Hunt v. Del Pozzo et al
Filing
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ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 1/14/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 1/14/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN FRANCISCO DIVISION
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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND
Plaintiff,
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v.
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No. C 12-4700 RS (PR)
ZACHARY HUNT,
RON N. DEL POZZO, et al.,
Defendants.
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/
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INTRODUCTION
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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state
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prisoner. The Court now reviews the complaint pursuant to 28 U.S.C. § 1915A(a).
DISCUSSION
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A.
Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity.
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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and
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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may
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be granted or seek monetary relief from a defendant who is immune from such relief. See id.
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No. C 12-4700 RS (PR)
ORDER DISMISSING COMPLAINT
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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica
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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
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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.” Id. (quoting
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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions
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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from
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United States District Court
For the Northern District of California
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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:
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that a right secured by the Constitution or laws of the United States was violated, and
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that the alleged violation was committed by a person acting under the color of state law. See
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West v. Atkins, 487 U.S. 42, 48 (1988).
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B.
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(1)
(2)
Legal Claims
Plaintiff alleges that (1) California state judge Ron Del Pozzo detained him without
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probable cause, and denied him various rights at his court appearances; (2) Judge Del Pozzo
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ordered two bailiffs to use excessive force on him; (3) those bailiffs used excessive force on
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him; (4) California state judge Philip Pennypacker denied him various rights during his court
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appearances; (5) San Jose Deputy District Attorney Daniel Okonkwo detained him without
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probable cause, and is guilty of the abuse of discretion and malicious prosecution. Plaintiff
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asks for money damages.
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Claims 1 and 4 are DISMISSED WITH PREJUDICE. A state judge is absolutely
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immune from civil liability for damages for acts performed in his judicial capacity. See
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Pierson v. Ray, 386 U.S. 547, 553–55 (1967). Ordering plaintiff detained pursuant to a
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court-process certainly qualifies as an act within a judge’s judicial capacity. Claim 2 is also
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DISMISSED WITH PREJUDICE. The facts alleged do not show that Judge Del Pozzo
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No. C 12-4700 RS (PR)
ORDER DISMISSING COMPLAINT
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ordered bailiffs to use excessive force against plaintiff. According to plaintiff, the bailiffs
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roughly removed him from the courtroom at the orders of Judge Del Pozzo. This does not
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constitute the ordering of the use of excessive force. Even if bailiffs handled plaintiff
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roughly after responding to Judge Del Pozzo’s orders, plaintiff has alleged no facts showing
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that defendant ordered such rough treatment, or that he acted in the clear absence of all
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jurisdiction. See Stump v. Sparkman, 435 U.S. at 356–57 (citing Bradley v. Fisher, 80 U.S.
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(13 Wall.) 335, 351 (1872)).
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Claim 3 may contain sufficient factual matter to state a claim for excessive force.
Plaintiff, however, fails to provide the names or any descriptions of these bailiffs.
United States District Court
For the Northern District of California
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Accordingly, these claims are DISMISSED with leave to amend. In his amended complaint,
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plaintiff must provide sufficient information to identify the bailiffs. Also, plaintiff must
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allege facts that show that the bailiffs used force maliciously and sadistically to cause harm,
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rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503
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U.S. 1, 6–7 (1992).
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Claim 3 is DISMISSED with leave to amend. In order to state a claim for damages
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for an allegedly unconstitutional conviction or term of imprisonment, or for other harm
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caused by actions whose unlawfulness would render a conviction or sentence invalid, a
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plaintiff asserting a violation of 42 U.S.C. § 1983 must prove that the conviction or sentence
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has been reversed or declared invalid. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
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The instant complaint contains no such showing. In his amended complaint, plaintiff must
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show that the resulting conviction has been reversed or declared invalid.
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Accordingly, the complaint is DISMISSED with leave to amend. Plaintiff shall file an
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amended complaint within 30 days from the date this order is filed. The amended complaint
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must address all the deficiencies listed above, and include the caption and civil case number
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used in this order (12-4700 RS (PR)) and the words FIRST AMENDED COMPLAINT on
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the first page. Because an amended complaint completely replaces the previous complaints,
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plaintiff must include in his first amended complaint all the claims he wishes to present and
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ORDER DISMISSING COMPLAINT
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all of the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
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1992). Any claims not raised in the first amended complaint will be deemed waived.
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Plaintiff may not incorporate material from the prior complaint by reference. Failure to file
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an amended complaint in accordance with this order will result in dismissal of this action
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without further notice to plaintiff.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court
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informed of any change of address by filing a separate paper with the clerk headed “Notice of
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Change of Address.” He must comply with the Court’s orders in a timely fashion or ask for
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an extension of time to do so. Failure to comply may result in the dismissal of this
United States District Court
For the Northern District of California
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action pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
DATED: January 14, 2013
RICHARD SEEBORG
United States District Judge
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