Pao v. Superior Court County of Fresno, et al.

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 1/29/2015. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHERTA LEE PAO,

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Plaintiff,

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(ECF NO. 1)
SUPERIOR COURT COUNTY OF
FRESNO, et al.,

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Plaintiff is a pretrial detainee proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 4.) Plaintiff has
consented to Magistrate Judge jurisdiction. (ECF No. 6.) No other parties have appeared
in the action.

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AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

Defendants.

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ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.

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CASE NO. 1:14-cv-01731-MJS (PC)

Plaintiff‟s complaint is before the Court for screening.
I.

SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated and (2)

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that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

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1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff is detained at Fresno County Jail. He names the following Defendants: (1)

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Superior Court of the State of California, County of Fresno, (2) Fresno City Police, (3)
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Fresno County Sherriff‟s Office (Jail Division) Administration, and (4) Sherriff Margaret

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Mims.

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Plaintiff‟s allegations can be summarized essentially as follows:

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Plaintiff was arrested by the Fresno Police Department. The Fresno Police

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Department does not exist. The officers were impersonating Fresno City Police, but

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actually were fake, unauthorized officers from Los Angeles County.

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The arresting officers made false charges against Plaintiff and printed a fake
arrest report. Plaintiff received a booking report that listed no pending charges or bail.

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Plaintiff was not read his rights. He was not permitted to call his family.

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The Sherriff‟s Office should have checked the credentials of the arresting officers,

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but did not. Thus, the Sherriff‟s Office and Sherriff Mims conspired with the fake officers

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to detain Plaintiff.

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Plaintiff was charged twice for each of the fake crimes the fake officers alleged he
committed.
Plaintiff requests that “men of authority” free him from the Fresno County Jail.

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IV.

ANALYSIS

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A.

Younger Abstention

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To the extent Plaintiff seeks intervention in ongoing state criminal proceedings,

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this Court must abstain. Under principles of comity and federalism, a federal court should

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not interfere with ongoing state criminal proceedings by granting injunctive or declaratory

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relief except under special circumstances. Younger v. Harris, 401 U.S. 37 (1971);

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Samuels v. Mackell, 401 U.S. 66 (1971). Abstention is proper regardless of whether the

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applicant seeks declaratory relief, injunctive relief, or damages. See Mann v. Jett, 781

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F.2d 1448, 1449 (9th Cir. 1986) ( “When a state criminal prosecution has begun, the

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Younger rule directly bars a declaratory judgment action” as well as a section 1983

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action for declaratory relief and damages “where such an action would have a

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substantially disruptive effect upon ongoing state criminal proceedings.”); Gilbertson v.

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Albright, 381 F.3d 965, 984 (9th Cir. 2004) (Younger abstention applies to actions for
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damages as it does to declaratory and injunctive relief). Younger abstention is required

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when: (1) state judicial proceedings are pending; (2) the state proceedings involve

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important state interests; and (3) the state proceedings afford adequate opportunity to

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raise the constitutional issue. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass‟n,

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457 U.S. 423, 432 (1982); Dubinka v. Judges of the Super. Ct., 23 F.3d 218, 223 (9th

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Cir. 1994).
Accordingly, the Court will abstain from interfering with Plaintiff‟s ongoing state

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proceeding.

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B.

Heck Bar

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To the extent Plaintiff‟s state criminal proceedings may have concluded, Plaintiff

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should note that state prisoners cannot challenge the fact or duration of their

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confinement in a section 1983 action. Their sole remedy lies in habeas corpus relief.

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Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable

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termination rule or the Heck bar, this exception to § 1983‟s otherwise broad scope

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applies whenever state prisoners “seek to invalidate the duration of their confinement-

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either directly through an injunction compelling speedier release or indirectly through a

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judicial determination that necessarily implies the unlawfulness of the State's custody.”

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Wilkinson, 544 U.S. at 81. “[A] state prisoner's § 1983 action is barred (absent prior

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invalidation) if success in that action would necessarily demonstrate the invalidity of

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confinement or its duration.” Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994)

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(until and unless favorable termination of the conviction or sentence occurs, no cause of

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action under § 1983 exists).

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If Plaintiff chooses to amend, he should note that a challenge to the fact or

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duration of his confinement cannot be raised in a § 1983 action.

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V.

CONCLUSION AND ORDER

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Plaintiff's claims are barred under Younger and Heck. The Court will grant Plaintiff

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an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts
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resulted in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff

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must set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟”

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Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate

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that each named Defendant personally participated in a deprivation of his rights. Jones

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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this screening order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1. The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form and

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(2) a copy of his Complaint, filed November 5, 2014;
2. Plaintiff‟s Complaint is dismissed for failure to state a claim upon which relief
may be granted;
3. Plaintiff shall file an amended complaint within thirty (30) days; and

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4. If Plaintiff fails to file an amended complaint in compliance with this order, this

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action will be dismissed, with prejudice, for failure to state a claim and failure

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to comply with a court order subject to the “three strikes” provision set forth in

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28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:

January 29, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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