Robben v. Norling

Filing 19

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/2/2017 DENYING 9 Request for the Appointment of Counsel ; GRANTING 13 Motion to Proceed IFP; DENYING as moot 15 Request to Withdraw Consent to Jurisdiction of Magistrate Judge; and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments collected in accordance with the notice to the Sacramento County Sheriff filed concurrently herewith. (Henshaw, R)

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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 TODD ROBBEN, 12 Plaintiff, 13 14 No. 2:16-cv-2699-WBS-EFB P v. ORDER GLENN NORLING, 15 Defendant. 16 Plaintiff is a county inmate proceeding without counsel in an action brought for alleged 17 18 violations of his civil rights. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 19 § 1915, and requests the appointment of counsel. He also requests to withdraw his consent to the 20 jurisdiction of a magistrate judge,1 and requests permission to electronically file with the court.2 21 I. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 23 Request to Proceed In Forma Pauperis ///// 24 25 26 27 28 1 Plaintiff previously submitted to the court the form choosing to decline the jurisdiction of the magistrate judge and requesting reassignment to a district judge. The matter has since been assigned to a district judge. Accordingly, plaintiff’s request to withdraw his consent (ECF No. 15) is denied as moot. 2 This request (ECF No. 16) is denied pursuant to Local Rule 133(a), which provides that pro se parties, such as plaintiff, shall file and serve paper documents. 1 1 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 2 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 3 § 1915(b)(1) and (2). 4 II. Screening Requirement and Standards 5 Federal courts must engage in a preliminary screening of cases in which prisoners seek 6 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 8 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 9 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 10 relief.” Id. § 1915A(b). 11 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 12 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 13 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 14 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 15 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 16 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 17 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 18 U.S. 662, 679 (2009). 19 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 20 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 21 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 22 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 23 678. 24 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 25 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 26 content that allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 28 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 2 1 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 2 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 3 III. Screening Order 4 The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds 5 that it must be dismissed with leave to amend for failure to state a claim. The complaint alleges 6 that defendant Norling, an FBI agent, called 911 and claimed that plaintiff was driving on a 7 suspended license, even though he knew that the DMV had not served plaintiff with a notice of 8 the suspension. According to the complaint, plaintiff was pulled over, arrested, convicted, and 9 jailed. The complaint seeks damages and injunctive relief, and lists the following claims for 10 relief: Fourth Amendment, Fifth Amendment, Fourteenth Amendment, Monell, RICO, 11 conspiracy, fraud, infliction of mental duress, and loss of income and property. Although the 12 Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the 13 elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 14 649 (9th Cir. 1984). Here, the allegations are too vague and conclusory to state a cognizable 15 claim for relief. The complaint will be dismissed with leave to amend. 16 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 17 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 18 alleged violation was committed by a person acting under the color of state law. West v. Atkins, 19 487 U.S. 42, 48 (1988). Alternatively, Bivens v. Six Unknown Named Agents of Federal Bureau 20 of Narcotics, 403 U.S. 388 (1971), provides a remedy for violation of civil rights by federal 21 actors. Bivens established that “compensable injury to a constitutionally protected interest [by 22 federal officials alleged to have acted under color of federal law] could be vindicated by a suit for 23 damages invoking the general federal question jurisdiction of the federal courts [pursuant to 28 24 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions under [42 U.S.C.] § 25 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 26 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). An 27 individual defendant is not liable on a civil rights claim unless the facts establish the defendant’s 28 personal involvement in the constitutional deprivation or a causal connection between the 3 1 defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 2 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 3 As a general rule, a challenge in federal court to the fact of conviction or the length of 4 confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 5 See Preiser v. Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 or Bivens action 6 would implicitly question the validity of confinement or its duration, the plaintiff must first show 7 that the underlying conviction was reversed on direct appeal, expunged by executive order, 8 declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v. 9 Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004). 10 Plaintiff is claiming that his federal constitutional rights were violated and as a result he was 11 arrested, convicted, and incarcerated. By the terms of Heck, plaintiff is barred from collaterally 12 challenging this underlying criminal conviction in this civil rights action. 13 Moreover, the complaint improperly asserts a Monell claim for relief because it neither 14 names a municipality as a defendant nor alleges that plaintiff was injured as a result of employees 15 acting pursuant to any policy or custom of a municipality. A municipal entity or its departments 16 is liable under section 1983 only if plaintiff shows that his constitutional injury was caused by 17 employees acting pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist. 18 Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 19 U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008). 20 Local government entities may not be held vicariously liable under section 1983 for the 21 unconstitutional acts of its employees under a theory of respondeat superior. See Board of Cty. 22 Comm’rs. v. Brown, 520 U.S. 397, 403 (1997). 23 In addition, the complaint fails to plead sufficient facts to state a Racketeering Influenced 24 and Corrupt Organization Act (“RICO”) claim. To state a civil RICO claim, a plaintiff must 25 allege: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity (known 26 as “predicate acts”), (5) causing injury to plaintiff’s business or property. Sanford v. 27 Memberworks, Inc., 625 F.3d 550, 557 (9th Cir. 2010); Walter v. Drayson, 538 F.3d 1244, 1247 28 (9th Cir. 2008); Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). A “pattern of racketeering 4 1 activity” means at least two criminal acts enumerated by statute. 18 U.S.C. § 1961(1), (5) 2 (including, among many others, mail fraud, wire fraud, and financial institution fraud). Those so- 3 called “predicate acts” under RICO, if based on a theory of fraudulent conduct, must be alleged 4 with specificity in compliance with Rule 9(b) of the Federal Rules of Civil Procedure. Schreiber 5 Distrib. Co. v. Serv-Well Furniture Co.., 806 F.2d 1393, 1400-01 (9th Cir. 2004). 6 Further, the complaint cannot support any claim based on a conspiracy, which requires 7 allegations of specific facts showing that two or more persons intended to accomplish an unlawful 8 objective of causing plaintiff harm and took some concerted action in furtherance thereof. 9 Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); Margolis v. Ryan, 140 10 F.3d 850, 853 (9th Cir. 1998) (to state claim for conspiracy under § 1983, plaintiff must allege 11 facts showing an agreement among the alleged conspirators to deprive him of his rights); Delew 12 v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (to state claim for conspiracy under § 1983, 13 plaintiff must allege at least facts from which such an agreement to deprive him of rights may be 14 inferred); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam) (conclusory 15 allegations of conspiracy insufficient to state a valid § 1983 claim); Karim-Panahi v. Los Angeles 16 Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). 17 Likewise, the allegations in the complaint are not sufficient to demonstrate fraud. When a 18 plaintiff raises claims of fraud, “the circumstances constituting fraud . . . shall be stated with 19 particularity.” Fed. R. Civ. P. 9(b). “Rule 9(b) serves not only to give notice to defendants of the 20 specific fraudulent conduct against which they must defend, but also ‘to deter the filing of 21 complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the 22 harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally 23 imposing upon the court, the parties and society enormous social and economic costs absent some 24 factual basis.’” Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac 25 Elecs. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.1996)). Pursuant to Rule 9(b), a plaintiff alleging 26 fraud at a minimum must plead evidentiary facts such as the time, place, persons, statements and 27 explanations of why allegedly misleading statements are misleading. In re GlenFed, Inc. Sec. 28 ///// 5 1 Litig., 42 F.3d 1541, 1547 n. 7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 2 1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995). 3 Lastly, plaintiff’s remaining claims appear to be brought under state tort law, which do not 4 come within the jurisdiction of the federal courts. Regardless, the complaint does not properly 5 allege any such claims because it does not plead compliance with the California Torts Claims Act 6 (“Act”). The Act requires that a party seeking to recover money damages from a public entity or 7 its employees submit a claim to the entity before filing suit in court, generally no later than six 8 months after the cause of action accrues. Cal. Gov’t Code §§ 905, 911.2, 945, 950.2 (emphasis 9 added). Timely claim presentation is not merely a procedural requirement of the Act but is an 10 element of a plaintiff’s cause of action. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 11 (2007). Thus, when a plaintiff asserts a claim subject to the Act, he must affirmatively allege 12 compliance with the claim presentation procedure, or circumstances excusing such compliance, in 13 his complaint. Id. The requirement that a plaintiff asserting claims subject to the Act must 14 affirmatively allege compliance with the claims filing requirement applies in federal court as 15 well. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). 16 For these reasons, plaintiff’s complaint must be dismissed. Plaintiff will be granted leave 17 to file an amended complaint, if he can allege a cognizable legal theory against a proper 18 defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 19 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity 20 to amend to correct any deficiency in their complaints). Should plaintiff choose to file an 21 amended complaint, the amended complaint shall clearly set forth the claims and allegations 22 against each defendant. Any amended complaint must cure the deficiencies identified above and 23 also adhere to the following requirements: 24 Any amended complaint must identify as a defendant only persons who personally 25 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 26 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 27 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 28 legally required to do that causes the alleged deprivation). 6 1 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 2 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 3 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 4 Any amended complaint must be written or typed so that it so that it is complete in itself 5 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 6 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 7 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 8 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 9 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967)). 11 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 12 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 13 See E.D. Cal. L.R. 110. 14 IV. 15 Request for Appointment of Counsel Plaintiff requests that the court appoint counsel. District courts lack authority to require 16 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 17 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 18 to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 19 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 20 When determining whether “exceptional circumstances” exist, the court must consider the 21 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 22 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 23 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional 24 circumstances in this case. 25 V. 26 Accordingly, IT IS HEREBY ORDERED that: 27 28 Summary of Order 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 13) is granted. ///// 7 1 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 2 in accordance with the notice to the Sacramento County Sheriff filed concurrently 3 herewith. 4 3. Plaintiff’s request for the appointment of counsel (ECF No. 9) is denied. 5 4. Plaintiff’s request to withdraw his consent to the jurisdiction of the magistrate 6 7 judge (ECF No. 15) is denied as moot. 5. The complaint is dismissed with leave to amend within 30 days. The complaint 8 must bear the docket number assigned to this case and be titled “Amended 9 Complaint.” Failure to comply with this order may result in dismissal of this 10 action for failure to prosecute and failure to state a claim. If plaintiff files an 11 amended complaint stating a cognizable claim the court will proceed with service 12 of process by the United States Marshal. 13 Dated: August 2, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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