(PS) Gamino v. Evers et al

Filing 6

ORDER signed by Magistrate Judge Sean C. Riordan on 8/28/2024 GRANTING 2 Motion to Proceed IFP; Plaintiff's Motion Requesting action be taken 4 is DENIED as moot. Plaintiff shall have 30 days from the date of this order to file an amended complaint. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON MICHAEL GAMINO,

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Plaintiff,

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No. 2:23-cv-03036-TLN-SCR

v.

ORDER

JON EVERS, et al.,

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Defendants.

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Plaintiff is proceeding pro se in this action. This matter was accordingly referred to the

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undersigned pursuant to Local Rule 302(c)(21). Before the court are Plaintiff’s motion to proceed

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in forma pauperis (ECF No. 2), First Amended Complaint (ECF No. 3), and motion requesting

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action be taken (ECF No. 4). Plaintiff has submitted the necessary affidavit required by statute

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attesting to his inability to pay the filing fee. See 28 U.S.C. § 1915(a)(1). The motion to proceed

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IFP will be granted. Plaintiff’s motion requesting action be taken (ECF No. 4) requests that

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adjudication of his motion for IFP and is also granted. However, in screening Plaintiff’s first

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amended complaint (“FAC”), as required by Section 1915(a)(2), the Court concludes that the

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FAC does not allege sufficient facts to state a claim. Plaintiff will be granted leave to amend to

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address the deficiencies set forth herein.

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I. SCREENING

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A.

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The federal IFP statute requires federal courts to dismiss a case if the action is legally

Legal Standard

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“frivolous or malicious,” fails to state a claim upon which relief may be granted or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Courts must review the complaint that initiates the case in order to perform this screening

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function. In reviewing the complaint, the Court is guided by the Federal Rules of Civil

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Procedure, which are available online at www.uscourts.gov/rules-policies/current-rules-practice-

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procedure/federal-rules-civil-procedure.

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Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and

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plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this

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court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled

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to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief

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sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.

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Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in

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the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200),

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Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von

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Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.

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denied, 564 U.S. 1037 (2011).

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The court applies the same rules of construction in determining whether the complaint

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states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

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must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must

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construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a
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less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520

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(1972). However, the court need not accept as true conclusory allegations, unreasonable

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inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618,

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624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice

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to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009).

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To state a claim on which relief may be granted, the plaintiff must allege enough facts “to

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state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

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678.  A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity

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to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v.

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in

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Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc).

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B.

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Plaintiff’s first amended complaint (“FAC”) brings an action under 42 U.S.C. § 1983

The Complaint

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against the County of Stanislaus (“County”), the City of Modesto (“City”), and three individual

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defendants who are alleged to be County or City employees. ECF No. 3 at 4-5. Plaintiff alleges

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that in 2010 he had a marijuana debt to a documented drug dealer named Smyrni. Id. at 2. The

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allegations are unclear, but it appears Plaintiff alleges that Smyrni entrapped him because Smyrni

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was friends with Defendant Emerson, a prosecuting district attorney. Id. Plaintiff alleges he was

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arrested in 2011, and refers to a 2011 criminal case number. Id. He claims that Defendants

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conspired to create probable cause and fabricated evidence resulting in his wrongful conviction.

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Id. Plaintiff claims he was incarcerated in county jail for 1.5 years, but also states that his

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damages are the result of serving 3,091 days. Id. at 6. Plaintiff seeks monetary damages.

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C.

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The FAC does not comply with Federal Rule of Civil Procedure 8 as it does not contain a

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Analysis

“short and plain” statement of the claim showing that Plaintiff is entitled to relief. The exact
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nature of what happened to Plaintiff is unclear from the FAC, other than his complaint of state

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criminal proceedings and apparent allegation that he was entrapped and wrongfully convicted.

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Plaintiff brings his claims under § 1983, but that statute “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989). A claim under § 1983 requires a

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plaintiff to allege that defendants acting under color of state law deprived the plaintiff of a right

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secured by the Constitution or federal statutes. Benavidez v. County of San Diego, 993 F.3d 1134,

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1144 (9th Cir. 2021). It is not clear from the FAC what underlying Constitutional or other federal

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rights Plaintiff alleges were violated. The caption mentions an unlawful search, but there are no

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clear factual allegations of unlawful search. The caption similarly mentions malicious

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prosecution and the Fourteenth Amendment, but does not contain a short a plain statement of

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facts supporting those conclusory assertions.

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Moreover, Plaintiff’s claim appears to be based on a state court conviction, and where a §

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1983 action alleges constitutional violations that would necessarily imply the invalidity of the

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conviction or sentence, the prisoner must establish that the underlying sentence or conviction has

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been invalidated on appeal, by a habeas petition or through some similar proceeding. See Heck v.

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Humphrey, 512 U.S. 477, 483–87 (1994). This “favorable termination” rule from Heck applies

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regardless of the form of remedy sought, so long as the § 1983 action implicates the validity of an

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underlying conviction. See Edwards v. Balisok, 520 U.S. 641, 646–48 (1997). Plaintiff has not

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alleged that his conviction was invalidated on appeal, vacated, or otherwise set aside, and he

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appears to claim that his Constitutional rights were violated by the wrongful conviction. Such a

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civil rights claim, if allowed to proceed, would necessarily imply the invalidity of his conviction

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and be barred by Heck.

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Plaintiff’s FAC also makes allegations concerning occurrences in 2010 and 2011. ECF

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No. 3 at 2. This action was not filed until 12 years later, and thus the claims appear to be time-

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barred. “Section 1983 does not contain its own statute of limitations.” Flynt v. Shimazu, 940

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F.3d 457, 461 (9th Cir. 2019) (citation and internal quotation marks omitted). Because § 1983

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contains no specific statute of limitations, federal courts borrow state statutes of limitations for
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personal injury actions in § 1983 suits. See Nance v. Ward, 597 U.S. 159, 174 (2022) (“[A]ll §

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1983 suits must be brought within a State’s statute of limitations for personal-injury actions.”). In

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California that period of limitations is two years. See Holt v. County of Orange, 91 F.4th 1013,

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1018 (9th Cir. 2024).

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Accordingly, the FAC fails to state a claim on which relief may be granted. It appears the

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claims may be barred by Heck and are untimely under the applicable two-year statute of

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limitations. However, Plaintiff is proceeding pro se and “[a] district court should not dismiss a

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pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the

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complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

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2012). Rather than recommending dismissal of the action, the undersigned will provide Plaintiff

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an opportunity to amend the complaint to attempt to cure these defects.

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II. AMENDING THE COMPLAINT
If plaintiff chooses to amend the complaint, the amended complaint must allege facts

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supporting his allegation that his Constitutional or federal statutory rights were violated. In

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addition, Plaintiff should address whether his state court conviction was overturned on appeal,

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vacated, or set aside. Plaintiff should also address the apparent untimeliness of his claims. The

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allegations of the complaint must be set forth in sequentially numbered paragraphs, with each

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paragraph number being one greater than the one before, each paragraph having its own number,

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and no paragraph number being repeated anywhere in the complaint. Each paragraph should be

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limited “to a single set of circumstances” where possible. Rule 10(b). As noted above, forms are

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available to help plaintiffs organize their complaint in the proper way. They are available at the

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Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at

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www.uscourts.gov/forms/pro-se-forms.

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The amended complaint must not force the court and the defendants to guess at what is

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being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996)

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(affirming dismissal of a complaint where the district court was “literally guessing as to what

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facts support the legal claims being asserted against certain defendants”). The amended

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complaint must not require the court to spend its time “preparing the ‘short and plain statement’
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which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not

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require the court and defendants to prepare lengthy outlines “to determine who is being sued for

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what.” Id. at 1179.

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Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline

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Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint

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supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

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Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED;

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2. Plaintiff’s motion requesting action be taken (ECF No. 4) is DENIED as moot;

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3. Plaintiff shall have 30 days from the date of this order to file an amended complaint

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that addresses the defects set forth above. The amended complaint must be labeled

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“Second Amended Complaint” and must comply with Rule 8. If Plaintiff fails to timely

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comply with this order, the undersigned may recommend that this action be dismissed.

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4. Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice

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of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil

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Procedure.

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SO ORDERED.
DATED: August 28, 2024

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