Norris DaJon Miller v. George Morris

Filing 6

MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT, 1 WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. 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 Memorandum and Order within which to file a First Amended Complaint. (Attachments: # 1 Civil Rights Packet, # 2 Dismissal Form) (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NORRIS DAJON MILLER,
Plaintiff,

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MEMORANDUM DECISION AND ORDER

v.

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Case No. CV 17-2966 SJO (SS)

DISMISSING COMPLAINT WITH LEAVE

GEORGE MORRIS,

TO AMEND
Defendant.

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I.

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INTRODUCTION

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On

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April

19,

2017,

Norris

Dajon

Miller

(“Plaintiff”),

a

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California state prisoner proceeding pro se, filed a civil rights

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complaint pursuant 42 U.S.C. § 1983 (“Complaint”).

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summarily alleges that Deputy District Attorney George Morris is

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liable

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violation of his Sixth and Fourteenth Amendment rights.

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6) (continuous pagination).

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for

malicious

prosecution

and

false

Plaintiff

imprisonment

in

(Id. at

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Congress mandates that district courts perform an initial

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screening of complaints in civil actions where a prisoner seeks

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redress

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§ 1915A(a). This Court may dismiss such a complaint, or any portion

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thereof,

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frivolous or malicious, (2) fails to state a claim upon which

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relief can be granted, or (3) seeks monetary relief from a defendant

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who is immune from such relief.

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also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000)

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(en banc). For the reasons stated below, the Complaint is DISMISSED

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with leave to amend.1

from

a

before

governmental

service

of

entity

process

or

if

employee.

the

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complaint

U.S.C.

(1)

is

28 U.S.C. § 1915A(b)(1-2); see

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II.

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ALLEGATIONS OF THE COMPLAINT

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The only Defendant sued in this matter is Deputy District

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Attorney

Morris.

(Complaint

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individual capacity only.

at

4).

Morris

is

sued

in

his

(Id. at 3).

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Plaintiff states that in an underlying state criminal matter,

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he was assaulted by a man named Thomas Brown and “was put in jail

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for it” on February 10, 2016, even though Plaintiff was acting in

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self-defense.

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a crime (or crimes) he did not commit, which Plaintiff does not

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specifically identify.

(Id. at 4).

Morris “falsely accused” Plaintiff of

(Id.).

On June 20, 2016, Morris dismissed

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A magistrate judge may dismiss a complaint with leave to amend
without the approval of a district judge. See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
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the charge(s) against Plaintiff.

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was “falsely imprisoned” for four months and ten days as a result

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of those charges, i.e., from the day he was arrested to the day

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the charges were dismissed.

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in monetary damages for “emotional stress, heartache, [and] pain

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and suffering,” as well as “false imprisonment.”2

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(Id.).

(Id.).

Plaintiff states that he

Plaintiff seeks $63,000,000

(Id. at 5).

In another malicious prosecution action brought by Plaintiff in
this Court, filed on the same day as the instant Complaint,
Plaintiff raised similar claims against another prosecutor, Deputy
District Attorney Lily Keenan.
See Miller v. Keenan, C.D. Cal.
Case No. 17-2969 SJO (SS) (the “Keenan Complaint”).
The Court
takes judicial notice of Plaintiff’s other cases pending in this
Court. See In re Korean Air Lines Co., Ltd., 642 F.3d 685, 689
n.1 (9th Cir. 2011) (a court may take judicial notice of a court’s
own records in other cases and the records of other courts).
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It is unclear whether the state court criminal proceedings at issue
in the instant action and the Keenan Complaint are related,
identical, or entirely separate. However, in the Keenan Complaint,
as here, Plaintiff alleges that he was arrested on February 10,
2016 and held continuously in custody thereafter.
(See Keenan
Complaint, Dkt. No. 1, at 4). According to the Keenan Complaint,
a jury ultimately convicted Plaintiff of three counts of assault
(against victims Thomas Sotiriadis, Karen Sotiriadis, and Michael
Haynes) and one count of resisting an executive officer (City of
Hawthorne Police Officer John Dixon).
The same jury acquitted
Plaintiff of one count of attempting to rob Haynes and of one count
of resisting City of Hawthorne Police Officer Sean Judd. (Id. at
10-11).
Plaintiff is suing Keenan in that parallel action for “falsely
accus[ing] [him] of crimes that [he] did not commit,” i.e., the
two counts that resulted in acquittals. (Id. at 3). Plaintiff
further claims that he was wrongfully held in jail pending trial
on those counts for four months and nineteen days, from February
10, 2016 to June 29, 2016. (Id. at 5).
The Court cannot determine from the meager facts alleged in these
two actions whether Brown’s alleged assault on Plaintiff occurred
during the same incident in which Plaintiff assaulted Thomas and
Karen Sotiriadis and Hayes. However, the period of incarceration
at issue in this action is entirely encompassed by the period of
incarceration at issue in the Keenan Complaint.
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1

III.

2

DISCUSSION

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Under

28

U.S.C.

§

1915A(b),

the

Court

must

dismiss

the

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Complaint due to pleading defects.

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a pro se litigant leave to amend his defective complaint unless

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“it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.”

Akhtar v. Mesa, 698 F.3d 1202,

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1212

and

(9th

Cir.

2012)

(citation

However, the Court must grant

internal

quotation

marks

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omitted).

For the reasons discussed below, it is not “absolutely

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clear” that at least some of the defects of Plaintiff’s Complaint

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could not be cured by amendment.

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DISMISSED with leave to amend.

The Complaint is therefore

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A.

The Complaint Fails To State A Claim For Malicious Prosecution

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A claim of malicious prosecution is generally not cognizable

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under

section

1983

if

process

is

available

within

the

state

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judicial system to provide a remedy.

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693 F.3d 896, 919 (9th Cir. 2012).

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common law tort of malicious prosecution, although such claims are

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“disfavored.”

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state a claim for malicious prosecution under California law, “a

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plaintiff must demonstrate that the prior action (1) was initiated

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by or at the direction of the defendant and legally terminated in

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the plaintiff’s favor, (2) was brought without probable cause, and

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(3) was initiated with malice.”

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4th 735, 740 (2007).

Lacey v. Maricopa Cnty.,

California law recognizes the

Zamos v. Stroud, 32 Cal. 4th 958, 966 (2004).

To

Seibel v. Mittlesteadt, 41 Cal.

Malicious prosecution is also actionable
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under state law where the defendant “continu[es] to prosecute a

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lawsuit discovered to lack probable cause.”

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970.

Zamos, 32 Cal. 4th at

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Nonetheless, the Ninth Circuit has determined that a civil

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rights

plaintiff

may

bring

a

federal

claim

for

malicious

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prosecution under section 1983 when certain conditions are met.

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state a federal claim for malicious prosecution, a plaintiff must

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establish not only that a claim, brought without probable cause

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and initiated with malice, terminated in plaintiff’s favor, but

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also that the prosecution was conducted “for the purpose of denying

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[the accused] equal protection or another specific constitutional

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right.’”

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Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)).

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actions “are not limited to suits against prosecutors but may

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[also] be brought . . . against other persons who have wrongfully

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caused the charges to be filed.”

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F.3d 1062, 1066 (9th Cir. 2004).

To

Lacey, 693 F.3d at 919 (quoting Freeman v. City of Santa
Malicious prosecution

Awabdy v. City of Adelanto, 368

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However,

not

every

action

taken

by

a

prosecutor

in

an

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abandoned or unsuccessful prosecution will subject the prosecutor

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to suit, even when the act is “malicious or dishonest.”

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v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005).

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“[p]rosecutorial immunity applies to § 1983 claims.”

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Cnty. of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016).

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to that doctrine, “[s]tate prosecutors are absolutely immune from

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§ 1983 actions when performing functions ‘intimately associated

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with the judicial phase of the criminal process,’ [Imbler v.
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Genzler

The doctrine of
Garmon v.
Pursuant

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Pachtman, 424 U.S. 409, 430 (1976)], or, phrased differently, ‘when

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performing the traditional functions of an advocate.’”

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828 F.3d at 843 (quoting Kalina v. Fletcher, 522 U.S. 118, 131

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(1997)).

Garmon,

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Accordingly, a prosecutor is absolutely immune from suit for

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“‘initiating a prosecution’ and ‘presenting a state’s case,’ and

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during ‘professional evaluation of the evidence assembled by the

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police and appropriate preparation for its presentation at trial

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. . . after a decision to seek an indictment has been made.’”

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Garmon, 828 F.3d at 843 (quoting Buckley v. Fitzsimmons, 509 U.S.

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259, 273 (1993)); see also Milstein v. Cooley, 257 F.3d 1004, 1012

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(9th Cir. 2001) (“Initiating a prosecution has consistently been

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identified

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advocate.”); Mishler v. Clift, 191 F.3d 998, 1008 (9th Cir. 1999)

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(“Filing charges and initiating prosecution are functions that are

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integral to a prosecutor’s work.”).

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by absolute immunity in the “preparation of an arrest warrant,”

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during “appearances before a grand jury,” “in a probable cause

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hearing,” and at trial.

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see also Milstein, 257 F.3d at 1012 (“Appearing in court to argue

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a motion is a quintessential act of advocacy.”).

as

a

function

within

a

prosecutor’s

role

as

an

A prosecutor is also protected

Lacey, 693 F.3d at 933 (citing cases);

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Absolute immunity applies even if it “‘leave[s] the genuinely

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wronged defendant without civil redress against a prosecutor whose

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malicious or dishonest action deprives him of liberty.’”

Genzler,

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410 F.3d at 637 (quoting Imbler, 424 U.S. at 432).

However,

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prosecutors are entitled only to “qualified immunity, rather than
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absolute immunity, when they perform administrative functions, or

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‘investigative functions normally performed by a detective or

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police officer.’”

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U.S. at 126).3

Genzler, 410 F.3d at 636 (quoting Kalina, 522

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Courts look to the “nature of the function performed” when

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determining if a prosecutor’s actions are those of an advocate,

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which are protected by absolute immunity, or of an administrator

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or investigator, which are not.

Garmon, 828 F.3d at 843 (quoting

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Buckley, 509 U.S. at 269).

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promote, transfer and terminate” employees, “which do not affect

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the prosecutor’s role in any particular matter,” are generally

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deemed administrative functions not protected by absolute immunity.

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Lacey, 693 F.3d at 931.

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apply when a prosecutor ‘gives advice to police during a criminal

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investigation,’ ‘makes statements to the press,’ or ‘acts as a

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complaining

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application.’”

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Goldstein, 555 U.S. 335, 343 (2009) (brackets in original; emphasis

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added)); see also Milstein, 257 F.3d at 1101 (filing a false crime

witness

For example, “decisions to hire,

Similarly, “[a]bsolute immunity does not

in

support

of

a[n

arrest]

warrant

Garmon, 828 F.3d at 843 (quoting Van de Kamp v.

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“The doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’”
Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). In analyzing whether qualified immunity
applies, a court must determine “whether, taken in the light most
favorable to [the plaintiff], Defendants’ conduct amounted to a
constitutional violation, and . . . whether or not the right was
clearly established at the time of the violation.” Bull v. City
and Cnty. of San Francisco, 595 F.3d 964, 971 (9th Cir. 2010)
(internal quotation marks omitted; brackets in original).
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report is not protected by absolute immunity).

Absolute immunity

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also does not apply if a prosecutor knowingly fabricates evidence

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by soliciting falsehoods from others, such as by obtaining false

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statements from purported witnesses or “shopping for a dubious

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expert opinion.”

Id.

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Here, Plaintiff’s only allegation against Morris is that he

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“falsely accused” him of a crime or crimes he did not commit.

It

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is unclear from the Complaint what role Morris had in Plaintiff’s

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prosecution, or what he did in the performance of that role.

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Complaint does not explain how Morris falsely accused Plaintiff,

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or when, or whether Plaintiff would have been entitled to release

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from custody if Morris had dismissed the charges earlier.

For

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example,

was

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arrested pursuant to a warrant that Morris may have prepared, when

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or how he was charged, whether Morris was the only prosecutor who

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appeared in his case, or whether Morris had a more limited role.

the

Complaint

does

not

state

whether

Plaintiff

The

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Depending

on

the

“nature”

of

the

acts

Morris

allegedly

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committed, Morris may or may not be protected by absolute immunity.

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For example, it is possible that Plaintiff believes that Morris

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“falsely accused” him simply by filing charges against him to

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initiate the underlying criminal action.

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actions

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prosecutorial

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Plaintiff may have grounds to assert a claim against Morris that

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would not be subject to absolute immunity.

would

appear

to

immunity.

be

If so, such “judicial”

protected

However,

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8

it

from
is

suit

also

by

absolute

possible

that

1

Additionally, even if Plaintiff were able to allege facts that

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would support a malicious prosecution claim against Morris that

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would not be barred by absolute immunity, the Complaint does not

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allege any facts showing that the prosecution was for the purpose

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of denying Plaintiff equal protection or some other constitutional

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right, as required for a federal malicious prosecution claim under

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§ 1983.

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dismissed, with leave to amend.

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may not allege claims for which he has no factual or legal basis.

Lacey, 693 F.3d at 919.

Accordingly, the Complaint is
Plaintiff is cautioned that he

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B.

The Complaint Fails To State A Claim For False Imprisonment

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In his request for relief, Plaintiff seeks monetary damages

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from Morris for “false imprisonment,” although he does not explain

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why or how he believes that Morris is liable for his pretrial

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detention.

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whether Morris is protected by absolute immunity for his acts will

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depend

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Plaintiff’s pre-trial detention here fully overlapped with his

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detention on charges for which he was eventually convicted in the

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Keenan matter, it seems doubtful that Plaintiff will be able to

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show that he suffered any damages by his pre-trial incarceration.

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Even if Plaintiff had not been detained on the counts that Morris

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dismissed, he would still have been lawfully incarcerated pre-trial

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on the four counts for which he was ultimately convicted in the

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Keenan matter.

on

As

the

with

nature

Plaintiff’s

of

those

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9

malicious

acts.

prosecution

Furthermore,

claim,

because

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“False arrest and false imprisonment overlap; the former is a

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species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007).

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“To prevail on his § 1983 claim for false arrest and imprisonment,

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[Plaintiff] would have to demonstrate that there was no probable

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cause to arrest him.”

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374, 380 (9th Cir. 1998).

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[also] has ‘a constitutional right to be free from continued

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detention after it was or should have been known that the detainee

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was entitled to release.’”

Cabrera v. City of Huntington Park, 159 F.3d
Following arrest, “a [pretrial] detainee

Lee v. City of Los Angeles, 250 F.3d

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668, 683 (9th Cir. 2001) (internal quotation marks and citation

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omitted).

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[pretrial] incarceration ‘after the lapse of a certain amount of

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time’ gives rise to a [false imprisonment] claim under the Due

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Process Clause of the Fourteenth Amendment.”

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(quoting Baker, 443 U.S. at 145).

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does not guarantee that only the guilty will be arrested.

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did, § 1983 would provide a cause of action for every defendant

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acquitted -- indeed, for every suspect released,” which it does

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not.

The “loss of liberty caused by an individual’s mistaken

Lee, 250 F.3d at 683

However, “[t]he Constitution
If it

Baker v. McCollan, 443 U.S. 137, 145 (1979).

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Plaintiff’s false imprisonment claim against Morris, to the

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extent that he is attempting to assert one, is largely intertwined

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with his malicious prosecution claim, as is the extent of Morris’s

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entitlement to absolute prosecutorial immunity.

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the false imprisonment claim is simply that Morris filed criminal

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charges

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charging

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absolute immunity.

in

reliance

decision

on

would

evidence
appear

provided

to

be

by

If the basis for

the

protected

police,

from

suit

the
by

However, if Plaintiff is able to allege facts
10

1

showing, for example, that Morris knowingly fabricated or solicited

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false evidence to keep Plaintiff in custody prior to trial, and

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that but for that fabrication, there was no other impediment to

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Plaintiff’s entitlement to release from pre-trial custody, it is

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possible that such acts may not be protected by absolute immunity.

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In light of the convictions arising from the actions at issue in

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the Keenan Complaint, and the fact that the pre-trial period of

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which Plaintiff complains here is entirely encompassed by the

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period at issue in the Keenan Complaint, the Court doubts that

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Plaintiff will be able to assert a false imprisonment claim.

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However,

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dismissed, with leave to amend.

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may not allege claims for which he has no factual or legal basis.

out

of

an

abundance

of

caution,

the

Complaint

is

Plaintiff is cautioned that he

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IV.

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CONCLUSION

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For the reasons stated above, the Complaint is dismissed with

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leave to amend.

If Plaintiff still wishes to pursue this action,

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he is granted thirty (30) days from the date of this Memorandum

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and Order within which to file a First Amended Complaint.

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amended complaint, the Plaintiff shall cure the defects described

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above.

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allegations that are not reasonably related to the claims asserted

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in the original complaint.

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shall be complete in itself and shall bear both the designation

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“First Amended Complaint” and the case number assigned to this

Plaintiff

shall

not

include

new

defendants

In any

or

new

The First Amended Complaint, if any,

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action.

It shall not refer in any manner to any previously filed

2

complaint in this matter.

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In

any

amended

complaint,

Plaintiff

should

confine

his

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allegations to those operative facts supporting each of his claims.

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Plaintiff

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Procedure 8(a), all that is required is a “short and plain statement

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of the claim showing that the pleader is entitled to relief.”

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Plaintiff is strongly encouraged to utilize the standard civil

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rights complaint form when filing any amended complaint, a copy of

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which is attached.

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identify the nature of each separate legal claim and make clear

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what specific factual allegations support each of his separate

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claims.

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concise and to omit irrelevant details.

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Plaintiff to cite case law, include legal argument, or attach

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exhibits at this stage of the litigation. Plaintiff is also advised

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to omit any claims for which he lacks a sufficient factual basis.

is

advised

that

pursuant

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Rule

of

Civil

Plaintiff is strongly encouraged to keep his statements

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Federal

In any amended complaint, Plaintiff should

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It is not necessary for

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Plaintiff is explicitly cautioned that failure to timely file

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a First Amended Complaint or failure to correct the deficiencies

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described above, will result in a recommendation that this action

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be dismissed with prejudices for failure to prosecute and obey

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court orders pursuant to Federal Rule of Civil Procedure 41(b).

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Plaintiff is further advised that is he no longer wishes to pursue

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this action,

he may

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Dismissal

in

accordance

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41(a)(1).

A form Notice of Dismissal is attached for Plaintiff’s

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voluntarily dismiss it by filing a Notice of
with

Federal

Rule

of

Civil

Procedure

convenience.

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DATED:

July 24, 2017
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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