Anderson v. Sacramento Police Department et al

Filing 3

ORDER granting plaintiff's 2 Motion to Proceed IFP, signed by Magistrate Judge Gregory G. Hollows on 6/1/16. The complaint is dismissed with leave to file an amended complaint within 28 days from the date of service of this Order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT PAUL ANDERSON,

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No. 2:16-cv-0527 TLN GGH PS

Plaintiff,
v.

ORDER

SACRAMENTO POLICE
DEPARTMENT, et al.,
Defendants.

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Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule

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302(21), pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. §
1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.
The determination that plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at

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any time if it determines the allegation of poverty is untrue, or if the action is frivolous or

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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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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. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a cause of

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action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Id.

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Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92

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S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff

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proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal.

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See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

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The complaint alleges that on March 11, 2014, plaintiff was confronted by Arel

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Cummings, a neighbor, who gestured to petitioner under his coat as if he had a firearm. In

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response, plaintiff drew his own weapon and charged it. Plaintiff was thereafter arrested for

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“brandishing a weapon NOT in self-defense.” (ECF No. 1 at 6.) Plaintiff has sued a litany of

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individuals and entities over this event, and is seeking relief under 42 U.S.C. § 1983. Plaintiff

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seeks $40 million in damages.

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Other than cursory references to the Constitution for defendants Sacramento Police
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Department (First, Second and Fourth Amendment), Sacramento Sheriff’s Department (Fourth

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Amendment), and Sacramento County Public Defender’s Office (Sixth Amendment), the

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complaint contains no claims for relief against any other defendants. There is only one allegation

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in the complaint, that “subsequent actions and inactions by the defendants have caused irreparable

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harm and injury.” (ECF No. 1 at 7.) This assertion is merely a bald conclusion and fails to state a

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plausible claim for any of the grounds alleged.

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In regard to individual defendants Cummings, Thornhill, and Baltierra, the complaint does
not mention them, other than in the caption.

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits

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to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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To state a claim under § 1983, there must be state action by defendant. Gritchen v.

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Collier, 254 F.3d 807, 812 (9th Cir. 2001). Although a private individual may be liable under §

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1983 if he conspires with state actors to violate plaintiff’s rights, Franklin v. Fox, 312 F.3d 423,

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441 (9th Cir. 2002), plaintiff has not made such an allegation against defendants Cummings,

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Thornhill, and Baltierra. Plaintiff will be provided leave to amend his complaint to allege that

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these defendants conspired with or entered joint action with any of the other state actor

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defendants. If plaintiff does so amend his complaint, he must allege the specific facts of the

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conspiracy, as well as all of the facts surrounding the alleged false arrest. The complaint as

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written contains no allegations whatsoever against defendants Cummings, Thornhill, and
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Baltierra. Plaintiff is reminded that his claim for relief must contain sufficient factual matter to

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state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

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S.Ct. 1973, (2009). While this does not require detailed factual allegations, the claim must

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contain more than labels and conclusions or a formulaic recitation of the elements of a cause of

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action. See Bell Atlantic, 550 U.S. at 555. In short, the allegations must be sufficient to put

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defendant fairly on notice of the claims against it. See Richmond v. Nationwide Cassel L.P., 52

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F.3d 640, 645 (7th Cir.1995) (amended complaint with vague and scanty allegations fails to

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satisfy the notice requirement of Rule 8); 5 C. Wright & A. Miller, Federal Practice and

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Procedure § 1202 (2d ed.1990). Here, this means that plaintiff must say more than that he was

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“arrested after [he] called the police for allegedly ‘brandishing a weapon NOT in self-defense.’”

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See ECF No. 1 at 6. Rather, plaintiff must identify exactly what each defendant did to violate his

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rights, and why he thinks such action was unconstitutional.

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The requirement of a short and plain statement under Federal Rule of Civil Procedure 8

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means a complaint must include “sufficient allegations to put defendants fairly on notice of the

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claims against them.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991); 5 C. Wright & A.

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Miller, Federal Practice and Procedure § 1202 (2d ed. 1990). Accord Richmond v. Nationwide

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Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (amended complaint with vague and scanty

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allegations fails to satisfy the notice requirement of Rule 8.) Here, the complaint does not

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contain sufficient allegations to put defendants fairly on notice. See Conley v. Gibson, 355 U.S.

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41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957); Richmond v. Nationwide Cassel L.P., 52 F.3d

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640, 645 (7th Cir. 1995) (vague and scanty allegations fail to satisfy the notice requirement of

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Rule 8). Furthermore, the complaint is not simple, concise, or direct, as evidenced by its sheer

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length. See Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) (affirming dismissal of

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complaint exceeding 70 pages including attachments as confusing and conclusory).

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With respect to defendant judges Gilliard, White, Mullen, and Abbott, the Supreme Court

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has held that judges are absolutely immune from civil liability for damages for acts performed in

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their judicial capacity. Pierson v. Ray, 386 U.S. 547, 553–559, 87 S.Ct. 1213 (1967). An act is

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“judicial” when it is a function normally performed by a judge and the parties dealt with the judge
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in his judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099 (1978). A

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judge is “subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’”

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Stump v. Sparkman, 435 U.S. 349, 356–7, 98 S. Ct. 1099, 1105 (1978), quoting Bradley v.

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Fisher, 13 Wall. 335, 351, 20 L.Ed. 646 (1872). Therefore, these defendants will be dismissed

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without leave to amend.

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Furthermore, defendant “family relations court” must be dismissed based on sovereign

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immunity. See Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th

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Cir.1987) (“a suit against the Superior Court is a suit against the State, barred by the eleventh

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amendment”) (citation omitted). This is because judges and court employees are state, not

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county, employees. See Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161

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(9th Cir.2003) (superior courts and their employees are considered arms of the state for Eleventh

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Amendment purposes and are not liable under § 1983). This defendant will also be dismissed

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without leave to amend.

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Sacramento County District Attorney’s Office must also be dismissed. Prosecutors are

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absolutely immune from civil suits for damages under § 1983 which challenge activities related to

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the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 96

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S.Ct. 984 (1976). Determining whether a prosecutor's actions are immunized requires a

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functional analysis. The classification of the challenged acts, not the motivation underlying them,

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determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th Cir.1986)

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(en banc). The prosecutor's quasi-judicial functions, rather than administrative or investigative

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functions, are absolutely immune. Thus, even charges of malicious prosecution, falsification of

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evidence, coercion of perjured testimony and concealment of exculpatory evidence will be

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dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F.Supp. 710, 728

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(N.D.Cal.1984). This defendant will be dismissed without leave to amend.

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Plaintiff's court-appointed attorney cannot be sued under § 1983. See Polk County v.

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Dodson, 454 U.S. 312, 318–19, 102 S.Ct. 445 (1981) (public defenders do not act under color of

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state law for purposes of § 1983 when performing a lawyer's traditional functions). And any

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potential claims for legal malpractice do not come within the jurisdiction of the federal courts.
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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). The public defender will be dismissed

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without leave to amend.

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The Sacramento Police Department and the Sacramento County Sheriff’s Department are

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improper parties in this action. The term “persons” encompasses state and local officials sued in

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their individual capacities, private individuals, and entities which act under the color of state law

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and local governmental entities. Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 995–96

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(N.D.Cal.1996); Daniels v. Medical Servs. Div., 2015 WL 687113, at *3-4 (S.D. Cal. Feb. 18,

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2015). However, the Sacramento Police Department is a municipal department within the City of

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Sacramento and the Sacramento County Sheriff’s Department is it is merely a department of the

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County of Sacramento. These agencies are not, as a general matter, considered “persons” within

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the meaning of Section 1983. See United States v. Kama, 394 F.3d 1236, 1239 (9th Cir.2005)

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(“[M]unicipal police departments and bureaus are generally not considered ‘persons' within the

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meaning of Section 1983.”); Rodriguez v. Cnty. of Contra Costa, 2013 WL 5946112 at *3

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(N.D.Cal. Nov.5, 2013) (citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir.1995)) (“Although

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municipalities, such as cities and counties, are amenable to suit under Monell, sub-departments or

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bureaus of municipalities, such as the police departments, are not generally considered “persons”

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within the meaning of § 1983.”); Gonzales v. City of Clovis, 2013 WL 394522 (E.D.Cal. Jan.30,

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2013) (holding that the Clovis Police Department is not a “person” for purposes of Section 1983);

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Wade v. Fresno Police Dep't, 2010 WL 2353525 at *4 (E.D.Cal. June 9, 2010) (finding the

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Fresno Police Department to not be a “person” under Section 1983). Therefore, the Sacramento

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Police Department and the Sacramento County Sheriff’s Department will be dismissed without

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leave to amend.1

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On amendment, plaintiff shall name the City of Sacramento and the County of

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Sacramento if intends to proceed with these defendants as these entities are considered persons

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under § 1983. If plaintiff does name the City and County on amendment, he is instructed that he

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must nevertheless state a claim against these defendants.

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Plaintiff is advised that if he continues to name defendants who have been dismissed without
leave to amend in his amended complaint, they will be dismissed at a later time.
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The U.S. Supreme Court has held that local governmental entities, e.g., cities, counties,

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and local officers sued in their official capacity, are “persons” for purposes of section 1983,

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rendering them directly liable for constitutional violations if carried out pursuant to local policies

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or customs. McMillian v. Monroe County, 520 U.S. 781, 784-785, 117 S.Ct. 1734 (1997);

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Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-692, 98 S.Ct. 2018 (1978).

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Therefore, the City and the County may properly be considered persons under section 1983.

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Nevertheless, “a municipality cannot be held liable under § 1983 on a respondeat superior

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theory.” Monell, 436 U.S. at 691. “[A] municipality can be found liable under § 1983 only

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where the municipality itself causes the constitutional violation at issue. Respondeat superior or

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vicarious liability will not attach under § 1983.” Collins v. City of Harker Heights, 503 U.S. 115,

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123, 112 S.Ct. 1061 (1992) (original emphasis), citing Monell, 436 U.S. at 694-695. Thus, “a

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local government may not be sued under § 1983 for an injury inflicted solely by its employees or

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agents. Instead, it is when execution of a government's policy or custom, whether made by its

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lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

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the injury that the government as an entity is responsible under § 1983.” Monell, at 694. A local

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governmental entity may also “be liable if it had a policy or custom of failing to train its

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employees and that failure to train caused the constitutional violation. In particular ... the

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inadequate training of police officers could be characterized as the cause of the constitutional tort

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if-and only if-the failure to train amounted to ‘deliberate indifference’ to the rights of persons

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with whom the police come into contact.” Collins, 503 U.S. at 123-124 (fn.omitted), citing

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Canton v. Harris, 489 U.S. 378, 387, 388, 109 S.Ct. 1197(1989).

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“[L]ocal governments, like any other § 1983 ‘person,’ ... may be sued for constitutional

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deprivations visited pursuant to governmental ‘custom’ even though such a custom has not

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received formal approval through the body's official decisionmaking channels.” Monell, 436 U.S.

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at 690-91. “[P]laintiff must allege that the action inflicting injury flowed from either an explicitly

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adopted or a tacitly authorized city policy. Ibid.; Harris v. City of Roseburg, 664 F.2d 1121,

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1130, 1338 (9th Cir.1981) (“‘Official policy’ within the meaning of Monell [encompasses

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situations] where a municipality ‘impliedly or tacitly authorized, approved, or encouraged’ illegal
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conduct by its police officers.'”) (quoting Turpin v. Mailet, 619 F.2d 196, 201 (2nd Cir.), cert.

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denied, 449 U.S. 1016, 101 S.Ct. 577 (1980)).” Gibson v. U.S., 781 F.2d 1334, 1337-1338 (9th

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Cir.1986); see also, Ortez v. Washington Cty., 88 F.3d 804, 811 (9th Cir.1996). “Proof of a

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single incident of unconstitutional activity is not sufficient to impose liability under Monell,

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unless proof of the incident includes proof that it was caused by an existing, unconstitutional

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municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the

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existence of the unconstitutional policy, and its origin, must be separately proved. But where the

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policy relied upon is not itself unconstitutional, considerably more proof than the single incident

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will be necessary in every case to establish both the requisite fault on the part of the municipality,

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and the causal connection between the ‘policy’ and the constitutional deprivation.” City of

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Oklahoma City v. Tuttle, 471 U.S. 808, 823-824, 105 S.Ct. 2427, 2436 (1985).

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As currently pled, plaintiff has not made any allegations against the City or County for the actions

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of its officers. He references only the First, Second and Fourth Amendments against the

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Sacramento Police Department, and the Fourth Amendment against the Sacramento County

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Sheriff’s Department. (ECF No. 1 at 5.) A less stringent examination is afforded pro se

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pleadings, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594 (1972), but simple reference to

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federal law does not create subject matter jurisdiction. Avitts v. Amoco Prod. Co., 53 F.3d 690,

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694 (5th Cir.1995). Subject matter jurisdiction is created only by pleading a cause of action that

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is within the court's original jurisdiction. Id. See also Kennedy v. H & M Landing, Inc., 529 F.2d

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987, 989 (9th Cir.1976) (a pleading will not be sufficient to state a claim under § 1983 if the

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allegations are mere conclusions). Plaintiff's mere reference to the constitution and § 1983 is

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insufficient to state a claim upon which relief can be granted—for each federal statute, Plaintiff

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must actually explain what allegations support a violation.

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Therefore, if plaintiff intends to proceed against the City and the County, on amendment
he shall name these defendants and must comply with the authority outlined above.

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Plaintiff has named three officers as defendants, Sousza, Lariaux, and Mateo in the

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caption of this complaint, but he has failed to make any allegations against them, or even mention

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them elsewhere in the complaint. If plaintiff chooses to name these defendants in his amended
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complaint, he must follow the directives set forth in this order.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

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

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is some affirmative link or connection between a defendant's actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); 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). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board

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of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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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 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 Forsyth v. Humana,

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Inc., 114 F.3d 1467, 1474 (9th Cir.1997), overruled in part on other grounds, Lacey v. Maricopa

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County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). Once plaintiff files an amended complaint,

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the original pleading no longer serves an operative 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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Good cause appearing, IT IS ORDERED that:

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

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2. The complaint is dismissed for the reasons discussed above, with leave to file an

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amended complaint within twenty-eight (28) days from the date of service of this Order. The

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amended complaint must comply with the requirements of the Federal Rules of Civil Procedure,

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and the Local Rules of Practice; the amended complaint must bear the docket number assigned

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this case and must be labeled “Amended Complaint;” failure to file an amended complaint will

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result in a recommendation that this action be dismissed.

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Dated: June 1, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Anderson0527.amend

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