Blank v. Sacramento County Sheriff et al

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/22/2017 Plaintiff's Complaint is DISMISSED without prejudice; Plaintiff may file an amended complaint in compliance with the directions in this order within 21 days of the service of this Order; Plaintiff is notified that failure to comply with this order may result in a recommendation that his complaint be dismissed with prejudice.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL LOUIS BLANK,

No. 2:17-cv-00300 TLN GGH

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Plaintiff,

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ORDER
v.
SACRAMENTO COUNTY SHERIFF,
OFFICER RODRIGUEZ,
Defendants.

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Plaintiff sues in pro se for alleged violations of his civil rights under 42 U.S.C. section

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1983. ECF No. 1. This proceeding was referred to this court under Local Rule 302(21) and 28

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U.S.C. section 636(b)(1). Plaintiff has also submitted an affidavit making the showing required

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by 28 U.S.C. 1915(a) seeking to proceed in forma pauperis. The court has determined that

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plaintiff meets the requirements for this status and the request to proceed in forma pauperis will

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therefore be granted. However, merely determining eligibility for in forma pauperis status does

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not conclude the court’s duties.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the
action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §

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1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227–1228

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are “clearly baseless.”

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Neitzke, 490 U.S. at 327. Thus, the term “frivolous,” when applied to a complaint, “embraces not

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only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. at 325.

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DISCUSSION

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A less stringent examination is afforded pro se pleadings, Haines, 404 U.S. at 520, 92 S.

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Ct. at 595, but simple reference to federal law does not create subject-matter jurisdiction. Avitts

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v. Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.1995). Subject-matter jurisdiction is created only

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by pleading a cause of action within the court’s original jurisdiction. Id. Here plaintiff has filed a

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one page, handwritten Complaint which says no more than that a Deputy Sheriff approached him

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and told him to leave a public place and not to return which, he contends, resulted in a violation

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of his civil rights. This brief statement does not meet plaintiff’s obligation to state the basis of the

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court’s jurisdiction in the complaint.

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A.

JURISDICTION
The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal

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question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject

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matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J.

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Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible

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assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v.

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Hood, 327 U.S. 678, 682 (1945). A federal claim which is so insubstantial as to be patently

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without merit cannot serve as the basis for federal jurisdiction. See Hagans v. Lavine, 415 U.S.

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528, 537-538 (1974).

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Simple reference to federal law does not create subject-matter jurisdiction. Avitts v.
Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.1995). Subject-matter jurisdiction is created only by
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pleading a cause of action within the court's original jurisdiction. Id. Section 1983; however, is

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merely the statutory vehicle for pursuing damages claims arising from federal constitutional and

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statutory violations committed by government officials. Section 1983 does not create any

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substantive rights. To succeed on a § 1983 damages claim, a plaintiff must demonstrate not only

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the deprivation of a right secured by the Constitution or laws of the United States, but that

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defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

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PLEADING REQUIREMENTS
The requirement of a short and plain statement means a complaint must include “sufficient

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allegations to put defendants fairly on notice of the claims against them.” McKeever v. Block,

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932 F.2d 795, 798 (9th Cir. 1991); 5 C. Wright & A. Miller, Federal Practice and Procedure §

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1202 (2d ed. 1990). Accord Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir.

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1995) (amended complaint with vague and scanty allegations fails to satisfy the notice

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requirement of Rule 8.) Here, the complaint does not contain sufficient allegations to put

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defendants fairly on notice. Plaintiff’s Complaint does not articulate how defendants’ actions

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violate his civil rights, i.e., what right was violated. He does not articulate the nature of the injury

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he suffered, i.e., personal injury, unlawful search or seizure, etc. See Conley v. Gibson, 355 U.S.

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41, 47 (1957); Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 645 (7th Cir. 1995) (vague and

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scanty allegations fail to satisfy the notice requirement of Rule 8).

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Further, plaintiff purports to sue the Sheriff’s Department. The U.S. Supreme Court has

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held that local governmental entities, e.g., cities, counties, and local agencies sued in their official

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capacity, are “persons” for purposes of section 1983, rendering them directly liable for

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constitutional violations if carried out pursuant to local policies or customs. McMillian v.

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Monroe County, 520 U.S. 781, 784-785 (1997); Monell v. New York City Dept. of Social

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Services, 436 U.S. 658, 690-692(1978). Plaintiff here has done no more than identify the

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Sheriff’s Department as a defendant in the caption to his complaint. This is insufficient to allow

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him to maintain the action against this state entity.

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C.

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CONCLUSION
Given the vague, threadbare state of plaintiff’s allegations, the court declines to permit the
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action to proceed as it is presently pleaded. Instead of dismissing the case with prejudice,

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however, plaintiff will be granted leave to file an amended complaint, if he can allege a

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cognizable legal theory against proper defendants and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the 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. Any amended

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complaint must identify as a defendant only persons who personally participated in a substantial

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way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th

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Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act,

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participates in another’s act or omits to perform an act he is legally required to do that causes the

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alleged deprivation).

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In light of the foregoing, it is hereby ordered that:

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1.

Plaintiff’s complaint is dismissed without prejudice;

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2.

Plaintiff may file an amended complaint in compliance with the directions above

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within 21 days of the service of this Order;
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Plaintiff is notified that failure to comply with this order may result in a

recommendation that his complaint be dismissed with prejudice.
IT IS SO ORDERED.
Dated: February 22, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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