Blackshire v. Sacramento County Sheriff

Filing 9

FINDINGS and RECOMMENDATIONS, recommending action be dismissed, signed by Magistrate Judge Carolyn K. Delaney on 7/24/2015. These Findings and Recommendations are SUBMITTED to District Judge Morrison C. England, Jr.. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK BLACKSHIRE,

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Plaintiff,

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v.

No. 2:15-cv-1123 MCE CKD PS

FINDINGS AND RECOMMENDATIONS

SACRAMENTO COUNTY SHERIFF,

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Defendant.

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Plaintiff is proceeding in this action pro se and in forma pauperis. Plaintiff has filed a

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third amended complaint.
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.

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007),

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and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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In this action, plaintiff alleges only state law claims against the Sacramento County

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Sheriff arising out of an allegedly delayed release from custody. Plaintiff was previously advised

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of the standards for stating a claim under 42 U.S.C. § 1983. ECF Nos. 5, 7. The third amended

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complaint does not cure the pleading deficiencies evident in the original complaint, first or second

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amended complaints. Plaintiff fails to demonstrate how the conduct of the named defendant

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resulted in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir.

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1980).

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Plaintiff has now filed four complaints in this action. The third amended complaint still

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fails to state a claim under section 1983 and, at best, alleges only a state law claim for negligence.

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Despite repeated opportunities to cure the deficiencies in his complaints, plaintiff has failed to do

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so. Moreover, it appears that further amendment would be futile.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 24, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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