Robben v. City of South Lake Tahoe et al

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/2/2017 GRANTING plaintiff's 13 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order to the Sheriff of Sacramento County. Plaintiff's 9 request for appointment of counsel is DENIED. The complaint is DISMISSED with leave to amend within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TODD ROBBEN,

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Plaintiff,

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No. 2:16-cv-2696-WBS-EFB P

v.
CITY OF SOUTH LAKE TAHOE, et al.,

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ORDER GRANTING IFP AND DISMISSING
COMPLAINT PURSUANT TO 28 U.S.C. §
1915A

Defendants.

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Plaintiff is a county inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915, a request for the appointment of counsel, and a request to electronically file with

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the court.1

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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This request (ECF No. 14) is denied pursuant to Local Rule 133(a), which provides that
pro se parties, such as plaintiff, shall file and serve paper documents.
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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Screening Order

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The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds

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that it must be dismissed with leave to amend for failure to state a claim. The complaint names

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Laney, Wilson, Webber, and Chief Uhler as defendants and alleges that they all work for the

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South Lake Tahoe City Police Department. Laney and Wilson allegedly “fabricated a false DUI

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charge,” and Webber allegedly “fabricated a false charge of driving on suspended license and

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expired registration/false tags . . . .” ECF No. 1, § IV. The complaint lists the following claims:

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Fourth Amendment, Fourteenth Amendment, RICO, conspiracy (state and federal), fraud, Monell,

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failure to train/discipline, neglect in hiring, infliction of mental and emotional distress, malicious

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prosecution, and false imprisonment. Id. Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Here, the

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allegations are too vague and conclusory to state a cognizable claim for relief. The complaint will

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be dismissed with leave to amend.

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First, although the complaint references the Fourth and Fourteenth Amendments, the facts

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alleged do not demonstrate any such violations of plaintiff’s rights. There are no facts alleging

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that plaintiff was subjected to an unreasonable search or seizure in violation of the Fourth

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Amendment. There are also no facts alleging that plaintiff was denied his right to due process or

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to equal protection in violation of the Fourteenth Amendment. In order to state a claim under §

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1983, a plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2)

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that the violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An

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individual defendant is not liable on a civil rights claim unless the facts establish the defendant’s

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personal involvement in the constitutional deprivation or a causal connection between the

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defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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Second, the complaint fails to plead sufficient facts to state a Racketeering Influenced and
Corrupt Organization Act (“RICO”) claim. To state a civil RICO claim, a plaintiff must allege:
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(1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity (known as

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“predicate acts”), (5) causing injury to plaintiff’s business or property. Sanford v. Memberworks,

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Inc., 625 F.3d 550, 557 (9th Cir. 2010); Walter v. Drayson, 538 F.3d 1244, 1247 (9th Cir. 2008);

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Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). A “pattern of racketeering activity” means

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at least two criminal acts enumerated by statute. 18 U.S.C. § 1961(1), (5) (including, among many

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others, mail fraud, wire fraud, and financial institution fraud). Those so-called “predicate acts”

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under RICO, if based on a theory of fraudulent conduct, must be alleged with specificity in

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compliance with Rule 9(b) of the Federal Rules of Civil Procedure. Schreiber Distrib. Co. v.

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Serv-Well Furniture Co., 806 F.2d 1393, 1400-01 (9th Cir. 2004).

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Third, the complaint cannot support any claim based on a conspiracy, which requires

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allegations of specific facts showing that two or more persons intended to accomplish an unlawful

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objective of causing plaintiff harm and took some concerted action in furtherance thereof.

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Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); Margolis v. Ryan, 140

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F.3d 850, 853 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege

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facts showing an agreement among the alleged conspirators to deprive him of his rights); Delew

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v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983,

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plaintiff must allege at least facts from which such an agreement to deprive him of rights may be

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inferred); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam) (conclusory

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allegations of conspiracy insufficient to state a valid § 1983 claim); Karim-Panahi v. Los Angeles

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Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988).

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Fourth, the allegations are not sufficient to demonstrate fraud. When a plaintiff raises

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claims of fraud, “the circumstances constituting fraud . . . shall be stated with particularity.” Fed.

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R. Civ. P. 9(b). “Rule 9(b) serves not only to give notice to defendants of the specific fraudulent

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conduct against which they must defend, but also ‘to deter the filing of complaints as a pretext for

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the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being

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subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the

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parties and society enormous social and economic costs absent some factual basis.’” Bly-Magee

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v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elecs. Sec. Litig., 89 F.3d
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1399, 1405 (9th Cir.1996)). Pursuant to Rule 9(b), a plaintiff alleging fraud at a minimum must

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plead evidentiary facts such as the time, place, persons, statements and explanations of why

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allegedly misleading statements are misleading. In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541,

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1547 n. 7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.

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2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995).

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Fifth, the complaint fails to state a Monell claim for relief because it neither names El

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Dorado County as a defendant nor alleges that plaintiff was injured as a result of employees

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acting pursuant to any policy or custom of El Dorado County. A municipal entity or its

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departments is liable under section 1983 only if plaintiff shows that his constitutional injury was

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caused by employees acting pursuant to the municipality’s policy or custom. Mt. Healthy City

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Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc.

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Servs., 436 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th

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Cir. 2008). Local government entities may not be held vicariously liable under section 1983 for

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the unconstitutional acts of its employees under a theory of respondeat superior. See Board of

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Cty. Comm'rs. v. Brown, 520 U.S. 397, 403 (1997).

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Sixth, the complaint appears to name Chief Uhler as a defendant simply because of his

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role as a supervisor. The complaint fails to state a claim against Uhler because it does not show

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how Uhler, through his own individual actions, has violated plaintiff’s rights. Plaintiff may not

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sue any official on the theory that the official is liable for the unconstitutional conduct of his or

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her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because respondeat superior

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liability is inapplicable to § 1983 suits, “a plaintiff must plead that each Government-official

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defendant, through the official’s own individual actions, has violated the Constitution.” Id.

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Seventh, the complaint fails to state a claim of malicious prosecution. To state a claim of

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malicious prosecution, a plaintiff must show that the defendant initiated proceedings against him

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with the intent to deprive him of his constitutional rights. Usher v. Los Angeles, 828 F.2d 556

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(9th Cir. Cal. 1987). In addition, the proceeding must have been (1) pursued to a legal

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termination favorable to plaintiff, (2) brought without probable cause, and (3) initiated with

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malice. Womack v. County of Amador, 551 F. Supp. 2d 1017, 1031 (E.D. Cal. 2008).
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Lastly, plaintiff’s remaining claims appear to be brought under state tort law, which do not

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come within the jurisdiction of the federal courts. Regardless, the complaint does not properly

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allege any such claims because it does not plead compliance with the California Torts Claims Act

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(“Act”). The Act requires that a party seeking to recover money damages from a public entity or

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its employees submit a claim to the entity before filing suit in court, generally no later than six

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months after the cause of action accrues. Cal. Gov’t Code §§ 905, 911.2, 945, 950.2 (emphasis

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added). Timely claim presentation is not merely a procedural requirement of the Act but is an

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element of a plaintiff’s cause of action. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209

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(2007). Thus, when a plaintiff asserts a claim subject to the Act, he must affirmatively allege

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compliance with the claim presentation procedure, or circumstances excusing such compliance, in

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his complaint. Id. The requirement that a plaintiff asserting claims subject to the Act must

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affirmatively allege compliance with the claims filing requirement applies in federal court as

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well. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988).

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For these reasons, plaintiff’s complaint must be dismissed. Plaintiff will be granted leave

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to file an amended complaint to permit him another opportunity to allege a cognizable legal

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theory against a proper defendant and sufficient facts in support of that cognizable legal theory.

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Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro

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se litigants an opportunity to amend to correct any deficiency in their complaints). Should

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plaintiff choose to file an amended complaint, the amended complaint shall clearly set forth the

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claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).
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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

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Request for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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V.

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Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 13) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the Sacramento County Sheriff filed concurrently

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herewith.

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3. Plaintiff’s request for the appointment of counsel (ECF No. 9) is denied.

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4. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order may result in dismissal of this

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action for failure to prosecute and failure to state a claim. If plaintiff files an

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amended complaint stating a cognizable claim the court will proceed with service

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of process by the United States Marshal.
Dated: August 2, 2017.

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