Christopher De Vonne Ray Sr v. R Warner et al

Filing 9

MEMORANDUM AND ORDER Dismissing Complaint With Leave to Amend by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

September 14, 2015

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Plaintiff w/form

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9/14/15

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISON

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CHRISTOPHER DE VONNE RAY
SR,

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MEMORANDUM AND ORDER
DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Plaintiff,

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No. SA CV 15-01242-JLS (DFM)

v.
R. WARNER et al..,
Defendant.

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I.

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INTRODUCTION

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On August 5, 2015, Plaintiff lodged a pro se civil rights complaint under

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42 U.S.C. § 1983 together with a request to proceed in forma pauperis. Dkt. 1

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(“Complaint”). On August 6, 2015, the Court granted Plaintiff’s request to

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proceed in forma pauperis. Dkt. 8. The Complaint names Fullerton Police

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Department Officer R. Warner as the sole Defendant. Complaint at 2.

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In accordance with 28 U.S.C. § 1915(e)(2), the Court must screen the
Complaint for purposes of determining whether the action is frivolous or

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malicious; or fails to state a claim on which relief might be granted; or seeks

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monetary relief against a defendant who is immune from such relief.

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II.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS

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On September 16, 2014, Warner pulled Plaintiff over for a traffic

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violation. Id. Warner told Plaintiff that he pulled him over because Plaintiff

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drove on the wrong side of the street. Id. No other motorist made a complaint

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about Plaintiff’s driving. Id. Plaintiff did not like Warner’s demeanor so he

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asked Warner to get a supervisor. Id. Warner called for backup then dragged

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Plaintiff out of his car and threw him to the ground. Id. At least 5 officers and

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eventually 10-12 officers responded. Id. Plaintiff had a heart attack from the

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force of the officers’ weight. Id. Plaintiff cried for help. Id. The officers rushed

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Plaintiff to the hospital where he was handcuffed. Id. Officer Kirk questioned

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him continuously. Id. After the doctor said Plaintiff had a heart attack, Officer

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Kirk left the room and returned with Warner and an electronic ticket that they

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asked Plaintiff to sign. Id. at 3.

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III.

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STANDARD OF REVIEW

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The Court’s screening of the Complaint is governed by the following

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standards. A complaint may be dismissed as a matter of law for failure to state

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a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient

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facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990). In determining whether the complaint states

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a claim on which relief may be granted, its allegations of material fact must be

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taken as true and construed in the light most favorable to Plaintiff. See Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Further, since Plaintiff is

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appearing pro se, the Court must construe the allegations of the complaint

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liberally and must afford Plaintiff the benefit of any doubt. See Karim-Panahi
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v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the

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liberal pleading standard . . . applies only to a plaintiff’s factual allegations.”

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Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of

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a civil rights complaint may not supply essential elements of the claim that

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were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

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1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th

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Cir. 1982)). Moreover, with respect to Plaintiff’s pleading burden, the Supreme

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Court has held that “a plaintiff’s obligation to provide the ‘grounds’ of his

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‘entitlement to relief’ requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the

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speculative level . . . on the assumption that all the allegations in the complaint

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are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (internal citations omitted, alteration in original); see also

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that to avoid dismissal for

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failure to state a claim, “a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim

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has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” (internal citation omitted)).

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

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a claim, the Court has discretion to dismiss with or without leave to amend.

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Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc). Leave to

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amend should be granted if it appears possible that the defects in the complaint

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could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also

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Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (noting that “[a] pro

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se litigant must be given leave to amend his or her complaint, and some notice

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of its deficiencies, unless it is absolutely clear that the deficiencies of the
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complaint could not be cured by amendment”) (citing Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is

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clear that a complaint cannot be cured by amendment, the Court may dismiss

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without leave to amend. Cato, 70 F.3d at 1105-06; see, e.g., Chaset v.

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Fleer/Skybox Int’l, 300 F.3d 1083, 1088 (9th Cir. 2002) (holding that “there is

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no need to prolong the litigation by permitting further amendment” where the

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“basic flaw” in the pleading cannot be cured by amendment); Lipton v.

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Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (holding that

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“[b]ecause any amendment would be futile, there was no need to prolong the

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litigation by permitting further amendment”).

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IV.

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DISCUSSION

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A.

First Claim for Relief
Plaintiff’s first claim for relief invokes 18 U.S.C. §§ 241 and 242 as well

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as 15 U.S.C. § 645. These criminal statutes do not provide a basis for civil

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liability. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding

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that 18 U.S.C. §§ 241 and 242 are criminal provisions that provide no basis for

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civil liability). For a section of the federal criminal code to provide a private

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right of action, there must be “at least [some] statutory basis for inferring that a

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civil cause of action of some sort lay in favor of someone.” Chrysler Corp. v.

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Brown, 441 U.S. 281, 316 (1979); see also Clinkscales v. Carver, 22 Cal.2d 72,

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75 (1943) (“A statute that provides for a criminal proceeding only does not

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create a civil liability; if there is no provision for a remedy by civil action to

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persons injured by a breach of the statute it is because the Legislature did not

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contemplate one.”). The Court has reviewed the federal criminal codes cited

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by Plaintiff and finds no indication that civil enforcement of any kind is

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available to him. Plaintiff’s first claim for relief is therefore subject to dismissal.

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B.

Second Claim for Relief
Plaintiff’s second claim for relief invokes 31 U.S.C. § 5118(b)(2). There is

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no paragraph (2) in 31 U.S.C. § 5118(b), a statute that regulates the use of

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“gold clauses.” Plaintiff’s invocation of this statute in connection with his

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interaction with a local police officer is nonsensical. Plaintiff’s second claim for

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relief is therefore subject to dismissal.

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C.

Third and Fourth Claims for Relief

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Plaintiff’s third and fourth claims for relief both make allegations of

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“false arrest.” Complaint at 4, 5. Plaintiff’s third claim for relief states that

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Warner’s false arrest has damaged Plaintiff because the ticket issued does not

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give adequate notice and thus does not comport with due process. Id. at 4-5.

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Plaintiff’s fourth claim for relief simply alleges false arrest. Id. at 5. Because

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both claims appear to be barred by Heck v. Humphrey, 517 U.S. 477 (1994),

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Plaintiff’s third and fourth claims for relief are subject to dismissal.

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Under Heck v. Humphrey, a § 1983 claim that would call into question

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the lawfulness of a plaintiff’s conviction or confinement is not cognizable, and

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therefor does not accrue, until and unless the plaintiff can prove that his

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conviction or sentence has been reversed on direct appeal, expunged by

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executive order, declared invalid by a state tribunal authorized to make such a

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

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habeas corpus. 512 U.S. at 486-87. Accordingly, when a plaintiff files a § 1983

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action, the Court must consider whether “a judgment in favor of the plaintiff

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would necessarily imply the invalidity of his conviction or sentence; if it

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would, the complaint must be dismissed unless the plaintiff can demonstrate

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that the conviction or sentence has already been invalidated. Id. at 487.

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

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Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (“To prevail on his 1983

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claims for false arrest and imprisonment, [plaintiff] would have to demonstrate
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that there was no probable cause to arrest him . . . [F]inding that there was no

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probable cause would ‘necessarily imply’ that [plaintiff’s] conviction for

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disturbing the peace was invalid. Therefore, under Heck [plaintiff’s] false arrest

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and imprisonment claims [are] not cognizable.”); see also Guerrero v. Gates,

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442 F.3d 697, 703 (9th Cir. 2006) (concluding that Heck barred plaintiff’s civil

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rights claims alleging wrongful arrest, malicious prosecution and conspiracy

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among police officers to bring false charges against him); Smithart v. Towery,

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79 F.3d 951, 952 (9th Cir. 1996) (holding that Heck barred Plaintiff’s civil

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rights claims alleging that defendants lacked probable cause to arrest him and

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brought unfounded criminal charges against him). Heck prevents a plaintiff

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from bringing a claim that, even if it does not directly challenge the conviction,

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would imply that the conviction was invalid.

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Here, Plaintiff’s allegations do not describe the outcome of any violation

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or infraction proceedings arising out of the electronic ticket issued by Warner.

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If those proceedings have not been completed, or if they have been completed

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with criminal charges, Plaintiff § 1983 claim for false arrest is barred by Heck

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until the criminal charges have been dismissed or the conviction has been

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overturned.

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V.

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CONCLUSION

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For the reasons set forth above, the Complaint is subject to dismissal.

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Although the Court is doubtful that the deficiencies identified above can be

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cured by amendment, it will nonetheless give Plaintiff an opportunity to do so

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and order dismissal of Plaintiff’s Complaint with leave to amend. Accordingly,

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if Plaintiff still desires to pursue his claims, he shall file a First Amended

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Complaint within thirty-five (35) days of the date of this Order remedying the

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deficiencies discussed above. Plaintiff’s First Amended Complaint should bear

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the docket number assigned in this case; be labeled “First Amended
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Complaint”; and be complete in and of itself without reference to the prior

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complaints or any other pleading, attachment or document. The Clerk is

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directed to send Plaintiff a blank Central District civil rights complaint form,

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which Plaintiff is encouraged to utilize.

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

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

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prejudice for failure to diligently prosecute.

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Dated: September 14, 2015
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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