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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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-2699-WBS-EFB P

v.

ORDER

GLENN NORLING,

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Defendant.

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Plaintiff is a county inmate proceeding without counsel in an action brought for alleged

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violations of his civil rights. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915, and requests the appointment of counsel. He also requests to withdraw his consent to the

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jurisdiction of a magistrate judge,1 and requests permission to electronically file with the court.2

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I.

Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Request to Proceed In Forma Pauperis

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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.
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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.
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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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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)

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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 alleges

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that defendant Norling, an FBI agent, called 911 and claimed that plaintiff was driving on a

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suspended license, even though he knew that the DMV had not served plaintiff with a notice of

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the suspension. According to the complaint, plaintiff was pulled over, arrested, convicted, and

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jailed. The complaint seeks damages and injunctive relief, and lists the following claims for

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relief: Fourth Amendment, Fifth Amendment, Fourteenth Amendment, Monell, RICO,

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conspiracy, fraud, infliction of mental duress, and loss of income and property. Although the

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Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the

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elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646,

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649 (9th Cir. 1984). Here, the allegations are too vague and conclusory to state a cognizable

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claim for relief. The complaint will be dismissed with leave to amend.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). Alternatively, Bivens v. Six Unknown Named Agents of Federal Bureau

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of Narcotics, 403 U.S. 388 (1971), provides a remedy for violation of civil rights by federal

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actors. Bivens established that “compensable injury to a constitutionally protected interest [by

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federal officials alleged to have acted under color of federal law] could be vindicated by a suit for

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damages invoking the general federal question jurisdiction of the federal courts [pursuant to 28

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U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978). “Actions under [42 U.S.C.] §

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1983 and those under Bivens are identical save for the replacement of a state actor under § 1983

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by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 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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As a general rule, a challenge in federal court to the fact of conviction or the length of

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confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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See Preiser v. Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 or Bivens action

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would implicitly question the validity of confinement or its duration, the plaintiff must first show

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that the underlying conviction was reversed on direct appeal, expunged by executive order,

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declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v.

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Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004).

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Plaintiff is claiming that his federal constitutional rights were violated and as a result he was

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arrested, convicted, and incarcerated. By the terms of Heck, plaintiff is barred from collaterally

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challenging this underlying criminal conviction in this civil rights action.

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Moreover, the complaint improperly asserts a Monell claim for relief because it neither

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names a municipality 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 a municipality. A municipal entity or its departments

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

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employees acting pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist.

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Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436

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U.S. 658, 691 (1978); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008).

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Local government entities may not be held vicariously liable under section 1983 for the

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

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

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In addition, the complaint fails to plead sufficient facts to state a Racketeering Influenced

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and Corrupt Organization Act (“RICO”) claim. To state a civil RICO claim, a plaintiff must

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allege: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity (known

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

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

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(9th Cir. 2008); Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). A “pattern of racketeering
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activity” means at least two criminal acts enumerated by statute. 18 U.S.C. § 1961(1), (5)

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(including, among many others, mail fraud, wire fraud, and financial institution fraud). Those so-

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called “predicate acts” under RICO, if based on a theory of fraudulent conduct, must be alleged

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with specificity in compliance with Rule 9(b) of the Federal Rules of Civil Procedure. Schreiber

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

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Further, 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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Likewise, the allegations in the complaint are not sufficient to demonstrate fraud. When a

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plaintiff raises claims of fraud, “the circumstances constituting fraud . . . shall be stated with

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particularity.” Fed. R. Civ. P. 9(b). “Rule 9(b) serves not only to give notice to defendants of the

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specific fraudulent conduct against which they must defend, but also ‘to deter the filing of

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complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the

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harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally

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imposing upon the court, the parties and society enormous social and economic costs absent some

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factual basis.’” Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac

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Elecs. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.1996)). Pursuant to Rule 9(b), a plaintiff alleging

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fraud at a minimum must plead evidentiary facts such as the time, place, persons, statements and

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explanations of why allegedly misleading statements are misleading. In re GlenFed, Inc. Sec.

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Litig., 42 F.3d 1541, 1547 n. 7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d

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1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995).

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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, if he can allege a cognizable legal theory against a proper

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defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity

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to amend to correct any deficiency in their complaints). Should plaintiff choose to file an

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amended complaint, the amended complaint shall clearly set forth the claims and allegations

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against each defendant. Any amended complaint must cure the deficiencies identified above and

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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

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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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Accordingly, IT IS HEREBY ORDERED that:

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Summary of Order

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. Plaintiff’s request to withdraw his consent to the jurisdiction of the magistrate

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judge (ECF No. 15) is denied as moot.
5. 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.

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Dated: August 2, 2017.

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