Daniel v. McKeon et al

Filing 3

ORDER OF DISMISSAL and ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by Melvin DeVan Daniel.. Signed by Judge Charles R. Breyer on 6/18/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MELVIN DeVAN DANIEL,
Plaintiff(s),

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vs.

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OFFICER McKEON, et al.,

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Defendant(s).

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No. C 12-3008 CRB (PR)
ORDER OF DISMISSAL
(Docket # 2)

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Plaintiff has filed a pro se complaint under 42 U.S.C. § 1983 alleging that

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City of Antioch Police Officers McKeon and Moorefield violated his

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constitutional rights when they failed to take a police report after he reported

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being robbed from his van outside a Bonfare Market. Plaintiff alleges that

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defendants only made out a traffic collision report.

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Plaintiff seeks damages and leave to proceed in forma pauperis (IFP)

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under 28 U.S.C. § 1915, which, based solely on his affidavit of poverty, is

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granted.

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DISCUSSION
A.

Standard of Review
Plaintiffs proceeding IFP are subject to the screening requirements of 28

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U.S.C. § 1915. Under 28 U.S.C. § 1915 (e)(2), notwithstanding any filing fee or

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any portion thereof that may have been paid, "the court shall dismiss the case at

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any time if the court determines that . . . the action or appeal . . . is frivolous or

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malicious . . . or fails to state a claim." Pro se pleadings must be liberally

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construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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elements: (1) that a right secured by the Constitution or laws of the United States

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was violated, and (2) that the alleged violation was committed by a person acting

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

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B.

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Legal Claims
The Due Process Clause does not require the state to protect the life,

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liberty and property of its citizens against invasion by private actors. DeShaney

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v. Winnebago County Dep't of Social Services, 489 U.S. 189, 195 (1989).

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Consequently, the benefit that a party may receive from having someone arrested

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for a crime generally does not trigger protections under the Due Process Clause.

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Castle Rock v. Gonzales, 545 U.S. 748, 768 ( 2005). There are two exceptions –

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the "state-created danger" doctrine and the "special relationship" doctrine – but

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neither is implicated in this case.

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Unfortunately for plaintiff, his allegations that police officers failed to take

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a police report of a robbery against him, although troubling, fail to state a

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cognizable § 1983 claim for violation of his federal rights. Cf. at 768-69. But

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this is not to say that plaintiff is without remedy in the state courts, where he may

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well be able to pursue a claim for violation of state law.

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CONCLUSION
For the foregoing reasons, the complaint is DISMISSED for failure to
state claim under the authority of 28 U.S.C. § 1915(e)(2).
The clerk shall enter judgment in accordance with this order, terminate all

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pending motions as moot, and close the file.

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SO ORDERED.

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DATED: June 18, 2012

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CHARLES R. BREYER
United States District Judge
G:\PRO-SE\CRB\CR.12\Daniel, M.12-3008.dismissal.wpd

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