Bourn v. People of the State of California et al

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/15/11 ORDERING pltf's request to proceed in forma pauperis 2 is GRANTED; pltf's complaint is dismissed with leave to amend; pltf is granted 30 days from the date of this order to file an amended complaint. (Carlos, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

STEVEN FLOYD BOURN,

11
12
13

Plaintiff,

No. CIV S-10-3067 GEB EFB PS

vs.
PEOPLE OF THE STATE OF
CALIFORNIA, et al.,

14
Defendants.
16

ORDER
/

15

This case, in which plaintiff is proceeding in propria persona, was referred to the

17

undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff seeks

18

leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

19

Plaintiff has submitted the affidavit required by § 1915(a) showing that he is unable to

20

prepay fees and costs or give security therefor. Accordingly, the request to proceed in forma

21

pauperis will be granted. 28 U.S.C. § 1915(a).

22

Determining plaintiff may proceed in forma pauperis does not complete the required

23

inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time

24

if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails

25

to state a claim on which relief may be granted, or seeks monetary relief against an immune

26

defendant.
1

1

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

2

520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if

3

it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

4

Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

5

(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

6

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

7

a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

8

relief above the speculative level on the assumption that all of the complaint’s allegations are

9

true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

10

legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

11

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

12

In reviewing a complaint under this standard, the court must accept as true the allegations

13

of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

14

(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

15

the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

16

satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

17

8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

18

pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

19

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

20

(citing Conley v. Gibson, 355 U.S. 41 (1957)).

21

Upon review of the complaint, the court finds that it must be dismissed with leave to

22

amend. Plaintiff names as defendants the People of the State of California, Michael L. Ramsey,

23

Linda Hunt, Jerry W. Smith, Sergeant Ament, Tom Dryden and Steven Bourn. Plaintiff alleges

24

that defendants Smith, Dryden and Ament falsely arrested plaintiff for failing to register as a sex

25

offender and accused plaintiff of committing rape on one or more occasions. Plaintiff alleges

26

that the People of the State of California, along with defendants Ramsey and Hunt falsely
2

1

charged plaintiff with failing to register as a sex offender. Plaintiff claims that these charges

2

violated the Ex Post Facto Clause of the United States Constitution and that he received

3

ineffective assistance of counsel at trial. Plaintiff, whose name is Steven Floyd Bourn, claims he

4

has been confused with a man who is also named Steven Bourn, and who plaintiff also names as

5

a defendant. Plaintiff claims that he is being charged for the crimes of defendant Steven Bourn

6

and has been forced to register as a sex offender. As relief, plaintiff requests damages, an order

7

stating that he is not a sex offender and not required to register as one, that his criminal record be

8

expunged, that all parole and probation requirements be stricken, that his superior court case be

9

dismissed, and that the superior court be directed to investigate the other Steven Bourn so that

10
11

plaintiff will no longer be charged with his crimes.
The complaint must be dismissed for failure to state a claim. If plaintiff seeks to

12

challenge the constitutionality of a conviction or the conditions of his parole or probation, he

13

may not do so in this action unless he demonstrates that the conviction or sentence has been

14

invalidated. In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held

15

that a suit for damages on a civil rights claim concerning an allegedly unconstitutional

16

conviction or imprisonment cannot be maintained absent proof “that the conviction or sentence

17

has been reversed on direct appeal, expunged by executive order, declared invalid by a state

18

tribunal authorized to make such determination, or called into question by a federal court’s

19

issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486. Under Heck, the

20

court is required to determine whether a judgment in plaintiff’s favor in this case would

21

necessarily invalidate his conviction or sentence. Id. In this regard, if plaintiff is claiming that

22

the defendants violated his federal constitutional rights and as a result he was arrested and

23

convicted, plaintiff may not recover damages in this action unless he can prove that his

24

conviction has been reversed. It appears unlikely that this is the case, as plaintiff requests that

25

this court dismiss proceedings of the state superior court and direct it to conduct an investigation.

26

Plaintiff is hereby informed that federal courts lack jurisdiction to issue a writ of mandamus to a
3

1

state court. See Demos v. United States Dist. Court for the E. Dist. of Wash., 925 F.2d 1160,

2

1161 (9th Cir. 1991). In a mandamus action, the court can only issue orders against employees,

3

officers or agencies of the United States. 28 U.S.C. § 1361.

4

Additionally, plaintiff appears to name county employees as defendants. Municipalities

5

(and their departments) may be sued under § 1983 only upon a showing that an official policy or

6

custom caused the constitutional tort. See Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429

7

U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);

8

Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003) (granting summary judgment to city and

9

city police department under Monell). “A local government entity cannot be held liable under

10

§ 1983 unless the plaintiff alleges that the action inflicting injury flowed from either an explicitly

11

adopted or a tacitly authorized [governmental] policy.” Ortez v. Wash. County, 88 F.3d 804, 811

12

(9th Cir. 1996) (citation and quotations omitted) (alteration in original). “[L]ocal governments,

13

like any other § 1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant

14

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

15

the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91.

16

Plaintiff also appears to have named one or more district attorneys as defendants. To the

17

extent plaintiff seeks to pursue claims under § 1983 against prosecutorial defendants, plaintiff is

18

hereby informed that “[p]rosecutors are absolutely immune from liability under § 1983 for their

19

conduct insofar as it is ‘intimately associated’ with the judicial phase of the criminal process.”

20

Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005) (quoting Imbler v. Pachtman, 424 U.S.

21

409, 430 (1976)). Prosecutors are fully protected by absolute immunity when performing

22

traditional activities related to the initiation and presentation of criminal prosecutions. Imbler,

23

424 U.S. at 430-31; Botello, 413 F.3d at 976 (it is “well established that a prosecutor has

24

absolute immunity for the decision to prosecute a particular case.”). Thus, even charges of

25

malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment

26

of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v.
4

1
2

Rifkin, 608 F. Supp. 710, 728 (N.D. Cal. 1984).
Additionally, the court notes that plaintiff has named the People of the State of California

3

as a defendant. Plaintiff may not pursue claims against this defendant, as it is not a “person” for

4

purposes of § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); see also

5

Allison v. California Adult Authority, 419 F.2d 822, 823 (9th Cir. 1969) (state agency such as

6

San Quentin State Prison is not a person within meaning of Civil Rights Act).

7

Plaintiff also purports to allege violations of the Racketeer Influenced and Corrupt

8

Organizations Act (“RICO”), 18 U.S.C. § 1962. To state a civil claim for violation of RICO, a

9

plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering

10

activity (5) causing injury to plaintiff's business or property. Chaset v. Fleer/Skybox Int’l, 300

11

F.3d 1083, 1086 (9th Cir. 2002). The phrase “racketeering activity” is defined as including any

12

act which is indictable under a lengthy list of criminal offenses, including the federal statutes

13

prohibiting mail and wire fraud. Here, plaintiff’s conclusory allegations do not state a claim

14

under RICO “that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

15

Plaintiff is granted leave to file an amended complaint to cure the deficiencies identified

16

herein, if possible. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district

17

courts must afford pro se litigants an opportunity to amend to correct any deficiency in their

18

complaints). Should plaintiff choose to file an amended complaint, he shall identify all

19

defendants in both the caption and the body of the amended complaint, and clearly set forth the

20

allegations against each defendant. He shall also specify a basis for this court’s subject matter

21

jurisdiction.

22

Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

23

make an amended complaint complete. Local Rule 220 requires that an amended complaint be

24

complete in itself. This is because, as a general rule, an amended complaint supersedes the

25

original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

26

plaintiff files an amended complaint, the original no longer serves any function in the case.
5

1

Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

2

alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

3

1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

4

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

5

Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

6

Procedure, this court’s Local Rules, or any court order may result in a recommendation that this

7

action be dismissed. See Local Rule 110.

8

Accordingly, IT IS ORDERED that:

9

1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

10

2. Plaintiff’s complaint is dismissed with leave to amend.

11

3. Plaintiff is granted thirty days from the date of service of this order to file an amended

12

complaint. The amended complaint must bear the docket number assigned to this case and must

13

be labeled “Amended Complaint.” Failure to timely file an amended complaint in accordance

14

with this order will result in a recommendation this action be dismissed.

15

DATED: April 15, 2011.

16
17
18
19
20
21
22
23
24
25
26
6