Swami v. District Attorney

Filing 12

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/13/2015 GRANTING plaintiff's 2 Motion to Proceed In Forma Pauperis. Plaintiff's 1 Complaint is DISMISSED with leave to amend. Plaintiff is GRANTED 30 days from date of service of Order in which to file an Amended Complaint. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SARAN SWAMI,

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No. 2:14-cv-844-TLN-EFB PS
Plaintiff,

v.

ORDER

DISTRICT ATTORNEY,

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Defendant.

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Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 His

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declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2.

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Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

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

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inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant.

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

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

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

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This case, in which plaintiff is proceeding in propria persona, was referred to the
undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).
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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41

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

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

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

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

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

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

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

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

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976),

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

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

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the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2)

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“requires a complaint to include a short and plain statement of the claim showing that the pleader

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

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

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

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction
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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Plaintiff’s complaint is nearly unintelligible. He asserts that he has predicted and

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observed the public killing and prosecution of victims by the County of Sacramento, claims that

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the county took control of a house he owned by suing him in state court, contends that this

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somehow led to the county causing “the killing of the occupant [of the house] by a fire,” and that

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defendant now wants to prosecute him. ECF No. 1 at 1.

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Plaintiff further alleges that he is represented by attorney Keith Oliver and that “Plaintiff’s

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[sic] was and is running the office of attorney Keith Oliver from his home.” On April 1, 2014,

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defendant allegedly came to plaintiff’s house and took his computer and legal documents.

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Plaintiff contends this act was a violation of the attorney-client privilege, litigation privilege,

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private attorney general privilege and his right to privacy. Id. at 2. He states that a “search

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warrant should be set aside, all the evidence should be suppressed and seized property should be

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returned.” Id. Plaintiff further claims that “State Courts do not allow [him] and his attorney to

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file any document[s]” and that “this court is the only court to provide any relief right now.” Id.

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The complaint purports to assert claim(s) pursuant to 42 U.S.C. § 1983 for depravation of his

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rights. Id. at 3.

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The most that can be gleaned from the complaint is that plaintiff appears to be alleging

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that he is the subject of an investigation in a state court proceeding, and that his due process rights

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were violated by an illegal search and seizure conducted by defendant. However, even that much

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is not clear. The complaint fails to allege a coherent statement of facts showing a cognizable

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claim. Assuming a section 1983 claim based on an unlawful search, “a § 1983 action alleging

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illegal search and seizure of evidence upon which criminal charges are based does not accrue

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until the criminal charges have been dismissed or the conviction has been overturned.” Harvey v.

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Walkdron , 2010 F.3d 1008, 1015 (9th Cir. 2000). Plaintiff’s complaint is devoid of any factual

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allegations concerning the illegal search and seizure and state court proceeding, and therefore the

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court cannot determine whether plaintiff may properly assert his claim at this time.
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Similarly, the complaint contains insufficient factual allegations to permit the court to

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determine whether plaintiff may bring his section 1983 claim against the named defendant,

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“District Attorney.”2 “Prosecutors are absolutely immune from liability under § 1983 for their

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

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Betello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005). The complaint alleges little more than

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plaintiff’s property was unlawfully seized pursuant to a search warrant the plaintiff believes to be

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invalid. Plaintiff, however, does not allege any facts demonstrating that defendant’s conduct was

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not intimately associated with the judicial phase of the criminal process. Indeed, it is unclear

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from complaint how the defendant was involved in the alleged unlawful seizure of plaintiff’s

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property.

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The complaint also references 42 U.S.C. § 1988. That section, however, does not create

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an independent cause of action. It is a provision allowing for the award of reasonable attorney’s

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and expert fees to the prevailing party in suits brought under certain causes of action created by

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other statutes; it does not itself create substantive rights, but merely defines procedures. Schroder

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v. Volcker, 864 F.2d 97, 99 (1988); 42 U.S.C. § 1988(b), (c). Because § 1988 does not provide

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any independent cause of action, any claim brought under this section must also be dismissed.

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In sum, plaintiff’s complaint does not contain a short and plain statement demonstrating

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that he is entitled to relief. See Twombly, 550 U.S. at 554. Therefore, the complaint will be

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dismissed. However, plaintiff is granted leave to file an amended complaint, if he can allege a

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basis for this court’s jurisdiction, as well as a cognizable legal theory and sufficient facts in

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support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000)

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(en banc) (district courts must afford pro se litigants an opportunity to amend to correct any

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deficiency in their complaints). Should plaintiff choose to file an amended complaint, the

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amended complaint shall clearly set forth the allegations against defendant and shall specify a

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basis for this court’s subject matter jurisdiction. Any amended complaint shall plead plaintiff’s

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claims in “numbered paragraphs, each limited as far as practicable to a single set of

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Although not stated in the caption, presumably the naming of “District Attorney” as the
defendant is a reference to the Sacramento County District Attorney.
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circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be in double-

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spaced text on paper that bears line numbers in the left margin, as required by Eastern District of

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California Local Rules 130(b) and 130(c). Any amended complaint shall also use clear headings

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to delineate each claim alleged and against which defendant or defendants the claim is alleged, as

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required by Rule 10(b), and must plead clear facts that support each claim under each header.

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

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

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

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

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

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

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

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

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to

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comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order

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may result in a recommendation that this action be dismissed. See Local Rule 110.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis, ECF No. 2, is granted.

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2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein.

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

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

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

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

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DATED: April 13, 2015.

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