Pulido v. Alameda County

Filing 5

ORDER OF DISMISSAL and granting 4 MOTION for Leave to Proceed in forma pauperis filed by Rodolfo Pulido. Signed by Judge Charles R. Breyer on 1/3/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 1/4/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RODOLFO PULIDO,
Plaintiff(s),

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vs.

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ALAMEDA COUNTY, et al.,

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Defendant(s).

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No. C 12-6401 CRB (PR)
ORDER OF DISMISSAL
(Docket # 4)

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

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while he was recently detained at the Alameda County Jail, he discovered that

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Alameda County had failed to remove from its records a prior case against him

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that was dismissed or expunged in 2007. Plaintiff seeks damages and leave to

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proceed in forma pauperis under 28 U.S.C. § 1915.

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DISCUSSION
A.

Standard of Review
Federal courts must engage in a preliminary screening of cases in which

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prisoners seek redress from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint

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"is frivolous, malicious, or fails to state a claim upon which relief may be

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granted," or "seeks monetary relief from a defendant who is immune from such

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relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri

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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.

Legal Claims

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The inaccuracy of records compiled or maintained by the government is

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not, standing alone, sufficient to state a claim of constitutional injury under the

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Due Process Clause. See Paul v. Davis, 424 U.S. 693, 711-714 (1976).1
Under California law, an inmate questioning the accuracy of any material

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contained in a record of his criminal history must file a written request with the

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agency holding the record. See Cal. Penal Code § 13324(a). After a formal

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request and denial by the agency, the inmate must refer the matter to

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administrative adjudication in accord with the rules of the local governing body.

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See id. § 13324(c). These regulations do not contain substantive predicates or

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mandatory language requiring any specific outcome when a determination on a

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request to amend information in a person's criminal record is made. The

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regulations state no criteria, for example, which must be found before a request

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will be granted or denied. A provision that merely provides procedural

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requirements, even if mandatory, cannot provide the basis for a constitutionally

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protected liberty interest. See Kentucky Dep't of Corrections v. Thompson, 490

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U.S. 454, 461-62 (1989); Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993).

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See, e.g., Reyes v. Supervisor of DEA, et al., 834 F.2d 1093, 1097 (1st
Cir. 1987) (no due process claim for false information maintained by police
department); Pruett v. Levi, 622 F.2d 256, 258 (6th Cir. 1980) (mere existence of
inaccuracy in FBI criminals files does not state constitutional claim).

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CONCLUSION
For the foregoing reasons, the complaint is DISMISSED for failure to

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state a claim of constitutional injury under the authority of 28 U.S.C. § 1915A(b).

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But based solely on his affidavit of poverty, plaintiff's request to proceed IFP

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(docket # 4) is GRANTED.

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The clerk is instructed to enter judgment in accordance with this order,

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terminate all pending motions as moot, and close the file.

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SO ORDERED.

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DATED:

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Jan. 3, 2013
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.12\Pulido, R.12-6401.dismissal.wpd

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