Majstoric v. Sacramento County Sheriff's Department et al

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 10/18/2011 ORDERING that pltf's 10 amended cmplt is DISMISSED; the clerk is to send pltf a form for filing a civil rights cmplt; pltf may choose (A) w/in 30 days, to complete and return the Notice of Amendment w/ the required documents, or (B) elect to proceed on the 1 original cmplt by indicating on the Notice of Amendment and provide the service documents identified in the 9/13/11 court order. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANKO MAJSTORIC,

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Plaintiff,

No. 2:11-cv-2006 KJN P

vs.
SACRAMENTO COUNTY
SHERIFF’S DEPT., et al.,

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Defendants.

ORDER
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Plaintiff is a Sacramento County Jail inmate, proceeding without counsel, and in

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forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was

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referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. By order filed

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September 13, 2011, plaintiff was ordered to provide forms for service of process, or delay

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service of process and attempt to amend the complaint. On October 6, 2011, plaintiff filed an

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amended complaint. (Dkt. No. 10.)

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The court is required to screen complaints brought by prisoners seeking relief

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

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1),(2).

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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

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,

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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept

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as true the allegations of the complaint in question, id., and construe the pleading in the light

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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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First, plaintiff’s amended complaint is not on this court’s form, and therefore does

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not provide the information necessary to proceed in this case. Although plaintiff renews his

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claim that defendant Tomen “illegally tazed, assaulted, and searched [plaintiff], and broke [his]

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jaw,” plaintiff does not include the details alleged in the original complaint, including the date of
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the alleged incident. Plaintiff will be granted leave to amend to include the allegations pled in

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the original complaint. Plaintiff should also include his statement that a judge dismissed all

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charges based on the allegedly illegal search and seizure.1 Public state court records reflect

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plaintiff is housed in the Sacramento County Jail, cross reference number 1294266, pending

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felony criminal charges for, inter alia, possession for sale of a controlled substance, in violation

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of California Health & Safety Code § 11378, and sale of ammunition, in violation of California

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Penal Code § 12316(B)(1).2 Plaintiff’s trial is presently set for November 22, 2011.

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Second, plaintiff attempts to state a claim against the Sacramento County Sheriff’s
Department. Plaintiff alleges that he was illegally held after his allegedly illegal arrest, and

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required to pay $130,000.00 bail, for which plaintiff seeks reimbursement. However, plaintiff

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does not set forth what constitutional rights he claims these alleged actions violated. Rather, it

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appears plaintiff is attempting to raise state law claims against the Sacramento County Sheriff’s

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Department. But plaintiff’s allegation is vague and conclusory, and does not place defendant on

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notice of what state laws plaintiff alleges were violated.

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Moreover, California's Tort Claims Act requires that a tort claim against a public

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entity or its employees be presented to the California Victim Compensation and Government

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Claims Board, formerly known as the State Board of Control, no more than six months after the

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Plaintiff is cautioned that if he was convicted of an offense as a result of this incident,
he may not challenge the lawfulness of the conviction under section 1983. When a prisoner
challenges the legality or duration of his custody, or raises a constitutional challenge which could
entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Wilkinson v.
Dotson, 544 U.S. 74 (2005). When seeking relief for an allegedly unconstitutional conviction or
imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A claim . . .
bearing that relationship to a conviction or sentence that has not been so invalidated is not
cognizable under § 1983.” Id. at 488.
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This information was obtained from the Superior Court of California, County of
Sacramento, Court Index System, https://services.saccourt.com/ indexsearchnew/
CriminalSearchV2.aspx (accessed October 17, 2011).
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cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of

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a written claim, and action on or rejection of the claim are conditions precedent to suit. State v.

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Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (2004); Mangold v. California

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Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public

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employee, a plaintiff must allege compliance with the Tort Claims Act. State v. Superior Court,

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32 Cal.4th at 1245, 13 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477.

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Here, plaintiff failed to allege compliance with the Tort Claims Act in the

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amended complaint. Because plaintiff has failed to allege compliance with the Tort Claims Act,

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these claims are dismissed for failure to state a claim, but the dismissal will be without prejudice

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should plaintiff be able to demonstrate timely filing of the tort claims. However, if plaintiff is

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unable to allege compliance with the Torts Claim Act, plaintiff may elect to proceed on the

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original complaint as to defendant Tomen only. If plaintiff chooses to proceed on the original

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complaint, the election will be deemed as plaintiff’s consent to the dismissal of the Sacramento

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County Sheriff’s Department, and plaintiff should submit the service forms as required by this

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court’s September 13, 2011 order.

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The court finds the allegations in plaintiff’s amended complaint so vague and

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conclusory that it is unable to determine whether the current action is frivolous or fails to state a

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claim for relief. The court has determined that the amended complaint does not contain a short

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and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a

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flexible pleading policy, a complaint must give fair notice and state the elements of the claim

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plainly and succinctly. Jones v. Cmty Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support plaintiffs claim. Id. Because plaintiff has failed to comply with the

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requirements of Fed. R. Civ. P. 8(a)(2), the amended complaint must be dismissed. The court

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will, however, grant leave to file a second amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.

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Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the amended complaint must allege in specific

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terms how each named defendant is involved. Id. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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In addition, plaintiff is hereby informed that the court cannot refer to a prior

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pleading in order to make plaintiff’s second amended complaint complete. Local Rule 220

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requires that a second amended complaint be complete in itself without reference to any prior

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pleading. This requirement exists because, as a general rule, a second amended complaint

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

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plaintiff files a second amended complaint, the original pleading no longer serves any function in

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the case. Therefore, in a second amended complaint, as in an original complaint, each claim and

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the involvement of each defendant must be sufficiently alleged.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint is dismissed.

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2. The Clerk of the Court is directed to send plaintiff the form for filing a civil

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rights complaint pursuant to 42 U.S.C. § 1983.

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3. Plaintiff may choose one of the following options:

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A. Within thirty days from the date of this order, plaintiff shall complete
the attached Notice of Amendment and submit the following documents to the court:

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i. The completed Notice of Amendment; and
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ii. An original and one copy of the Second Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Or,

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B. Plaintiff may elect to proceed on the original complaint. If plaintiff

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chooses this option, he shall so indicate on the Notice of Amendment and provide the service

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documents identified in this court’s September 13, 2011 order. If plaintiff chooses this option,

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plaintiff’s election will be viewed as his consent to dismiss the Sacramento County Sheriff’s

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Department as a defendant.

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4. Failure to timely comply with this order may result in the dismissal of this

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action.

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DATED: October 18, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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majs2006.14

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANKO MAJSTORIC,

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Plaintiff,

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No. 2:11-cv-2006 KJN P

vs.
SACRAMENTO COUNTY
SHERIFF’S DEPT., et al.,

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Defendants.

NOTICE OF SUBMISSION OF DOCUMENTS

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Plaintiff hereby submits the following documents in compliance with the court's
order filed

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completed summons form

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completed forms USM-285

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copies of the
Original Complaint

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_____ Plaintiff consents to the dismissal of defendant
Sacramento County Sheriff’s Department without
prejudice.

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OR

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_____ Plaintiff opts to file a second amended complaint and delay service of
process.

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Dated:
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Plaintiff