Whiten v. Pressley

Filing 6

ORDER OF DISMISSAL. Plaintiff's application for leave to proceed in forma pauperis is GRANTED. Signed by Judge Vaughn R Walker on 4/10/2009. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 4/10/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II This court must dismiss an action if the complaint is frivolous or malicious, fails to state a claim upon which relief may Plaintiff Timothy Allen Whiten has filed a pro se civil rights complaint under 42 USC § 1983 alleging that California Department of Motor Vehicles Driver Safety Officer W T Pressley violated his constitutional rights when he mistakenly confiscated plaintiff's driver's license. Plaintiff seeks 10 million dollars in He also seeks leave to proceed v. W T PRESSLEY, (Doc #s 2 & 4) Defendant. / TIMOTHY ALLEN WHITEN, Plaintiff, ORDER OF DISMISSAL No. C-08-3788 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

compensatory and punitive damages. in forma pauperis.

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be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 USC § 1915(e)(2). Pleadings filed by Balistreri

pro se litigants, however, must be liberally construed.

v Pacifica Police Dep't, 901 F2d 696, 699 (9th Cir 1990). To state a claim under 42 USC § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the

Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 US 42, 48 (1988).

III The Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. See County of Sacramento v Lewis, 523 US. 833, 849 (1998); Davidson v Cannon, 474 US 344, 348 (1986); Daniels v Williams, 474 US 327, 328 (1986). Only conduct intended to injure in some way

unjustifiable by any government interest is the sort of official action likely to rise to the conscience-shocking level required to support a substantive due process claim under § 1983. 523 US at 849. Here, plaintiff alleges "due to the gross negligent [sic] of W T Pressley, plaintiff suffered mental anguish, he was unable to take his kids to there [sic] doctor appointments and was unable to work." Doc # 1 at 3-4. Even assuming Pressley was negligent in See Lewis,

confiscating plaintiff's driver's license, this allegation does not

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rise to the level of a § 1983 claim for which relief may be granted. See Lewis, 523 US at 849.

IV For the foregoing reasons, plaintiff's complaint is DISMISSED under the authority of 28 USC § 1915(e)(2). Based solely on plaintiff's affidavit of poverty, his application for leave to proceed in forma pauperis (doc #s 2 & 4) is GRANTED. The clerk is directed to enter judgment in accordance with this order and close the file.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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