Berna v. Powell et al

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND re 1 signed by Magistrate Judge Gary S. Austin on 8/10/2015. Amended Complaint due by 9/8/2015. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00283-AWI-GSA

BRUCE BERNA,

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Plaintiff,

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v.

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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LUKE POWELL, et al.
Defendants.

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(ECF No. 1)

Plaintiff Bruce Berna (“Plaintiff”) filed a complaint (the “Complaint”) against a number
of individual defendants employed as special agents by the Bureau of Firearms of the California
Department of Justice (“Defendants”) on February 23, 2015. (ECF No. 1.) The Complaint alleges
a cause of action under 42 U.S.C. § 1983 against defendants Luke Powell, Frank Navarro, Lee
Cariaga, Alfredo Fuerto, and Alfred Frausto. As discussed below, the Complaint will be
dismissed because it fails to state a claim. Plaintiff is granted leave to file an amended complaint.
I.

DISCUSSION
a.

Legal Standard

Under 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the Complaint

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to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous or

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malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If

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the Court determines that the Complaint fails to state a claim, it must be dismissed. Id. Leave to

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amend may be granted to the extent that the deficiencies of the Complaint can be cured by

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amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations

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are accepted as true, legal conclusions are not. Id. at 678.

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To determine whether a complaint states an actionable claim, the Court must accept the

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allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740

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(1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less

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stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342

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(9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after

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Iqbal).
Plaintiff’s Allegations

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b.

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Plaintiff’s Complaint, though lengthy, contains few factual allegations. On September 11,

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2011, Defendants Frank Navarro and Luke Powell allegedly conducted an illegal search of

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Plaintiff’s home. (Complaint 3, 7, 13, ECF No. 1.)1 The circumstances surrounding the search are

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unclear, as are the results of the search. In fact, it is even unclear whether the target of the search

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was Plaintiff’s house or a trailer. (Complaint 11, 13, ECF No. 1.) Several months after the search,

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a warrant was issued for Plaintiff’s arrest. (Complaint 7, ECF No. 1.) Over the course of the

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Page numbers in the Complaint will be refer to the CM/ECF generated page numbers which appear in the upper
right hand corner of the Complaint.

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ensuing criminal case, Navarro and Powell offered testimony regarding their search at various

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hearings, including Plaintiff’s preliminary hearing and a hearing on a motion to suppress. Id.

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Eventually, Plaintiff was sentenced to thirty two months in prison, although it is unclear whether

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this was the result of a jury trial or of a plea bargain. (Complaint 8, ECF No. 1.) It is also not clear

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what role the purportedly illegal search (or evidence obtained in that search, if any) played in

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these proceedings. The rest of the Complaint is a recitation of legal rules that appear to have been

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copied from a legal outline, regarding, among other things, illegal searches and seizures; the good

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faith exception; consent to searches; sovereign immunity; and statutes of limitations. The

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Complaint also contains numerous references to trial transcripts and Plaintiff’s appellate brief

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before the California Court of Appeal, although copies of those documents are not attached to the

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Complaint.
Analysis of Plaintiff’s Allegations

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c.

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To state a claim under § 1983, a plaintiff “must allege a violation of a right secured by the

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Constitution and laws of the United States, and must show that the alleged deprivation was

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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

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Rule 8(a) additionally requires that each complaint contain “a short and plain statement of the

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claim showing the pleader is entitled to relief.” Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Iqbal, 550 U.S. at 555. It is not enough to merely conclude that these

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elements have been met; a plaintiff must provide facts sufficient to state a plausible claim under

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these elements. Plaintiff must demonstrate that each defendant personally participated in the

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deprivation of his rights. Iqbal, 556 U.S. at 677; Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011,

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1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). The

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complaint must allege that every defendant acted with the requisite state of mind to violate the

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underlying constitutional provision. OSU Student Alliance v. Ray, 699 F.3d 1053, 1070 (9th Cir.

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2012).

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Plaintiff has not stated facts sufficient to state a plausible violation of § 1983. Although it
is apparent that Plaintiff believes Defendants engaged in some wrongdoing with respect to his
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criminal case, it is not at all clear what the circumstances or context of that wrongdoing were. Nor

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is it clear what roles the five defendants played in the alleged wrongdoing—only two of the

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defendants are explicitly named in the Complaint in relation to the search. The Complaint cannot

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proceed without some factual basis for each defendant’s liability. It is not sufficient to say that

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defendants engaged in an “illegal search”; Plaintiff should explain what occurred during the

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search and what role the fruits of the search played in the litigation that followed.

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II.

LEAVE TO AMEND

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The Court will provide Plaintiff an opportunity to amend the Complaint to fix the issues

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identified above. If Plaintiff chooses to file a First Amended Complaint, it must bear the docket

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number assigned in this case and be labeled “First Amended Complaint.” As a general rule, an

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amended complaint supersedes the original complaint. Lacey v. Maricopa Cnty., 693 F.3d 896

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(9th Cir. 2012) (noting that there may be limited exceptions to this rule on appeal). In other

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words, the amended complaint must be “complete in itself without reference to the prior or

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superseded pleading.” Local Rule 220.

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ORDER

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For the reasons set forth above, Plaintiff’s Complaint is DISMISSED WITH LEAVE TO

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AMEND. Plaintiff is instructed to consider the standards set forth in this Order and should only

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file an amended complaint if he believes his claims are cognizable. Any amended complaint shall

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be filed no later than September 8, 2015. Failure to file an amended complaint by the date

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specified will result in dismissal of this action.

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IT IS SO ORDERED.
Dated:

August 10, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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