(PC) Booth v. Campbell et al

Filing 12

SCREENING ORDER Granting Plaintiff Leave to File Amended Complaint signed by Magistrate Judge Barbara A. McAuliffe on 05/10/2022. Amended Complaint due within Thirty-Days. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK J. BOOTH,

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Plaintiff,
v.
TOLBERT CAMPBELL, et al.,

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Defendants.

Case No. 1:21-cv-00123-JLT-BAM
SCREENING ORDER GRANTING
PLAINTIFF LEAVE TO FILE AMENDED
COMPLAINT
(Doc. 1)
THIRTY-DAY DEADLINE

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Plaintiff Patrick J. Booth (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, initiated this civil rights action against Deputy Sheriff Tolbert Campbell, Deputy

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Sheriff Karl Hancock, and Madera County Sheriff John Doe on January 19, 2021. Plaintiff’s

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complaint is currently before the Court for screening. (Doc. 1.)

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I.

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b);

Screening Requirement and Standard

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1915(e)(2)(B)(ii).
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 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully

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

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standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at Mule Creek State Prison in Ione, California. He brings suit

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against Madera County Deputy Sheriffs Tolbert Campbell and Karl Hancock in their individual

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capacities and Madera County Sheriff John Doe, in his individual and professional capacity, for

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asserted violations of the Fourth, Fifth and Fourteenth Amendments to the United States

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Constitution.

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Plaintiff alleges that on October 16, 2021, the California Court of Appeal for the Fifth

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Appellate District issued an order granting Plaintiff’s request for a digital disc and set of photos

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on the disc. (Doc. 1 at 10.) The Court takes judicial notice of the Appellate Court’s order, which

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is attached to Plaintiff’s complaint. U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo,

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Inc., 971 F.2d 244, 248 (9th Cir. 1992) (finding court may take judicial notice of the records of

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proceedings in other federal or state courts if related to the matters at issue). According to the

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order, Plaintiff brought a habeas corpus petition asserting that he was denied a copy of “the digital

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disc containing the photographs of the crime scene, which criminalist Dolores Floriano collected
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on or about July 19, 2004.” (Doc. 1 at 8.) Plaintiff reportedly argued that after the photographs

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were taken, evidence containing his fingerprints was planted at the scene. He also argued that the

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photos on the digital disc would establish that said evidence was not at the crime scene at the time

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the criminalist took the photos on digital disc. (Id.) The Appellate Court concluded that Plaintiff

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had “made a sufficient prima facie showing to warrant the issuance of an order to show cause

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returnable before the superior court with directions to grant [Plaintiff] a copy of said digital disc

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that was prepared by the criminalist, Dolores Floriano, and copies of all of the photos collected on

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said disc.” (Id.) The Appellate Court ordered the Department of Corrections and Rehabilitation

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to show cause before the Madera County Superior Court why Plaintiff was not entitled to the

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relief granted by the order. (Id.)
In his complaint, Plaintiff contends that the disc and photos were withheld from him

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before trial in Madera Superior Court case number MCR019164. Plaintiff asserts that he was

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convicted due to evidence falsified by Defendants Hancock and Campbell.

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Plaintiff further alleges that on January 14, 2021, District Attorney Peterson sent 30 color

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photos of the crime scene, which were on the digital disc that was withheld before trial. The

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photos were taken by Dolores Floriano, at the location of a home invasion in Madera, California

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on July 19, 2004, immediately following the crime.

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In 2004, Plaintiff was arrested in Nevada for questioning in the Madera, California home

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invasion. Defendant Campbell interrogated Plaintiff, who proclaimed his innocence. Plaintiff

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also requested an attorney and did not answer more questions from Defendant Campbell. After

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the interrogation, Defendant Campbell pulled down on Plaintiff’s handcuffs and yelled,

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“[Expletive] I did not come all this way for nothing. If you don’t tell me who hurt this family all

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[sic] make [expletive] sure you go down for this [expletive]. If you protect them . . . you’ll find

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yourself in prison for the rest of your life.” (Doc. 1 at 11-12.) Plaintiff shrugged his shoulders

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and Defendant Campbell stated, “So be it then,” and walked away. (Id. at 12.)

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Plaintiff was extradited to Madera County and charged in the case of MCR019164 for the

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home invasion crime. Plaintiff advised his appointed attorney that Defendant Campbell was

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going to set him up and told the attorney about the interrogation in Nevada. Plaintiff felt the
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appointed attorney would not address Defendant Campbell’s threats, so Plaintiff filed his

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appointed attorney and represented himself in the criminal proceeding.

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Plaintiff proclaimed his innocence to the court and the district attorney, Mr. Licalsi.

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Plaintiff told Mr. Licalsi that the photos from the criminalist, Dolores Floriano, would prove that

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Defendant Campbell and Hancock were setting Plaintiff up. Plaintiff repeatedly requested the

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color photos and the court ordered Mr. Licalsi to provide them. However, Mr. Licalsi would not

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give Plaintiff the digital disco or a copy of the photos on the disc. Mr. Licalsi would only provide

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Plaintiff with 15 black and white photos of the crime scene.

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As part of discovery, Mr. Licalsi provided an array of 5 photos taken by Defendants

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Campbell and Hancock, which they testified were of the crime scene. They also went to the

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home days after to find new evidence that the criminalist did not collect at or on the day of the

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crime.

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Plaintiff claims that the criminalist took color photos of every room and at every angle in

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the home at the time the crime occurred using a digital 35-millimeter camera. Mr. Licalsi

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withheld the color photos, providing only 15 black and white photos, which Plaintiff alleges

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appears to be an attempt to cover up the acts of Defendants Campbell and Hancock. Plaintiff

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advised Mr. Licalsi that Defendants Campbell and Hancock were planting evidence in the case,

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but Mr. Licalsi refused to act on the information.

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On January 14, 2021, Plaintiff claims that it was discovered that Defendants Campbell and

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Hancock committed a felony act. Plaintiff contends that they used their authority as Sheriff’s

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officers to falsify evidence to wrongfully convict Plaintiff.

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Following the order by the state appellate court, Deputy District Attorney Peterson sent

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Plaintiff 30 color photos of the crime scene taken by criminalist Dolore Floriano. Plaintiff

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identifies certain evidence that he believes was falsified based on the provided photos. Plaintiff

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asserts that his Fourteenth Amendment due process and equal protection rights were violated,

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along with his First Amendment right of speech and assembly. Plaintiff used his right to be silent

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when Defendant Campbell questioned him in Nevada. Defendant Campbell also knew that it was

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Plaintiff’s “associations with the Red and White (Hells Angels Motorcycle Club) that [were]
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responsible for the crime in Madera.” (Doc. 1 at 16.)

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Plaintiff re-alleges that Defendants Campbell and Hancock falsified evidence to deprive

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Plaintiff of his freedom and used photos from Plaintiff’s home to insinuate that Plaintiff’s DNA

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and fingerprints were at the crime scene. They also took photos to insinuate that certain items

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were at the home in Madera, but the photos were not in Madera.

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As to Defendant Sheriff John Doe, Plaintiff alleges that he is responsible for training

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Defendants Campbell and Hancock. Plaintiff wrote the Sheriff a letter explaining that Defendants

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Campbell and Hancock falsified evidence to convict Plaintiff of crimes he did not commit. In the

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letter, Plaintiff indicated that the Sheriff should look at the evidence in the property room and

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explained what evidence would prove that Defendant Campbell and Hancock used to falsify

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evidence to get a wrongful conviction of Plaintiff. Additionally, Plaintiff alleges that the Sheriff

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used his authority to allow Defendants Campbell and Hancock to violate Plaintiff’s rights.

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Plaintiff also contends that the Sheriff did not protect and serve him. Plaintiff claims that he is in

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prison because the Sheriff is allowing days to go by knowing Defendants Campbell and Hancock

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falsified evidence without notifying the Madera County District Attorney and the Madera County

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Superior Court.

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III.

Discussion
A. Heck Bar

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At its core, Plaintiff’s complaint seeks damages pursuant to § 1983 based on allegations

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that Defendants Campbell and Hancock falsified evidence in Plaintiff’s criminal proceedings to

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deprive Plaintiff of his freedom.

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It has long been established that state prisoners cannot challenge the fact or duration of

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their confinement in a section 1983 action and 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 termination rule or

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the Heck bar, this exception to § 1983’s otherwise broad scope applies whenever state prisoners

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“seek to invalidate the duration of their confinement-either directly through an injunction

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compelling speedier release or indirectly through a judicial determination that necessarily implies

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the unlawfulness of the State's custody.” Wilkinson, 544 U.S. at 81; Heck v. Humphrey, 512 U.S.
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477, 482, 486–87 (1994); Edwards v. Balisok, 520 U.S. 641, 644 (1997). Thus, “a state prisoner’s

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§ 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or

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equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or

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internal prison proceedings)—if success in that action would necessarily demonstrate the

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invalidity of confinement or its duration.” Id. at 81–82.

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As indicated, Plaintiff’s damages action is premised on allegations that certain officers

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fabricated evidence used to convict him, which would necessarily implicate the validity of his

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conviction. However, a § 1983 action for damages will not lie where “establishing the basis for

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the damages claim necessarily demonstrates the invalidity of the conviction.” Heck, 512 U.S. at

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481–482. Plaintiff may not pursue § 1983 damages for his claims until Plaintiff can prove “that

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

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declared invalid by a state tribunal authorized to make such determination, or called into question

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by a federal court’s issuance of a writ of habeas corpus.” Id. at 487.

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B. Habeas Corpus

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To the extent that Plaintiff is attempting to challenge the validity of his conviction and his

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incarceration, the exclusive method for asserting that challenging is by filing a petition for writ of

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habeas corpus. As stated above, state prisoners cannot challenge the fact or duration of their

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confinement in a § 1983 action, and their sole remedy lies in habeas corpus relief. Wilkinson, 544

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U.S. at 78 (“[A] prisoner in state custody cannot use a § 1983 action to challenge the fact or

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duration of his confinement. He must seek federal habeas corpus relief (or appropriate state relief)

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instead.”).
C. Madera County Sheriff’s Department

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Plaintiff brings suit against Defendant Sheriff John Doe in his individual and official

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capacities. “A suit against a governmental officer in his official capacity is equivalent to a suit

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against the governmental entity itself.” Larez v. Cty. of Los Angeles, 946 F.2d 630, 646 (9th

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Cir.1991). Accordingly, the Court considers Plaintiff’s claims against Defendant Sheriff John Doe

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in his official capacity as a claim against the Madera County Sheriff’s Department.

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“To state a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements: (1) that a

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

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alleged violation was committed by a person acting under color of state law.” Campbell v.

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Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n. 5 (9th Cir. 2011) (citing Ketchum v.

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Alameda Cty., 811 F.2d 1243, 1245 (9th Cir.1987)).

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The Court recognizes that there is a split within district courts in the Ninth Circuit on

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whether a sheriff department is “person” under § 1983 and a proper defendant for § 1983 claims.

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See Siratsamy v. Sacramento Cty. Sheriff Dep’t, No. 2:21-cv-0678-JAM-KJN PS, 2021 WL

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2210711, at *4 (E.D. Cal. June 1, 2021) (noting split of authority on whether a California sheriff’s

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department or police department is a “person” under § 1983 and a proper defendant for § 1983

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claims); Cantu v. Kings Cty., No. 1:20-cv-00538-NONE-SAB, 2021 WL 411111, at *1 (E.D. Cal.

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Feb. 5, 2021) (discussing split within district courts in the Ninth Circuit on issue of whether a

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sheriff’s department or police department is a separately suable entity). However, certain courts,

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including the district judge assigned to this action, have found that a sheriff’s department or

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police department may be sued as a “person” under § 1983. See, e.g., Estate of Osuna v. Cty. of

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Stanislaus, 392 F.Supp.3d 1162, 1172 n. 2 (E.D. Cal. 2019) (concluding that sheriff’s departments

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and police departments are “persons” within the meaning of § 1983); Tennyson v. Cty. of

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Sacramento, No. 2:19-cv-00429-KJM-EFB, 2020 WL 4059568, at *6 (E.D. Cal. July. 20, 2020)

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(finding Sheriff’s Department a properly named defendant in § 1983 action).

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Under § 1983, a local government unit may not be held responsible for the acts of its

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employees under a respondeat superior theory of liability. Monell v. Dep’t of Soc. Servs. of Cty. of

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New York, 436 U.S. 658, 691 (1978). Generally, a claim against a local government unit for

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municipal or county liability requires an allegation that “a deliberate policy, custom, or practice ...

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was the ‘moving force’ behind the constitutional violation ... suffered.” Galen v. Cty. of Los

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Angeles, 477 F.3d 652, 667 (9th Cir. 2007). Plaintiff does not allege facts to support a claim that

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any alleged constitutional violation was the result of a deliberate policy, custom or practice

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instituted by the Madera County Sheriff’s Department.

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D. Supervisory Liability
Insofar as Plaintiff brings claims against Defendant John Doe in his individual capacity

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based solely on his supervisory role, he may not do so. Liability may not be imposed on

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supervisory personnel for the actions or omissions of their subordinates under the theory of

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respondeat superior. Iqbal, 556 U.S. at 676–77; Ewing v. City of Stockton, 588 F.3d 1218, 1235

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(9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Supervisors may be held liable only if they “participated in or directed the violations, or

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knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett,

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567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established when an

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official sets in motion a ‘series of acts by others which the actor knows or reasonably should

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know would cause others to inflict’ constitutional harms.” Corales, 567 F.3d at 570. Supervisory

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liability may also exist without any personal participation if the official implemented “a policy so

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deficient that the policy itself is a repudiation of the constitutional rights and is the moving force

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of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991)

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(citations and quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511

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U.S. 825 (1970).

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Here, Plaintiff’s conclusory statements are insufficient to state a cognizable claim against

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Defendant Sheriff John Doe. Plaintiff does not allege that Defendant Sheriff John Doe personally

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participated in or directed the alleged violations. Plaintiff also does not allege that Defendant

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Sheriff John Doe implemented a deficient policy that was the moving force of the violation. See

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Willard v. Cal. Dep’t of Corr. & Rehab., No. 14-0760, 2014 WL 6901849, at *4 (E.D. Cal. Dec.

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5, 2014) (“To premise a supervisor’s alleged liability on a policy promulgated by the supervisor,

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plaintiff must identify a specific policy and establish a ‘direct causal link’ between that policy and

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the alleged constitutional deprivation.”). A “failure to train” theory can be the basis for a

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supervisor’s liability under § 1983 in only limited circumstances, such as where the failure

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amounts to deliberate indifference. Id.; see also City of Canton v. Harris, 489 U.S. 378, 387-90

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(1989). To establish a failure-to-train claim, a plaintiff must show that “‘in light of the duties
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assigned to specific officers or employees, the need for more or different training [was] obvious,

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and the inadequacy so likely to result in violations of constitutional rights, that the policy-

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makers...can reasonably be said to have been deliberately indifferent to the need.’” Clement v.

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Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting Canton, 489 U.S. at 390). Plaintiff has not

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alleged facts demonstrating that defendant was deliberately indifferent to a need for more or

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different training.

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E. Doe Defendants
Plaintiff names Doe defendants in this action. Unidentified, or “John Doe” defendants
must be named or otherwise identified before service can go forward. “As a general rule, the use

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of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th

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Cir. 1980). Plaintiff is advised that John Doe or Jane Doe defendants cannot be served until

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Plaintiff has identified them as actual individuals and amended his complaint to substitute names

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for John Doe or Jane Doe.

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IV.

Conclusion and Order

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Plaintiff’s complaint fails to state a cognizable claim for relief under section 1983. As

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Plaintiff is proceeding pro se, the Court will grant Plaintiff an opportunity to amend his complaint

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to cure the identified deficiencies to the extent he is able to do so in good faith. Lopez v. Smith,

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

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556

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U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise

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

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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

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claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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“buckshot” complaints).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended

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complaint must be “complete in itself without reference to the prior or superseded pleading.”
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Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff a complaint form;

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Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint curing the deficiencies identified by the Court in this order (or file a notice of

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voluntary dismissal); and

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

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Court will recommend dismissal of this action, with prejudice, for failure to obey a court order

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and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 10, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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