Flores v. California Highway Patrol et al

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 9/20/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action; Plaintiff's complaint is DISMISSED with 30 days to file an amended complaint.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY FLORES,

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Plaintiff,

No. 2: 11-cv-2446 KJN P

vs.
CALIFORNIA HIGHWAY PATROL,
et al.,

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Defendants.

ORDER

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Plaintiff is a prisoner proceeding without counsel. Plaintiff seeks relief pursuant

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to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local

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Rule 302.

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Plaintiff has submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court

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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison
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trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to

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make monthly payments of twenty percent of the preceding month’s income credited to

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plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to

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the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing

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fee is paid in full. 28 U.S.C. § 1915(b)(2).

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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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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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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Named as defendants are the California Highway Patrol and the Sacramento

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County Sheriff’s Department. Plaintiff alleges that “[a]n officer tazed me when I was

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cooperating and getting on the ground as ordered.” As relief, plaintiff seeks money damages.

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To allege a section 1983 claim against a local governmental entity such as the

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Sacramento County Sheriff’s Department, plaintiff must allege a constitutional deprivation and a

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policy, custom, or practice of the Sacramento County Sheriff’s Department that was the “moving

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force” of the constitutional deprivation. Monell v. Department of Social Services, 436 U.S. 658,

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694–95 (1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008).

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Plaintiff does not allege that he was tased pursuant to a policy, custom or practice of defendant

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Sacramento County Sheriff’s Department. Accordingly, the claims against this defendant are

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dismissed with leave to amend. Conversely, plaintiff may seek to name as a defendant the

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individual officer who allegedly tased plaintiff, if plaintiff can allege a claim against that officer.

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Plaintiff’s claims against defendant California Highway Patrol are barred by the

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Eleventh Amendment. The Eleventh Amendment prohibits federal courts from hearing suits

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brought against a state by its own citizens or citizens of other states. Brooks v. Sulphur Springs

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Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). “[A]bsent a waiver by the state or a

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valid congressional override, the Eleventh Amendment bars a damages action against a state in

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federal court.” Kentucky v. Graham, 473 U.S. 159, 169 (1985).
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The Eleventh Amendment’s prohibition applies not only to states, but also to state

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agencies. E.g., Lucas v. Dep’t. of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)

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(holding that claims against the California Department of Corrections were barred by state

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immunity).

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Various courts, including the undersigned, have concluded that the California

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Highway Patrol is an arm of the state for the purposes of the Eleventh Amendment; thus, the

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California Highway Patrol enjoys sovereign immunity. See McCain v. California Highway

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Patrol, 2011 WL 3439225, at * 3 (E.D. Cal. Aug. 4, 2011) (unpublished); Oremus v. Cal.

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Highway Patrol, 2010 WL 2817072, at *1–2 (E.D. Cal. July 15, 2010) (unpublished); May v.

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Cal. Highway Patrol, 2010 WL 234868, at *1 (N.D. Cal. Jan.14, 2010) (unpublished); Townsend

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v. California, 2010 WL 1644740, at *6 (E.D. Cal. Apr.21, 2010) (unpublished); Vierria v. Cal.

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Highway Patrol, 644 F.Supp.2d 1219, 1232 (E.D. Cal.2009); Heymann v. State, 1999 WL

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638205, at *1–2 (N.D. Cal. Aug.16, 1999) (unpublished); Guzman v. Van Demark, 651 F.Supp.

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1180, 1183 (C.D. Cal.1987). The State of California has not consented to suit here, and the

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California Highway Patrol is a state agency that enjoys Eleventh Amendment immunity.

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Accordingly, the claims against this defendant are dismissed. Plaintiff should not name the

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California Highway Patrol as a defendant in an 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 complaint must allege in specific terms

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how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983

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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 amended complaint complete. Local Rule 220 requires that

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an amended complaint be complete in itself without reference to any prior pleading. This

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requirement exists because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an

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amended complaint, as in an original complaint, each claim and the involvement of each

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defendant must be sufficiently alleged.

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In accordance with the above, IT IS HEREBY ORDERED that:

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

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Sacramento County Sheriff’s Department filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the

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attached Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the 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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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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DATED: September 20, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY FLORES,

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Plaintiff,

No. 2: 11-cv-2446 KJN P

vs.
CALIFORNIA HIGHWAY PATROL,
et al.,

NOTICE OF AMENDMENT

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Defendants.
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Plaintiff hereby submits the following document in compliance with the court's
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order filed

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Amended Complaint

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DATED:
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Plaintiff
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