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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN JOHN,

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Plaintiff,

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No. 2:16-cv-1640 JAM DB PS

v.

ORDER

COUNTY OF SACRAMENTO,

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Defendant.

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Plaintiff, John John, is proceeding in this action pro se. This matter was referred to the

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undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending

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before the court is plaintiff’s amended complaint and motion to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. (ECF Nos. 5 & 6.) Therein, plaintiff complains about an illegally

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obtained search warrant.
The court is required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Here, plaintiff’s amended complaint is deficient. Accordingly, for the reasons

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stated below, plaintiff’s amended complaint will be dismissed with leave to amend.

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I.

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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
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pauperis status does not complete the inquiry required by the statute. “‘A district court may deny

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leave to proceed in forma pauperis at the outset if it appears from the face of the proposed

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complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d

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1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th

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Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th

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Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed

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IFP because it appears from the face of the amended complaint that McGee’s action is frivolous

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or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the

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District Court to examine any application for leave to proceed in forma pauperis to determine

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whether the proposed proceeding has merit and if it appears that the proceeding is without merit,

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the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).

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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as

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true the material allegations in the complaint and construes the allegations in the light most

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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.

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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245

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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true

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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

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The minimum requirements for a civil complaint in federal court are as follows:

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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.

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Fed. R. Civ. P. 8(a).

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II.

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Plaintiff’s Complaint
Here, plaintiff’s complaint fails to contain a short and plain statement of a claim showing

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that plaintiff is entitled to relief. In this regard, plaintiff’s complaint alleges that this “action is

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brought pursuant to 42 U.S.C. section 1983,” against the County of Sacramento. (Am Compl.

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(ECF No. 5) at 1.)

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A municipality may be liable under § 1983 where the municipality itself causes the

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constitutional violation through a “policy or custom, whether made by its lawmakers or those

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whose edicts or acts may fairly be said to represent official policy[.]” Monell v. Department of

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Social Services, 436 U.S. 658, 694 (1978). Municipal liability in a § 1983 case may be premised

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upon: (1) an official policy; (2) a “longstanding practice or custom which constitutes the standard

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operating procedure of the local government entity;” (3) the act of an “official whose acts fairly

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represent official policy such that the challenged action constituted official policy;” or (4) where

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“an official with final policy-making authority delegated that authority to, or ratified the decision

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of, a subordinate.” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).

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Here, the compliant fails to contain sufficient allegations of underlying facts. Specifically,

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the complaint simply alleges in a vague and conclosury manner that the defendant was

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“implementing official policies under color of state law or local law in doing the acts alleged in

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this complaint.” (Am. Compl. (ECF No. 5) at 2.) To sufficiently plead a Monell claim,

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allegations in a complaint “may not simply recite the elements of a cause of action, but must

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contain sufficient allegations of underlying facts to give fair notice and to enable the opposing

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party to defend itself effectively.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637

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(9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). In this regard, the
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amended complaint fails to identify any official policy of the County of Sacramento that is

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allegedly wrongful.

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Plaintiff’s amended complaint also alleges that defendant Joyce Thorgrimson, an

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employee of the County of Sacramento, “obtained a search warrant by making false statements of

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fact in the affidavit supporting the application for the search warrant in March, 2014.” (Am.

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Compl. (ECF No. 5) at 2.) “It is clearly established that judicial deception may not be employed

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to obtain a search warrant.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (citing Franks v.

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Delaware, 438 U.S. 154, 155-56 (1978)).

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To support a claim for judicial deception, “a § 1983 plaintiff must show that the

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investigator ‘made deliberately false statements or recklessly disregarded the truth in the

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affidavit’ and that the falsifications were ‘material’ to the finding of probable cause.” Galbraith

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v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002) (quoting Hervey v. Estes 65 F.3d

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784, 790 (9th Cir. 1995)). “‘Omissions or misstatements resulting from negligence or good faith

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mistakes will not invalidate an affidavit which on its face establishes probable cause.’” Ewing v.

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City of Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009) (quoting United States v. Smith, 588 F.2d

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737, 740 (9th Cir. 1978)). Here, plaintiff’s amended complaint simply alleges that defendant

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Thorgrimson made false statements. Moreover, the amended complaint fails to clearly explain

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how the allegedly false statements were material to the finding of probable cause.

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Plaintiff is advised that an additional hurdle implicated by the allegations found in the

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amended complaint is that the statute of limitations for a § 1983 claim arising in California is two

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years. See Wallace v. Kato, 549 U.S. at 384, 387 (2007); Colony Cove Props., LLC v. City of

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Carson, 640 F.3d 948, 956 (9th Cir. 2011) (applying California’s two-year statute of limitations to

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§ 1983 action). In this regard, the amended complaint alleges that the actions at issue occurred in

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March of 2014. This action was not filed until July of 2016.

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Accordingly, plaintiff’s amended complaint will be dismissed for failure to state a

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cognizable claim.

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III.

Leave to Amend

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The undersigned has carefully considered whether plaintiff may further amend the

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complaint to state a claim upon which relief can be granted. “Valid reasons for denying leave to

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amend include undue delay, bad faith, prejudice, and futility.” California Architectural Bldg.

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Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake

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Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that

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while leave to amend shall be freely given, the court does not have to allow futile amendments).

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However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff may be

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dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,

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1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972); see also Weilburg v.

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Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to

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amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be

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cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.

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1988)).

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Here, given the extremely vague and conclusory nature of the complaint’s allegations, the

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undersigned cannot yet say that it appears beyond doubt that further leave to amend would be

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futile. Plaintiff’s amended complaint will therefore be dismissed, and plaintiff will be granted

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leave to file a second amended complaint. Plaintiff is cautioned, however, that if plaintiff elects

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to file a second amended complaint “the tenet that a court must accept as true all of the

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allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft, 556 U.S. at 678. “While legal conclusions can provide the complaint’s framework, they

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must be supported by factual allegations.” Id. at 679. Those facts must be sufficient to push the

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claims “across the line from conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S.

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at 557).

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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
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in itself without reference to prior pleadings. The second amended complaint will supersede the

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amended complaint just as the amended complaint superseded the original complaint. See Loux

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v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in a second amended complaint, just as if it were

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the initial complaint filed in the case, each defendant must be listed in the caption and identified

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in the body of the complaint, and each claim and the involvement of each defendant must be

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sufficiently alleged. Any second amended complaint which plaintiff may elect to file must also

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include concise but complete factual allegations describing the conduct and events which underlie

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plaintiff’s claims.

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IV.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. The amended complaint filed December 22, 2016 (ECF No. 6) is dismissed with leave

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to amend. 1

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2. Within twenty-eight days from the date of this order, a second amended complaint

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shall be filed that cures the defects noted in this order and complies with the Federal Rules of

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Civil Procedure and the Local Rules of Practice. 2 The second amended complaint must bear the

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case number assigned to this action and must be titled “Second Amended Complaint.”

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3. Failure to comply with this order in a timely manner may result in a recommendation

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that this action be dismissed.

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DATED: April 20, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:6
DB/orders/orders.pro se/john1640.dism.lta2.ord

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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.
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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.
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