Humes v. Eliston et al

Filing 27

ORDER signed by Magistrate Judge Allison Claire on 12/11/18 DIRECTING plaintiff to complete and submit Service Documents and USM-285 Form. Service is appropriate for defendant Eliston. Clerk to send plaintiff: 1 Summons, 1 USM-285 Form, 1 Instruction Sheet and 1 copy of 22 First Amended Complaint to be completed and returned within 30 days. (Coll, A)

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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-2650 JAM AC P
Plaintiff,

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v.

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ELISTON, et al.,

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ORDER and
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a Sacramento County Jail inmate proceeding pro se and in forma pauperis with

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this civil rights action filed pursuant to 42 U.S.C. § 1983. By order filed September 20, 2018, the

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court dismissed plaintiff’s original complaint with leave to file an amended complaint limited to

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an excessive force claim against defendant Sacramento County Sheriff’s Officer Eliston. See

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ECF No. 20. The undersigned recommended the dismissal of several putative defendants, and the

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recommendation was adopted by the district judge on November 5, 2018. ECF No. 25.

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Plaintiff timely filed a First Amended Complaint (FAC), ECF No. 22, which the

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undersigned now screens pursuant to 28 U.S.C. 1915A, based on the legal standards previously

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identified by the court, see ECF No. 20 at 2-3. The court finds that the FAC states a cognizable

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claim against defendant Eliston for the use of excessive force, based on the alleged circumstances

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of plaintiff’s arrest on June 10, 2016. See ECF No. 22 at 3-5. For the reasons previously stated,

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this excessive force claim appears to be premised on the Due Process Clause of the Fourteenth
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Amendment. See ECF No. 20 at 3-4. However, for the reasons previously addressed by the court

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in plaintiff’s myriad cases, plaintiff’s allegations do not state a cognizable Fourth Amendment

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claim.1

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Nor does the FAC state a cognizable claim against newly named defendant Xavier

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Becerra, the California Attorney General. The FAC fails to make any specific charging

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allegations against Becerra, other than his alleged failure to enforce Proposition 57 (the

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“California Parole for Non-Violent Criminals” initiative passed in 2016). See ECF No. 22 at 6.

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The Attorney General is immune from suit under the circumstances challenged by plaintiff. The

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California Attorney General is absolutely immune for Section 1983 damages liability for

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initiating prosecutions and presenting the State’s case in defense. See Imbler v. Pachtman, 424

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U.S. 409, 431 (1976). Moreover, this immunity extends to the Attorney General’s administrative

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responsibilities. See Cousins v. Lockyer, 568 F.3d 1063, 1069 (9th Cir. 2009).

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Finally, the court has reviewed plaintiff’s several miscellaneous filings (ECF Nos. 23, 24

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& 26) and finds none relevant to the factual or legal issues in this case. Plaintiff is admonished to

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refrain from filing documents in this action unless they are authorized by Federal Rules of Civil

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Procedure or directed by the court. The filing of further irrelevant and frivolous documents in

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this action may result in the imposition of sanctions. See Local Rule 110 (“Failure . . . of a party

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to comply with these [Local] Rules or with any order of the Court may be grounds for imposition

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by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of

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the Court.”).

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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1. This action shall proceed on plaintiff’s First Amended Complaint filed October 5, 2018

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(ECF No. 22), on plaintiff’s excessive force claim against defendant Eliston, for whom service of

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process is appropriate.

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2. The Clerk of Court is directed to send plaintiff one USM-285 form, one summons, an
instruction sheet, and one copy of the endorsed FAC.
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See e.g. ECF No. 20 at 5 (noting the “more than forty other cases plaintiff has filed in this
Court . . . challeng[ing] his arrest and the underlying warrant”).
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3. Within thirty (30) days after service of this order, plaintiff shall complete the attached

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Notice of Submission of Documents and submit the following documents to the court:

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a. The completed Notice of Submission of Documents;

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b. One completed summons;

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c. One completed USM-285 form; and

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d. Two copies of the endorsed FAC (the Marshal will retain one copy).

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4. Plaintiff shall not attempt service on any defendant or request a waiver of service.

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Upon receipt of the above-described documents, the court will direct the United States Marshal to

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serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment

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of costs.
5. Failure of plaintiff to timely comply with this order will result in the dismissal of this
action without prejudice.
Additionally, for the reasons set forth above, IT IS HEREBY RECOMMENDED that

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putative defendant California Attorney General Xavier Becerra be dismissed from this action with

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prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: December 11, 2018

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON HUMES,

No. 2:17-cv-2650 JAM AC P
Plaintiff,

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v.

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ELISTON, et al.,

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NOTICE OF SUBMISSION OF
DOCUMENTS
Defendants.

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Plaintiff submits the following documents in compliance with the court’s order filed
__________________:

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one completed summons form

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one completed USM-285 form

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two copies of the endorsed FAC

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____________________________________
Date

____________________________________
Plaintiff

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