Hedrick v. District Attorney Office et al

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 10/31/13: Plaintiff's first amended complaint is dismissed. Plaintiff is granted thirty days from the date of service of this order to file a second amended complaint that complies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VICTOR HEDRICK,

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No. 2:13-cv-1292 KJM AC PS

Plaintiff,
v.

ORDER

DISTRICT ATTORNEY OFFICE, et al.,

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Defendants.

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Plaintiff, presently incarcerated at Butte County Jail, is proceeding in pro per and in forma

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pauperis in this action pursuant to 42 U.S.C. § 1983. On July 17, 2013, the undersigned

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dismissed plaintiff’s complaint and granted him leave to file an amended complaint. Plaintiff has

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now filed an amended complaint.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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

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§ 1915(e)(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 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where 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.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 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).
In the first amended complaint (“FAC”), plaintiff describes three specific encounters with

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Butte County Sheriff’s deputies in May and June 2013 that concern allegedly unlawful searches

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and seizures. Plaintiff, however, does not name any of these officers as defendants in this action.

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Instead, plaintiff names the Butte County Superior Court, the Butte County District Attorney’s

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Office, and the Butte County Sheriff’s Department for targeting and harassing him from 1995

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through 2013.

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As to the Butte County Superior Court, plaintiff describes an incident in 1996 when an

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unidentified Butte County Superior Court judge made an improper ruling from the bench. See

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ECF No. 6 at 5-6. “Judges are immune from damage actions for judicial acts taken within the

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jurisdiction of their courts. . . . Judicial immunity applies however erroneous the act may have

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been, and however injurious in its consequences it may have proved to the plaintiff.” Ashelman

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v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). A judge can lose his or her immunity when acting

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in clear absence of jurisdiction, but one must distinguish acts taken in error or acts that are

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performed in excess of a judge’s authority (which remain absolutely immune) from those acts

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taken in clear absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 12-13 (1991) (“If judicial

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immunity means anything, it means that a judge will not be deprived of immunity because the

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action he took was in error. . . or was in excess of his authority.”) Thus, for example, in a case

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where a judge actually ordered the seizure of an individual by means of excessive force, an act
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clearly in excess of his legal authority, he remained immune because the order was given in his

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capacity as a judge and not with the clear absence of jurisdiction. Id.; see also Ashelman, 793

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F.2d at 1075 (“A judge lacks immunity where he acts in the clear absence of all jurisdiction...or

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performs an act that is not judicial in nature.”) Therefore, plaintiff’s claim directed to the Butte

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County Superior Court, which appears to be based entirely on this single judge’s erroneous

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ruling, must be dismissed.

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Similarly, plaintiff’s claim against the Butte County District Attorney’s office must be

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dismissed. Prosecutors are absolutely immune from liability under § 1983 when engaged in

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initiating a prosecution or presenting the state’s case. Imbler v. Pachtman, 424 U.S. 409, 431

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(1976); accord Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2615 (1993). This immunity is

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necessary to assure that they can perform their function without harassment or intimidation. Fry

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v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991). If the prosecutor is performing acts “intimately

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associated with the judicial phase” of the litigation, he is entitled to absolute immunity from

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damage liability. Id. (citation omitted). Plaintiff’s allegation that the District Attorney’s Office

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misrepresented the number of strikes against plaintiff entails acts or omissions entitled to absolute

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immunity. Plaintiff’s § 1983 allegations as to this defendant shall accordingly be dismissed.
Lastly, plaintiff’s claims against the Butte County Sheriff’s Department1 must also be

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dismissed. This is because, as presently worded, plaintiff’s claim rests on a theory of respondeat

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superior or vicarious liability, which cannot be a basis for a Section 1983 claim. See Monell v.

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Dep’t of Soc. Servs., 436 U.S. 658, 691-94 (1978). In order to prevail on his claim against the

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Sheriff’s Department, plaintiff must identify a specific policy or practice as the “moving force”

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behind the alleged civil rights violation. Id. 694. Therefore, this claim must be dismissed.

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Plaintiff will however be granted leave to amend as to this defendant.

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If plaintiff chooses to amend the first amended complaint, plaintiff must set forth the

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jurisdictional grounds upon which the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further,

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plaintiff must demonstrate how the conduct complained of has resulted in a deprivation of

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Plaintiff also asserts a claim as to the Butte County Jail, though there are no charging allegations
as to this entity.
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plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must

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allege in specific terms how each named defendant is involved. There can be no liability under §

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1983 unless there is some affirmative link between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362 (9176); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each 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 first amended complaint is dismissed; and

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint that complies with the requirements of the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”;

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plaintiff must file an original and two copies of the second amended complaint; failure

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to file a second amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed.

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DATED: October 31, 2013

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