim in a Third Amended Complaint that this Court has found to be insufficient, then this Court, pursuant to the provisions of 28 U.S.C. § 636, ultimately will submit to the assigned district judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as provided in the Local Rules governing duties and functions of Magistrate Judges. L. Civ. R. 72. 5 1 a plaintiff on a civil rights action necessarily will imply the invalidity of his or her 2 conviction or sentence, the complaint must be dismissed unless the plaintiff can 3 demonstrate that the conviction or sentence already has been invalidated. Id.; see 4 also Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Where the prisoner’s claim 5 would not ‘necessarily spell speedier release,’ however, suit may be brought under 6 § 1983.”). Accordingly, “Heck prohibits the use of § 1983 to attack the validity of a 7 conviction, because a recovery in the damages action would necessarily imply that 8 the conviction was wrongfully obtained.” Furnace v. Giurbino, 838 F.3d 1019, 9 1027 (9th Cir. 2016).3 10 Here, plaintiff continues to seek monetary damages arising, in part, from an 11 “unlawful stop and detention” (ECF No. 17 at 4); an allegedly “unreasonable search 12 and seizure” (id.); an arrest in “retaliation because he was exercising his rights to 13 remain silent and asking why he is [sic] being stopped” (id. at 5); and “false 14 imprisonment” (id. at 6). Plaintiff alleges that he was arrested by defendants 15 Officer Carter and Officer Morris on October 26, 2013, and that he was 16 subsequently charged with a violation of Cal. Penal Code § 148(a) for “delaying a 17 police officer.” (Id. at 1, 3.) Plaintiff alleges that criminal proceedings took place 18 on April 1, 2014, that plaintiff was represented by a public defender, and that he has 19 “filed many motions and writ’s [sic] to the Superior Court arguing that his public 20 counsel who represented him was insufficient of counsel [sic] to the plaintiff.” (Id. 21 22 23 24 25 26 27 28 3 The Ninth Circuit has held that, in rare cases where a plaintiff has no habeas remedy available through no fault of his own, Heck may not bar him from raising a claim attacking his conviction pursuant to § 1983. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1191-92 & n.12 (9th Cir. 2015) (noting that “‘timely pursuit of available habeas relief’ is an important prerequisite for a § 1983 plaintiff seeking” to raise an otherwise barred claim and finding that plaintiff’s failure to seek to invalidate his conviction through state appeals barred his federal § 1983 suit); Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002) (finding plaintiff was not barred from raising a civil rights claim challenging a disciplinary proceeding because he had been released from prison and a habeas petition would be moot). In this case, plaintiff does not allege that he sought to invalidate any conviction through the state appeal process or that no habeas relief was available to him. 6 1 2 3 4 5 6 at 4.) As in the FAC, plaintiff’s SAC sets forth no factual allegations concerning the outcome of this criminal case. In the SAC, the only federal civil rights claims that plaintiff purports to raise against the individual defendants are for an “unlawful stop and detention” (id. at 4), retaliatory arrest in violation of the First Amendment (id. at 5), “false imprisonment” (id. at 6), and “unreasonable search” (id.). All of these federal claims arise from plaintiff’s arrest on October 26, 2013. 7 8 9 10 11 12 13 14 15 16 However, the Court notes that plaintiff’s Complaint included a factual allegation that is not set forth in his SAC. November 17, 2013, plaintiff “entered a plea of no contest to the court of [sic] all counts of the complaint.” (ECF No.1 at 4.) As the Court previously has advised plaintiff, under California law, a plea of “no contest” or “nolo contendere” has the same legal effect as a plea of guilty. See Cal. Penal Code § 1016(3). Therefore, to the extent that plaintiff entered a plea of “no contest” to charges arising from the arrest on October 26, 2013, plaintiff must show that this conviction has been invalidated or overturned before he may proceed with any civil rights claims that necessarily would demonstrate the invalidity of this conviction. 17 18 19 20 21 22 23 According to the Complaint, on Accordingly, because success on the federal civil rights claims alleged in the SAC may demonstrate the invalidity of any conviction that resulted from plaintiff’s arrest on October 26, 2013, plaintiff may not raise such claims unless and until he can allege that the charges were dropped, or that any resulting conviction “has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. 24 25 B. Plaintiff’s allegations are insufficient to state a claim against the City of 26 Pasadena or the Pasadena Police Department. 27 To the extent that plaintiff is purporting to hold the City of Pasadena liable 28 on a theory of failing to adequately train its police officers (see ECF No. 17 at 9), 7 1 the Supreme Court in Monell v. New York City Dep’t of Social Servs., 436 U.S. 2 658, 694 (1978), held that a local government entity “may not be sued under § 1983 3 for an injury inflicted solely by its employees or agents. 4 execution of a government’s policy or custom, whether made by its lawmakers or 5 by those whose edicts or acts may fairly be said to represent official policy, inflicts 6 the injury that the government as an entity is responsible under § 1983.” Monell, 7 436 U.S. at 694; see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (“local 8 governments are responsible only for their own illegal acts”). Here, the SAC once 9 again fails to set forth any allegations that any specific policy or custom of the City 10 of Pasadena was the “actionable cause” of a specific constitutional violation. See 11 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (“Under Monell, a 12 plaintiff must also show that the policy at issue was the ‘actionable cause’ of the 13 constitutional violation, which requires showing both but for and proximate 14 causation.”). Rather, the SAC merely sets forth the conclusory allegation that the 15 “failure to provide proper training was the cause of the deprivation of plaintiffs [sic] 16 right of unreasonable search and seizure.” (ECF No. 17 at 10.) Such conclusory 17 allegations are not entitled to a presumption of truth in determining whether 18 plaintiff’s SAC alleges any claim that is plausible. See Chavez v. United States, 19 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts conclusory statements, 20 which are not entitled to the presumption of truth, before determining whether a 21 claim is plausible”). Instead, it is when 22 Further, a local government entity, such as the City of Pasadena, may be held 23 liable for a failure to train its employees only if “the failure to train amounts to 24 deliberate indifference to the rights of persons” impacted by the inaction. City of 25 Canton v. Harris, 489 U.S. 378, 388 (1989). In order to state a claim for failure to 26 train, plaintiff must allege that “in light of the duties assigned to specific officers or 27 employees the need for more or different training is so obvious, and the inadequacy 28 so likely to result in the violation of constitutional rights, that the policymakers of 8 1 the city can reasonably be said to have been deliberately indifferent to the need.” 2 City of Canton, 489 U.S. at 390. 3 “[d]eliberate indifference is a stringent standard of fault, requiring proof that a 4 municipal actor disregarded a known or obvious consequence of his action.” 5 Connick, 563 U.S. at 61 (internal quotation marks omitted). “Thus, when [a local 6 entity’s] policymakers are on actual or constructive notice that a particular omission 7 in their training program causes [the entity’s] employees to violate citizens’ 8 constitutional rights, the [entity] may be deemed deliberately indifferent if the 9 policymakers choose to retain that program.” Id. Further, “to demonstrate that the 10 [entity] was on notice of a constitutionally significant gap in its training, it is 11 ‘ordinarily necessary’ for a plaintiff to demonstrate a ‘pattern of similar 12 constitutional violations by untrained employees.’” Kirkpatrick v. Cnty. of Washoe, 13 843 F.3d 784, 794 (9th Cir. 2016) (quoting Connick, 563 U.S. at 62). The Supreme Court has emphasized that 14 Plaintiff’s SAC sets forth factual allegations concerning only one arrest. 15 Allegations of one incident involving two allegedly inadequately trained 16 individuals do not raise an inference that inadequate training caused the alleged 17 constitutional violation of which plaintiff complains. See, e.g., Marsh v. County of 18 San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (allegations of an isolated instance 19 of a constitutional violation are insufficient to support a “failure to train” theory). 20 Accordingly, the Court finds that the SAC fails to set forth any factual 21 allegations plausibly suggesting that a lack of training or the execution of a specific 22 policy, regulation, custom, or the like was the “actionable cause” of his alleged 23 constitutional violations. See Tsao, 698 F.3d at 1146. 24 25 C. Plaintiff’s allegations fail to state a claim for injunctive relief. 26 The SAC seeks injunctive relief against the defendants, the Pasadena Police 27 Department and two of its officers, on behalf of unspecified “plaintiffs” and “others 28 who are similarly situated.” (ECF No. 17 at 10.) As a pro se litigant, plaintiff does 9 1 not have standing to vicariously assert the constitutional claims of others. See 2 Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); United States v. 3 Mitchell, 915 F.2d 521, 526 n.8 (9th Cir. 1990) (pro se litigant does not have 4 standing to raise the claims of other persons whose rights may have been violated). 5 Further, plaintiff’s claims all arise from one arrest by the police officers. The 6 SAC fails to set forth any factual allegations that give rise to a reasonable inference 7 that plaintiff will again be subject to arrest by these officers, or by other Pasadena 8 Police Department officers under similar circumstances. 9 pertain to a single, past, incident of harm are insufficient to support a claim for 10 injunctive relief. Rather, in order to state a claim for prospective injunctive relief, a 11 plaintiff must demonstrate that a credible threat exists that he will again be 12 subjected to the specific injury for which relief is sought. See City of Los Angeles 13 v. Lyons, 461 U.S. 95, 111 (1983). “[P]ast exposure to harm is largely irrelevant 14 when analyzing claims of standing for injunctive relief that are predicated upon 15 threats of future harm.” Nelson v. King County, 895 F.2d 1248, 1251 (9th Cir. 16 1990) (citing O’Shea v. Littleton, 414 U.S. 488, 491 (1974)). 17 Allegations that only ************ 18 If plaintiff still desires to pursue this action, he is ORDERED to file a 19 Third Amended Complaint no later than May 8, 2017, remedying the pleading 20 deficiencies discussed above. The Third Amended Complaint should bear the 21 docket number assigned in this case; be labeled “Third Amended Complaint”; and 22 be complete in and of itself without reference to the original complaint or any other 23 pleading, attachment, declaration, or document. 24 The clerk is directed to send plaintiff a blank Central District civil rights 25 complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished 26 that, if he desires to pursue this action, he must sign and date the civil rights 27 complaint form, and he must use the space provided in the form to set forth all of 28 the claims that he wishes to assert in a Third Amended Complaint. 10 1 Plaintiff is further admonished that, if he fails to timely file a Third 2 Amended Complaint, or fails to remedy the deficiencies of his pleading as 3 discussed herein, the Court will recommend that the action be dismissed with 4 prejudice on the grounds set forth above and for failure to diligently prosecute. 5 In addition, if plaintiff no longer wishes to pursue this action, he may request 6 a voluntary dismissal of the action pursuant to Federal Rule of Civil Procedure 7 41(a). The clerk also is directed to attach a Notice of Dismissal form for plaintiff’s 8 convenience. 9 IT IS SO ORDERED. 10 11 DATED: April 6, 2017 12 13 14 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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