John v. County of Sacramento

Filing 7

ORDER signed by Magistrate Judge Deborah Barnes on 4/20/17 ORDERING that the Amended Complaint filed 12/22/17 6 is DISMISSED with leave to amend. Within twenty-eight days from the date of this order, a second amended complaint shall be filed that cures the defects noted in this order and complies with the FRCP and the Local Rules of Practice. Failure to comply with this order in a timely manner may result in a recommendation that this action be dismissed. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN JOHN, 12 Plaintiff, 13 14 No. 2:16-cv-1640 JAM DB PS v. ORDER COUNTY OF SACRAMENTO, 15 Defendant. 16 Plaintiff, John John, is proceeding in this action pro se. This matter was referred to the 17 18 undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court is plaintiff’s amended complaint and motion to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. (ECF Nos. 5 & 6.) Therein, plaintiff complains about an illegally 21 obtained search warrant. The court is required to screen complaints brought by parties proceeding in forma 22 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons 25 stated below, plaintiff’s amended complaint will be dismissed with leave to amend. 26 I. 27 28 Plaintiff’s Application to Proceed In Forma Pauperis Plaintiff’s in forma pauperis application makes the financial showing required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 1 1 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 2 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 3 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 4 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 5 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 6 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 7 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 8 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 9 District Court to examine any application for leave to proceed in forma pauperis to determine 10 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 11 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 12 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 13 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 14 state a claim on which relief may be granted, or seeks monetary relief against an immune 15 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 16 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 17 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 18 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 19 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 20 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 21 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 22 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 23 true the material allegations in the complaint and construes the allegations in the light most 24 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 25 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 26 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 27 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 28 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 2 1 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 2 The minimum requirements for a civil complaint in federal court are as follows: 3 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 4 5 6 Fed. R. Civ. P. 8(a). 7 II. 8 Plaintiff’s Complaint Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing 9 that plaintiff is entitled to relief. In this regard, plaintiff’s complaint alleges that this “action is 10 brought pursuant to 42 U.S.C. section 1983,” against the County of Sacramento. (Am Compl. 11 (ECF No. 5) at 1.) 12 A municipality may be liable under § 1983 where the municipality itself causes the 13 constitutional violation through a “policy or custom, whether made by its lawmakers or those 14 whose edicts or acts may fairly be said to represent official policy[.]” Monell v. Department of 15 Social Services, 436 U.S. 658, 694 (1978). Municipal liability in a § 1983 case may be premised 16 upon: (1) an official policy; (2) a “longstanding practice or custom which constitutes the standard 17 operating procedure of the local government entity;” (3) the act of an “official whose acts fairly 18 represent official policy such that the challenged action constituted official policy;” or (4) where 19 “an official with final policy-making authority delegated that authority to, or ratified the decision 20 of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). 21 Here, the compliant fails to contain sufficient allegations of underlying facts. Specifically, 22 the complaint simply alleges in a vague and conclosury manner that the defendant was 23 “implementing official policies under color of state law or local law in doing the acts alleged in 24 this complaint.” (Am. Compl. (ECF No. 5) at 2.) To sufficiently plead a Monell claim, 25 allegations in a complaint “may not simply recite the elements of a cause of action, but must 26 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing 27 party to defend itself effectively.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 28 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). In this regard, the 3 1 amended complaint fails to identify any official policy of the County of Sacramento that is 2 allegedly wrongful. 3 Plaintiff’s amended complaint also alleges that defendant Joyce Thorgrimson, an 4 employee of the County of Sacramento, “obtained a search warrant by making false statements of 5 fact in the affidavit supporting the application for the search warrant in March, 2014.” (Am. 6 Compl. (ECF No. 5) at 2.) “It is clearly established that judicial deception may not be employed 7 to obtain a search warrant.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (citing Franks v. 8 Delaware, 438 U.S. 154, 155-56 (1978)). 9 To support a claim for judicial deception, “a § 1983 plaintiff must show that the 10 investigator ‘made deliberately false statements or recklessly disregarded the truth in the 11 affidavit’ and that the falsifications were ‘material’ to the finding of probable cause.” Galbraith 12 v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002) (quoting Hervey v. Estes 65 F.3d 13 784, 790 (9th Cir. 1995)). “‘Omissions or misstatements resulting from negligence or good faith 14 mistakes will not invalidate an affidavit which on its face establishes probable cause.’” Ewing v. 15 City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009) (quoting United States v. Smith, 588 F.2d 16 737, 740 (9th Cir. 1978)). Here, plaintiff’s amended complaint simply alleges that defendant 17 Thorgrimson made false statements. Moreover, the amended complaint fails to clearly explain 18 how the allegedly false statements were material to the finding of probable cause. 19 Plaintiff is advised that an additional hurdle implicated by the allegations found in the 20 amended complaint is that the statute of limitations for a § 1983 claim arising in California is two 21 years. See Wallace v. Kato, 549 U.S. at 384, 387 (2007); Colony Cove Props., LLC v. City of 22 Carson, 640 F.3d 948, 956 (9th Cir. 2011) (applying California’s two-year statute of limitations to 23 § 1983 action). In this regard, the amended complaint alleges that the actions at issue occurred in 24 March of 2014. This action was not filed until July of 2016. 25 Accordingly, plaintiff’s amended complaint will be dismissed for failure to state a 26 cognizable claim. 27 //// 28 //// 4 1 III. Leave to Amend 2 The undersigned has carefully considered whether plaintiff may further amend the 3 complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to 4 amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg. 5 Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake 6 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that 7 while leave to amend shall be freely given, the court does not have to allow futile amendments). 8 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be 9 dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in 10 support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 11 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972); see also Weilburg v. 12 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 13 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 14 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 15 1988)). 16 Here, given the extremely vague and conclusory nature of the complaint’s allegations, the 17 undersigned cannot yet say that it appears beyond doubt that further leave to amend would be 18 futile. Plaintiff’s amended complaint will therefore be dismissed, and plaintiff will be granted 19 leave to file a second amended complaint. Plaintiff is cautioned, however, that if plaintiff elects 20 to file a second amended complaint “the tenet that a court must accept as true all of the 21 allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of 22 the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 23 Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they 24 must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the 25 claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. 26 at 557). 27 28 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an amended complaint complete. Local Rule 220 requires that any amended complaint be complete 5 1 in itself without reference to prior pleadings. The second amended complaint will supersede the 2 amended complaint just as the amended complaint superseded the original complaint. See Loux 3 v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended complaint, just as if it were 4 the initial complaint filed in the case, each defendant must be listed in the caption and identified 5 in the body of the complaint, and each claim and the involvement of each defendant must be 6 sufficiently alleged. Any second amended complaint which plaintiff may elect to file must also 7 include concise but complete factual allegations describing the conduct and events which underlie 8 plaintiff’s claims. 9 IV. Conclusion 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The amended complaint filed December 22, 2016 (ECF No. 6) is dismissed with leave 12 to amend. 1 13 2. Within twenty-eight days from the date of this order, a second amended complaint 14 shall be filed that cures the defects noted in this order and complies with the Federal Rules of 15 Civil Procedure and the Local Rules of Practice. 2 The second amended complaint must bear the 16 case number assigned to this action and must be titled “Second Amended Complaint.” 17 3. Failure to comply with this order in a timely manner may result in a recommendation 18 that this action be dismissed. 19 DATED: April 20, 2017 20 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 24 DLB:6 DB/orders/ se/john1640.dism.lta2.ord 25 26 27 28 1 Plaintiff need not file another application to proceed in forma pauperis at this time unless plaintiff’s financial condition has improved since the last such application was submitted. 2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure. 6

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