Humes v. Sessions
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/08/19 ORDERING the Clerk of Court shall randomly assign a United States District Judge to this case. Also, RECOMMENDING that plaintiff's first amended complaint be dismissed without leave to amend for failure to state a cognizable claim. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JON HUMES,
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No. 2:17-cv-2608-EFB P
Plaintiff,
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v.
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JEFF SESSIONS,
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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendant.
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action
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brought under 42 U.S.C. § 1983. The court screened plaintiff’s original complaint, deemed it
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deficient, and dismissed it with leave to amend. ECF No. 12. He has filed an amended complaint
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(ECF No. 13) which the court screens below.
Screening
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I.
Legal Standards
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The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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screening obligation applies where a complaint is removed from state court. See, e.g., Morris v.
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Horel, 2008 U.S. Dist. LEXIS 56938, 2008 WL 686874, *1 (N.D. Cal., March 12, 2008)
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(screening civil rights action removed from state court pursuant to Section 1915A). The court
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must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
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A claim “is [legally] frivolous where 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, 1227-28 (9th
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Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
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meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona,
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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute
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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490
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U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded,
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has an arguable legal and factual basis. Id.
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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However, in order to survive dismissal for failure to state a claim, a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations
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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that
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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)
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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 1216 (3d
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ed. 2004)).
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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint
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under this standard, the court must accept as true the allegations of the complaint in question,
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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading
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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.
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McKeithen, 395 U.S. 411, 421 (1969).
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II.
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Plaintiff’s amended complaint names only a singled defendant – The National Crime
Analysis
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Information Center (“NCIC”). He claims that the NCIC is continuing to erroneously report two
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of his convictions that have since been expunged. ECF No. 13 at 3. But the NCIC is not a proper
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defendant in a section 1983 suit. As an initial matter, the Supreme Court has held that federal
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agencies are not amenable to suit under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
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388 (1999).1 See Corrs. Servs. Corp. v. Malesko, 534 U.S. 61, 69-70 (2001). And the NCIC is
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not, strictly speaking, an agency at all. Rather, it is a data system administered by the Federal
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Bureau of Investigation. See Case v. Kitsap County Sheriff’s Dept., 249 F.3d 921, 923 (9th Cir.
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2001) (“That warrant was entered into the National Crime Information Center computer system
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(“NCIC”), which is a national criminal records data system administered by the Federal Bureau of
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Investigation. NCIC contains criminal history information, including outstanding arrest warrants,
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and is available to police departments nationwide.”) (internal citations omitted). It is well settled
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that, “[t]o state a Bivens claim, the plaintiff must allege facts showing that a person acting under
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color of federal law deprived the plaintiff of a right, privilege, or immunity secured by the United
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States Constitution.” Henthorn v. Turrentine, 1993 U.S. App. LEXIS 21743, * 3 (9th Cir. 1993)
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(unpublished). A data system is not a “person” within the meaning of section 1983 or Bivens.
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For the foregoing reasons, this claim must be dismissed.
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Leave to Amend
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The court has already afforded plaintiff one chance to file an amended complaint and,
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having done so, he is no closer to stating a cognizable claim. Consequently, it declines to offer
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him further opportunity to amend. See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809-10
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An action brought under Bivens, is the equivalent of a § 1983 action, but against federal
officials. Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009) (stating that a Bivens action “is the
federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.”)
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(9th Cir. 1988) (“Repeated failure to cure deficiencies by amendments previously allowed is
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another valid reason for a district court to deny a party leave to amend.”).
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Conclusion
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Accordingly, it is ORDERED that the Clerk of Court shall randomly assign a United
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States District Judge to this case.
Further, it is RECOMMENDED that plaintiff’s first amended complaint be DISMISSED
without leave to amend for failure to state a cognizable claim.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: October 8, 2019.
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