Gardner v. Six Flags Discovery Kingdom et al

Filing 31

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/7/2018 ORDERING that the courts June 7, 2018 findings and recommendations 27 recommending dismissal for failure to file a timely amended complaint are VACATED. RECOMMENDING that this action be dismissed without leave to amend and the Clerk be directed to close the case. Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Cannarozzi, N)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DENNIS GARDNER, 11 Plaintiff, 12 13 14 No. 2:15-cv-2085-WBS-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS SIX FLAGS DISCOVERY KINGDOM, et al., Defendants. 15 16 17 Plaintiff, who proceeds pro se and in forma pauperis, has submitted a third amended 18 complaint. ECF No. 30. The court must screen it. 19 Screening Requirements 20 The court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity.1 28 U.S.C. § 1915A(a). 22 23 24 25 26 27 28 1 From plaintiff’s current address, it appears that he is no longer incarcerated. Nevertheless, given that he is proceeding in forma pauperis, he remains subject to the screening requirement under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Under § 1915(e)(2)(B)(i)-(iii), “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” This provision applies to all actions filed in forma pauperis, whether or not the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam). 1 1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 § 1915A(b)(1), (2). 5 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 6 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 7 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 8 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 9 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 10 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 11 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 12 has an arguable legal and factual basis. Id. 13 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 14 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 15 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 16 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 17 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 18 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 19 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 20 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 21 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 22 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, 1216 (3d 23 ed. 2004)). 24 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 25 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 26 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 27 that allows the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 2 1 under this standard, the court must accept as true the allegations of the complaint in question, 2 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 3 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 4 McKeithen, 395 U.S. 411, 421 (1969). 5 Screening Order 6 Plaintiff’s third amended complaint fails to state a cognizable claim. He offers only the 7 conclusory allegation that, on January 2, 2014, he was detained at Six Flags Discovery Kingdom 8 by defendant Messina – who was employed by the Vallejo Police Department. ECF No. 30 at 3. 9 Plaintiff claims that Messina searched him and some unidentified property was taken from him. 10 Id. Finally, he alleges that a charge of petty theft was brought against him, but ultimately 11 dismissed. Id. 12 These alleged facts simply do not give rise to any constitutional violation. The mere fact 13 of plaintiff’s detention by Messina is not, without more, a violation of his rights.2 And any claim 14 against Six Flags – absent some indication that it was acting under color of state law - is non- 15 cognizable in an action brought pursuant to section 1983. See Lugar v. Edmondson Oil Co., 457 16 U.S. 922, 937 (1982) (conduct of a private entity is state action only where there is: (1) the 17 exercise of a state-created right, privilege, or rule of conduct (state policy); and (2) an actor who 18 is either a state official, one who has acted together with a state official or has obtained significant 19 aid therefrom, or one whose conduct is otherwise chargeable to the state (state actor)). 20 ///// 21 2 22 23 24 25 26 27 28 To the extent plaintiff is implying that the subsequent dismissal of his petty theft charge renders the arrest itself unlawful, he is incorrect. See, e.g., Davis v. Cnty. of San Bernardino, 2009 U.S. Dist. LEXIS 106659, 2009 WL 3838287, at *5 (C.D. Cal. Nov. 13, 2009) (citations omitted) (“Regardless of the reasons initially given for making an arrest, an arrest is valid as long as there is probable cause to arrest for any offense.”). Crucially, plaintiff has not alleged facts indicating that no probable cause existed for Messina to arrest plaintiff. The court notes that it is unclear whether plaintiff was arrested or subjected to a Terry detention by Messina. If it was the latter, only reasonable suspicion was required. See, e.g., United States v. Arvizu, 534 U.S. 266, 273-74 (2002). Regardless, plaintiff does not allege the absence of reasonable suspicion. His only contention appears to be that the petty theft charge that was subsequently brought against him was ultimately dismissed. 3 1 2 Leave to Amend This is plaintiff’s third amended complaint and he has yet to state any viable claim. This 3 counsels against granting him further leave to amend. See Allen v. City of Beverly Hills, 911 F.2d 4 367, 373 (9th Cir. 1990) (futility of amendment and previous opportunities to amend are factors 5 to assess in weighing the propriety of granting leave to amend). 6 Conclusion 7 Accordingly, it is hereby ORDERED that the court’s June 7, 2018 findings and 8 recommendations (ECF No. 27) recommending dismissal for failure to file a timely amended 9 complaint are VACATED and it is RECOMMENDED that this action be dismissed without leave 10 to amend and the Clerk be directed to close the case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 objections shall be served and filed within fourteen days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 19 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: August 7, 2018. 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?