(PC) Harris, Jr. v. Randle et al

Filing 27

FINDINGS and RECOMMENDATIONS to Dismiss Complaint; ORDER DIRECTING Clerk of Court to Assign Case to District Judge, signed by Magistrate Judge Helena M. Barch-Kuchta on 7/19/2021. Objections to F&R due within FOURTEEN DAYS. (Marrujo, C)

Case 1:19-cv-00254-DAD-HBK Document 27 Filed 07/19/21 Page 1 of 10
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEVON DANTE HARRIS, JR.,

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Case No. 1:19-cv-00254-HBK

Plaintiff,

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FINDINGS AND RECOMMENDATIONS TO
DISMISS COMPLAINT

v.
FOURTEEN-DAY OBJECTION PERIOD

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KERN COUNTY, KERN COUNTY
SHERIFF’S DEP’T, DEPUTIES
UNKNOWN, KERN COUNTY JAIL,
DOES UNKNOWN,

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(Doc. No. 21)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN CASE TO DISTRICT JUDGE

Defendant.

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This matter was reassigned to the undersigned on November 17, 2020. (Doc. No. 24).

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Plaintiff Devon Dante Harris, Jr. (“Plaintiff” or “Harris”), a state prisoner proceeding pro se,

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initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1).

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Plaintiff’s Third Amended Complaint1 is before the Court for screening. (Doc. No. 21). For the

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reasons stated below, the undersigned recommends that the Third Amended Complaint be

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dismissed for failure to state a cognizable claim.
I. BACKGROUND

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A. Procedural Posture

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Plaintiff filed his initial complaint on February 22, 2019 while confined in Kern County

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Plaintiff titles the pleading his “Second” Amended Complaint, but as set forth infra, the pleading is
Plaintiff’s fourth complaint and as such is a Third Amended Complaint.
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Jail. (Doc. No. 1). The then-assigned magistrate judge granted Plaintiff’s motion for leave to

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proceed in forma pauperis on May 7, 2019. (Doc. No. 7). Plaintiff sought leave and was granted

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permission to file an amended complaint (Doc. No. 11), which he filed on September 6, 2019.

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(Doc. No. 13). After screening, the then-assigned magistrate judge concluded that the amended

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complaint failed to state any cognizable claims. (Doc. No. 14). Plaintiff was afforded an

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opportunity to file a second amended complaint. (Id.). On December 23, 2019, Plaintiff filed a

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second amended complaint. (Doc. No. 17). The then-assigned magistrate judge issued a second

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screening order concluding the pleading stated Fourth and Fifth Amendment claims against the

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Kern County Sheriff’s Department and its unnamed deputies, but no other claims. (Doc. No. 18).

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Accordingly, the Court gave Plaintiff the opportunity to either notify the Court of his intention to

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proceed on the cognizable claims only, amend his complaint, or stand by his second amended

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complaint, subject to dismissal of non-cognizable claims and improper defendants. (Id.).

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Plaintiff chose to file a Third Amended Complaint on July 29, 2020. (Doc. No. 21, “TAC”).

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That pleading is the subject of these findings and recommendations. As of the date of these

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findings and recommendations, Plaintiff has been transferred from Kern County Jail to High

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Desert State Prison.

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B. Summary of the Complaint

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The TAC alleges Fourth, Fifth, and Eighth Amendment violations. (See generally Doc.

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No. 21, “TAC”). Defendants include: Kern County, Kern County Sheriff’s Department and

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unknown sheriff’s deputies, the Kern County Jail and “Does Unknown.” (Id. at 1-2). Plaintiff’s

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claims in his TAC stem from his arrests on November 18, 2018, January 3, 2019 and February 12,

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2019, when Plaintiff claims he was subjected to an unreasonable search and seizure, arrested

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without probable cause, deprived of his personal property, and not released after his release date.

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(Id. at 2-3). Plaintiff states Kern County has a policy of arresting criminal suspects without

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probable cause and Kern County Sheriff’s Department and its deputies carried out this policy

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when they arrested him without probable cause on the above dates, in violation of the Fourth

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Amendment. (Id. at 2-3). The TAC does not provide any facts surrounding any of Plaintiff’s

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arrests. Plaintiff states because of his arrests, he “lost vehicles,” which the court construes as a
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Fifth Amendment violation claim. (Id. at 3). Plaintiff further claims his Eighth Amendment right

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to be free from cruel and unusual punishment was violated when Defendants Kern County Jail

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and Kern County Sheriff’s Department continued to incarcerate him after his release date. (Id.).

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Finally, Plaintiff claims that his personal work vehicles were damaged, that he lost his job, fears

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for his life, has trouble sleeping, and suffers from other unnamed injuries. (Id. at 4).

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II. APPLICABLE LAW

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A. Screening Requirements and Fed. R. Civ. P. 8

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Under 28 U.S.C. § 1915A, a court is required to screen a prisoner’s complaint that seeks

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relief against a governmental entity, its officers, or its employees. See 28 U.S.C. § 1915A(a).

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The court must identify any cognizable claims and dismiss any portion of the complaint that is

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frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks

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

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§§ 1915A(b)(1), (2); see also 28 U.S.C. § 1915(e)(2)(b)(ii) (governing actions proceeding in

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forma pauperis).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may dismiss a claim as frivolous where it is based on an indisputably

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however unartfully pleaded, has an

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arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989);

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Franklin, 745 F.2d at 1227.

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A claim fails to state a claim upon which relief may be granted if it appears that the

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plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon

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v. King & Spalding, 467 U.S. 69, 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass’n, Inc.,

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651 F.2d 1289, 1294 (9th Cir. 1981).

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During screening, the court must accept as true the allegations of the complaint, Hosp.

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Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor. Jenkins v.
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McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir.

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2003) (the court must construe pro se pleadings liberally and afford the pro se litigant the benefit

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of any doubt). The court is not required to accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981).

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Plaintiff’s claims must be facially plausible to survive screening, which requires enough

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factual detail to allow the court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, (2009) (quotation marks omitted); Moss v.

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U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant

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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
A complaint must contain “a short and plain statement of the claim showing the pleader is

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entitled to relief. . ..” Fed. R. Civ. P. 8(a)(2). 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, 556 U.S. at 678 (citations omitted). Courts “are not required

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to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted). While factual allegations are accepted as

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true, legal conclusions are not. Iqbal, 556 U.S. at 678.

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If the court determines that a pleading could be cured by the allegation of other facts, a

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pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action.

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See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of

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Corr., 66 F.3d 245, 248 (9th Cir. 1995). A district court should not, however, advise the litigant

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on how to cure the defects. Such advice “would undermine district judges’ role as impartial

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decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131

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n.13.

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Examples of immunity from relief for consideration during screening, include, but are not

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limited to, quasi-judicial immunity, sovereign immunity, or qualified immunity. Additionally, a

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plaintiff may not recover monetary damages absent a showing of physical injury. See 42 U.S.C. §
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1997e(e). In other words, to recover monetary damages, a plaintiff must allege physical injury

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that need not be significant but must be more than de minimis, except when involving First

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Amendment claims. Oliver v. Keller, 289 F.3d 623, 626-28 (9th Cir. 2002) (surveying other

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circuit courts for the first time to address injury requirement for monetary damages, and agreeing

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with the Second, Fifth, and Eleventh Circuits on Prison Litigation Reform Act’s injury

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requirement).

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Finally, the Federal Rules of Civil Procedure permit a complaint to include all related

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claims against a party and permit joinder of all defendants alleged to be liable for the “same

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transaction, occurrence, or series of transactions or occurrence” where “any question of law or

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fact common to all defendants will arise in the action.” Fed. R. Civ. P. 18(a) and 20(a)(2)

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(emphasis added). But the Rules do not permit conglomeration of unrelated claims against

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unrelated defendants in a single lawsuit. Unrelated claims must be filed in separate lawsuits.

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B. Section 1983

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Section 1983 allows a private citizen to sue for the deprivation of a right secured by

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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To

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state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law

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caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park

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v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation

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requirement by showing either: (1) the defendant’s “personal involvement” in the alleged

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deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a

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supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th

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Cir. 2018).

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The statute plainly requires that there be an actual connection or link between the actions

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of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The Ninth

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Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right,

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within the meaning of section 1983, if he does an affirmative act, participates in another’s

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

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III. ANALYSIS

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A. Doe Defendants

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As an initial matter, the TAC identifies “Does Unknown” in the caption and in the listing

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of Defendants, but otherwise fails to provide any other information about these Doe Defendants.

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(See Doc. No. 21 at 1-2). The TAC lists “unknown” for the Doe Defendants’ employment titles

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and place of employment. (Id. at 2). Further, there are no factual allegations in the body of the

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TAC against any of these Doe Defendants.2 The Federal Rules of Civil Procedure do not

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expressly authorize or prohibit fictitious parties, although Rule 10 does require a plaintiff to

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include the names of all parties in his complaint. Fed. R. Civ. P. 10(a). When a plaintiff refers to

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unknown defendants as John Does, he must allege specific facts showing how each Doe

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defendant violated his rights. He then has the “opportunity through discovery to identify . . .

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unknown defendants, unless it is clear that discovery would not uncover the identities . . ..’”

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Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629

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E.2d 637, 642 (9th Cir. 1980)). Here, it is impossible for the Court to discern anything about the

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identity of these Doe Defendants. The TAC is completely silent on what, if any actions these Doe

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Defendants took that allegedly violated Plaintiff’s constitutional rights. Further, Plaintiff has not

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shown how discovery would uncover the identities of the Doe Defendants. Accordingly, the

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undersigned concludes the TAC fails to state a claim against the Doe Defendants and

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recommends they be dismissed from the case.

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B. Fourth Amendment Unreasonable Search and Seizure Claim

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Upon further review of the allegations in the TAC and binding precedent, the undersigned

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concludes the TAC fails to state a Fourth Amendment unreasonable search and seizure claim.

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According to the TAC, Kern County, Kern County Sheriff’s Department and its deputies, and

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Kern County Jail subjected Plaintiff to unreasonable searches and seizures when he was arrested

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Although plaintiff states that Kern County Sheriff’s deputies are “also identified as doe defendants,” he
need not name additional “unknown does” for this purpose. (Doc. No. 21 at 3).
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on November 18, 2018, January 3, 2019 and February 12, 2019 and detained in the Kern County

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Jail without probable cause. (Doc. No. 21 at 2-3). The TAC also generally states Plaintiff was

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held past his release date. (Id. at 3). The FAC neither specifies the dates of Plaintiff’s detention

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nor his supposed release date. (See generally Id.).

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Although Plaintiff characterizes this claim as a violation of his Eighth Amendment rights,

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Plaintiff’s rights stem from the Fourth Amendment. The Fourth Amendment protects “[t]he right

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of the people to be secure in their persons . . . against unreasonable . . . seizures.” “A person is

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seized” whenever officials “restrain[ ] his freedom of movement” such that he is “not free to

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leave.” Brendlin v. California, 551 U. S. 249, 254 (2007). “[T]he general rule [is] that Fourth

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Amendment seizures are ‘reasonable’ only if based on probable cause to believe that the

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individual has committed a crime.” Bailey v. United States, 568 U. S. 186, 192 (2013). Further,

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pre-trial detention without probable cause violates the Fourth Amendment right to be free from

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unreasonable seizures. See Manuel v. City of Joliet, 137 S. Ct. 911, 919 (2017) (“If the complaint

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is that a form of legal process resulted in pretrial detention unsupported by probable cause, then

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the right allegedly infringed lies in the Fourth Amendment.”).

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At the outset, neither Kern County Sheriff Department nor Kern County Jail are “persons”

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subject to suit under § 1983. See United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005)

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(“municipal police departments and bureaus are generally not considered ‘person’ within the

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meaning of section 1983”); Harper v. San Diego Cty., No. 3:20-CV-02409-CAB-LL, 2021 WL

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2433928, at *2 (S.D. Cal. June 15, 2021) (finding San Diego Jail not a “person” subject to § 1983

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civil rights claims).

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However, “[m]unicipalities and other local government units . . . [are] among those persons

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to whom § 1983 applies.” Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691

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(1978). A local government entity such as Kern County, however, “may not be sued under §

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1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a

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government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

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may fairly be said to represent official policy, inflicts the injury that the government as an entity

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is responsible under § 1983.” Monell, 436 U.S. at 694. Thus, Kern County may not be held
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liable for the acts of its employees unless “the action that is alleged to be unconstitutional

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implements or executes a policy statement, ordinance, regulation, or decision officially adopted or

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promulgated by that body’s officers,” or unless the alleged constitutional deprivation was “visited

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pursuant to a governmental ‘custom’ even though such a custom has not received formal approval

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through the decision-making channels.” Id.

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The TAC contains only conclusory allegations that Kern County has policies and practices

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which allow individuals to be arrested without a warrant or probable cause, in violation of the

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Fourth Amendment. (Doc. No. 21 at 2-3). The TAC neither cites to any established policy or

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provides any facts from which a pattern, policy or practice can be inferred. See City of St. Louis

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v. Praprotnik, 485 U.S. 112, 127 (1988) (recognizing that despite the absence of an explicit

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policy, a plaintiff may establish liability by articulating a permanent and well-settled practice by

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the defendants); see also Navarro v. Block, 72 F.3d 712, 714–15 (9th Cir. 1996). At the pleading

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stage, a complaint “may not simply recite the elements of a cause of action but must contain

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sufficient allegations of underlying facts to give fair notice and to enable the opposing party to

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defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); AE ex rel.

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Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

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Here, the TAC provides no underlying facts to support Plaintiff’s claim of a widespread

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policy and practice of arresting and detaining individuals without probable cause. Instead, the

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TAC contains only wholly conclusory statements that Defendants arrest individuals without a

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warrant or probable cause but fails to provide any facts to support this assertion. These claims do

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not give Defendant Kern County fair notice and the opportunity to defend itself. Accordingly, the

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undersigned recommends that Plaintiff’s Fourth Amendment claims against Kern County, Kern

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County Sheriff’s Department and Kern County Jail be dismissed.

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Similarly, the TAC is devoid of any facts in support of Plaintiff’s claims that Kern County’s

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unknown deputies arrested and detained him without probable cause on various occasions. The

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TAC fails to set forth any facts attendant to or circumstances surrounding Plaintiff’s arrests.

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Plaintiff fails to provide any information regarding what each unknown deputy did or failed to do

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in connection with his various arrest. Thus, the undersigned recommends the Fourth Amendment
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claims against the unknown deputies be dismissed.

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C. Fifth Amendment Takings Claim

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The Fifth Amendment requires the Government to pay just compensation when it takes

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property and applies to both personal and real property. U.S. Const., Amdt. 5; Horne v. Dep’t of

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Agriculture, 576 U.S. 350, 359-360 (2015). Mere allegations that a person is deprived of

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property by the state is not sufficient to state a constitutional claim. Rather, the Constitution

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requires the government to provide due process and make just compensation for any taking. Id.

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“[A]n unauthorized intentional deprivation of property by a state employee does not constitute a

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violation of the procedural requirements of the Due Process Clause of the Fourteenth

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Amendment if a meaningful post deprivation remedy for the loss is available.” Hudson v.

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Palmer, 468 U.S. 517, 533 (1984); King v. Massarweh, 782 F.2d 825, 827 (9th Cir. 1986)

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(“[P]ost-deprivation proceedings are sufficient to meet due process standards.”). A claim

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pursuant to § 1983 for deprivation of property does not arise “unless and until the State fails to

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provide” an adequate process to remedy the claimed deprivation of property. See Zinermon v.

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Burch, 494 U.S. 113, 125-26 (1990). “Thus, in challenging a property deprivation, the claimant

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must either avail himself of the remedies guaranteed by state law or prove that the available

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remedies are inadequate.” Hudson v. Palmer, 468 U.S. at 539 (J. O’Connor, concurrence).

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Here, Plaintiff claims that the Kern County Sheriff’s Department caused him to “lose

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vehicles” and that his “personal work vehicles were damaged.” (Doc. No. 21 at 3-4). California

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law permits civil tort claims against public officials under the Government Claims Act, which the

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Ninth Circuit has held to be an adequate post-deprivation remedy for any property deprivation.

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See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994); Cal. Gov’t Code §§ 810-895; see

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also Stribling v. Wilson, 770 Fed. Appx. 829, 830 (9th Cir. May 23, 2019) (dismissing claims that

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a prisoner was wrongfully deprived of personal property and noting that California law provides

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an adequate post-deprivation remedy). Because Plaintiff has an adequate post-deprivation

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remedy through California state law, his destroyed property allegations fail to state a federal

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claim. See King, 782 F.2d at 827 (Plaintiff is “relegated to the post-deprivation remedies

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available through the civil tort law process for [his] due process claims.”). Upon further review
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of the allegations in the TAC and binding precedent, the undersigned concludes that the TAC

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fails to state a Fifth Amendment takings claim. Accordingly, the undersigned recommends that

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Plaintiff’s Fifth Amendment takings claim be dismissed.

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IV. ORDER AND RECOMMENDATION

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Based on the above, the Court finds that Plaintiff’s TAC fails to state any cognizable

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claims. Despite being provided with the relevant pleading and legal standards, Plaintiff has been

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unable to cure the remaining deficiencies and further leave to amend is not warranted. Lopez v.

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Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Accordingly, it is ORDERED:

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The Clerk of the Court shall assign a District Judge to this action.

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Further, it is RECOMMENDED:

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This action be dismissed due to Plaintiff’s failure to state claims upon which relief may be

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granted.

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NOTICE TO PARTIES

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These findings and recommendations will be submitted to the United States District Judge

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

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days after being served with these findings and recommendations, a party may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

July 19, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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