Williams v. Jurdon et al

Filing 6

FINDINGS and RECOMMENDATIONS to Dismiss 5 First Amended Complaint without Leave to Amend, signed by Magistrate Judge Michael J. Seng on 9/10/17. Referred to Judge O'Neill. Fourteen Day Objection Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AKHEEM D. WILLIAMS,

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Plaintiff,

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v.
PATRICK JURDON, et al.,

CASE NO. 1:17-cv-00860-LJO-MJS
FINDINGS AND RECOMMENDATIONS
TO DISMISS FIRST AMENDED
COMPLAINT WITHOUT LEAVE TO
AMEND
(ECF NO. 5)

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Defendants.

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FOURTEEN
DEADLINE

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(14)

DAY

OBJECTION

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Plaintiff Akheem D. Williams proceeds pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. On July 14, 2017, the Court

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screened Plaintiff’s complaint and dismissed it with leave to amend. (ECF No. 3.) His

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first amended complaint is now before the Court for screening. (ECF No. 5.)

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I.

Screening Requirement

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

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complaint to determine if it states a cognizable claim. The Court must dismiss a

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complaint or portion thereof if it determines that the action has raised claims that are

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legally "frivolous or malicious," "fails to state a claim upon which relief may be granted,"

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2)(B). "Notwithstanding any filing fee, or any portion thereof, that may have

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been paid, the court shall dismiss the case at any time if the court determines that . . .

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the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C.

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§ 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:

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

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(2) that the alleged violation was committed by a person acting under the color of state

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

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1243, 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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///

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III.

Plaintiff’s Allegations

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Plaintiff complains of acts that occurred during his encounters with law

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enforcement officers in Hanford, California. He names police officer Patrick Jurdon as a

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defendant. The original complaint also named Officers Lerry Leeds, Jonathan Rivera,

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Steven Sitter, Adams, and Martinez. These officers are not listed in the caption of the

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first amended complaint nor mentioned in any section of the pleading identifying

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defendants. Rule 10(a) of the Federal Rules of Civil Procedure requires that each

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defendant be named in the caption of the complaint. A complaint is subject to dismissal if

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“one cannot determine from the complaint who is being sued, [and] for what relief. . .”

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McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Nevertheless, it is clear that

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Plaintiff intends to proceed against all of the individuals named in his prior complaint.

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Accordingly, the Court will address the allegations.

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His allegations are substantially similar to those presented previously, although
with some additional detail. The allegations may be summarized essentially as follows:

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On February 5, 2017, Plaintiff had an encounter with Defendants Sitter, Adams,

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and Martinez. Sitter came to Plaintiff’s home to talk about a hit and run. Sitter claimed to

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have seen Plaintiff driving and swerving. This was false. Plaintiff told Sitter to leave.

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Adams and Martinez arrived and Plaintiff was arrested on false charges of DUI. Plaintiff

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appears to claim that Defendants did not follow up with the alleged witness to the hit and

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run who was racially profiling Plaintiff, as were the officers. The case against Plaintiff is

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currently pending in Kings County Superior Court. The officers also gave a false account

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of this incident to the local newspaper. This conduct violated Plaintiff’s Fourth and

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Fourteenth Amendment rights and also constitutes intentional infliction of emotional

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distress, recklessness, false imprisonment, and slander.

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On February 21, 2017, officers were called to Holt Street on allegations of animal

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cruelty called in by Plaintiff’s neighbor. Plaintiff was bitten by a pet dog and put the dog

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over his fence to protect himself and school children who might be passing by. Officers

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Jurdon, Rivera, and Leeds responded. Plaintiff explained the incident to Defendant

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Jurdon. Officers Jurdon, Rivera, and Leeds falsely claimed that the dog was injured and

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almost drowned. According to Plaintiff, however, the dog could not have drowned

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because there was no water in the canal behind his house on that date. A “false witness”

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gave the officers false information. The police were wearing body cameras but did not

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take video when they went through the neighbor’s yard to examine the dog. Plaintiff

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provides detailed explanations of why and how he believes the officers’ gave false

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testimony.

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Plaintiff was arrested and jailed on these false charges from February 21, 2017 to

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June 26, 2017. His car was impounded and his personal effects were taken. The case

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against Plaintiff ultimately was dismissed. The officers also falsely reported the incident

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to the local newspaper. The officers’ conduct violated Plaintiff’s Fourth and Fourteenth

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Amendment rights and constituted false imprisonment, unlawful arrest, intentional

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infliction of emotional distress, and slander.

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Finally, Plaintiff claims that he was “stalked” on multiple occasions by Defendants

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Jurdon and Leeds. The officers would pass by his house and flash their lights on his

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house or sit outside. In November 2016 officers saw him pushing his car down the street

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and accused him of DUI. It appears that his car was impounded, the impounded fees

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were sent to collections, and Plaintiff’s social security income was garnished. He

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contends this behavior constitutes racial profiling.

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Plaintiff does not specify any requested relief but requests a jury trial.
IV.

Analysis

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A.

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Plaintiff currently is facing charges in relation to the February 5, 2017 incident.

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Accordingly, this Court must abstain from addressing his claims regarding that incident.

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Under principles of comity and federalism, a federal court should not interfere with

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ongoing state criminal proceedings except under special circumstances. Younger v.

Abstention

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Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 401 U.S. 66 (1971). Abstention is proper

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regardless of whether the applicant seeks declaratory relief, injunctive relief, or

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damages. See Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) ( “When a state

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criminal prosecution has begun, the Younger rule directly bars a declaratory judgment

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action” as well as a section 1983 action for declaratory relief and damages “where such

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an action would have a substantially disruptive effect upon ongoing state criminal

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proceedings.”); Gilbertson v. Albright, 381 F.3d 965, 984 (9th Cir. 2004) (Younger

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abstention applies to actions for damages as it does to declaratory and injunctive relief).

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Younger abstention is required when: (1) state judicial proceedings are pending; (2) the

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state proceedings involve important state interests; and (3) the state proceedings afford

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adequate opportunity to raise the constitutional issue. Middlesex Cnty. Ethics Comm. v.

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Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Dubinka v. Judges of the Super. Ct.,

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23 F.3d 218, 223 (9th Cir. 1994).

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The remainder of this screening order addresses only the February 21, 2017
incident.

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C.

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Plaintiff brings a Fourth Amendment claim that he was arrested on false charges.

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An arrest without probable cause violates the Fourth Amendment and gives rise

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to a claim for damages under section 1983. Harper v. City of Los Angeles, 533 F.3d

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1010, 1022 (9th Cir. 2008). “Probable cause to arrest exists when officers have

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knowledge or reasonably trustworthy information sufficient to lead a person of

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reasonable caution to believe an offense has been or is being committed by the person

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being arrested.” Id. (internal quotation marks omitted) (quoting United States v. Lopez,

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482 F.3d 1067, 1072 (9th Cir. 2007)). While conclusive evidence of guilt is not required,

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“[m]ere suspicion, common rumor, or even strong reason to suspect are not enough” to

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establish probable cause. Id. (citation and internal quotation marks omitted).

Fourth Amendment

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Here, an eyewitness reported seeing Plaintiff throw a dog over his fence. Plaintiff

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himself acknowledged choking the dog and throwing it over the fence, although he

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believed he had reason to do so. A dog was, indeed, seen on the other side of Plaintiff’s

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fence. These facts are sufficient to show that officers had probable cause to arrest

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Plaintiff. Although Plaintiff challenges the extent of the investigation undertaken by

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officers and the ultimate condition of the dog (i.e., how severely it was injured), such

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disputes are insufficient to allege a claim based on an arrest lacking probable cause.

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This claim should be dismissed without further leave to amend.

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D.

Fourteenth Amendment Due Process

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To the extent Plaintiff’s Fourteenth Amendment claim is based on alleged

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falsehoods in the police report, he is advised that the filing of a false police report itself

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does not amount to a constitutional violation. However, it can provide the basis for a

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§ 1983 action where it results in some constitutional harm to the plaintiff. See, e.g.,

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Landrigan v. City of Warwick, 628 F.2d 736, 744-45 (1st Cir. 1980) (“[T]he mere filing of

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the false police reports, by themselves and without more, did not create a right of action

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in damages under 42 U.S.C. § 1983.”); Bronner v. S.F. Superior Court, 2010 U.S. Dist.

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LEXIS 80503, at * 15, 2010 WL 2650500 (N.D. Cal. July 1, 2010) (“Numerous courts

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have held that the fact that a false, incomplete or fraudulent police report has been filed

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is insufficient to state a § 1983 claim. . . . As these cases make clear, there must be

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some constitutional deprivation that flows from the report.”).

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Here, the Court finds no constitutional violation flowing from the aspects of the

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police report that Plaintiff disagrees with. As stated above, even setting aside these

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alleged fabrications, there was probable cause to support Plaintiff’s arrest. Plaintiff does

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not identify any other violation.

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The Ninth Circuit has recognized “a clearly established constitutional due process

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right not to be subjected to criminal charges on the basis of false evidence that was

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deliberately fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074-

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75 (9th Cir. 2001); see also Costanich v. Dep't of Soc. & Health Servs., 627 F.3d 1101,

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1111-12 (9th Cir. 2010) (relying on Devereaux to hold that a state investigator “who

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deliberately mischaracterizes witness statements in her investigative report also commits

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a constitutional violation”). To state such a claim, Plaintiff must point to evidence that

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supports at least one of the following two propositions: “(1) Defendants continued their

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investigation of [Plaintiff] despite the fact that they knew or should have known that he

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was innocent; or (2) Defendants used investigative techniques that were so coercive and

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abusive that they knew or should have known that those techniques would yield false

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information.” Devereaux, 263 F.3d at 1076.

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Nothing indicates that Defendants knew Plaintiff was innocent or used abusive or

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coercive investigative techniques. This claim should be dismissed without further leave

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to amend.

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E.

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Plaintiff claims a Fourteenth Amendment Equal Protection violation on the basis

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Fourteenth Amendment Equal Protection

of racial profiling.

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The Equal Protection Clause requires that persons who are similarly situated be

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treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

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(1985). An equal protection claim may be established by showing that the defendant

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intentionally discriminated against the plaintiff based on the plaintiff's membership i n a

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protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of

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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were

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intentionally treated differently without a rational relationship to a legitimate state

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purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y

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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of

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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). “The Constitution prohibits selective

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enforcement of the law based on considerations such as race.” Whren v. United States,

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517 U.S. 806, 814 (1996).

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Plaintiff’s allegations of racial profiling appear to be entirely speculative. Indeed,

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the two specific law enforcement encounters identified appear to have been precipitated

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by eyewitness reports to the police. Plaintiff does not provide sufficient facts to suggest

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that other law enforcement encounters were motivated by racial discrimination. This

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claim should be dismissed without further leave to amend.

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F.

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The Court may exercise supplemental jurisdiction over state law claims in any civil

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action in which it has original jurisdiction, if the state law claims form part of the same

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case or controversy. 28 U.S.C. § 1367(a). “The district courts may decline to exercise

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supplemental jurisdiction over a claim under subsection (a) if . . . the district court has

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dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). The

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Supreme Court has cautioned that “if the federal claims are dismissed before trial, . . .

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the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383

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U.S. 715, 726 (1966).

State Law Claims

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Because Plaintiff fails to allege a cognizable federal claim, the Court cannot

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exercise supplemental jurisdiction over his state law claim. 28 U.S.C. § 1367(a); Herman

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Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001). Plaintiff’s

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state law claims should be dismissed.

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V.

Conclusion and Order

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Plaintiff’s complaint fails to state a claim upon which relief may be granted. He

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previously was advised of pleading defects and afforded the opportunity to cure them.

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He failed to do so. Further leave to amend appears futile and should be denied.

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Accordingly, it is HEREBY RECOMMENDED that:
1. Plaintiff’s claims regarding the February 21, 2017 incident be dismissed
with prejudice for failure to state a claim;
2. Plaintiff’s claims regarding the February 5, 2017 incident be dismissed
without prejudice pursuant to Younger;

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3. Plaintiff’s state law claims be dismissed for lack of jurisdiction;

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4. Leave to amend be denied; and

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5. The case be closed.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 10, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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