Ellis v. City of Pittsburg et al

Filing 21

ORDER dismissing complaint with leave to amend under 28 U.S.C. section 1915(e)(2)(B). Signed by Judge Joseph C. Spero on March 19, 2014. (jcslc2, COURT STAFF) (Filed on 3/19/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD RAY ELLIS,

Case No. 14-cv-00193-JCS

Plaintiff,
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v.

ORDER RE REVIEW UNDER 28
U.S.C. SECTION 1915

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CITY OF PITTSBURG, et al.,

Dkt. Nos. 1

Defendants.
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United States District Court
Northern District of California

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AND RELATED CASES:
3:14-CV-0194 JCS Ellis v. City of Pittsburg, et al.
3:14-CV-0195 JCS Ellis v. City of Pittsburg, et al.
3:14-CV-0196 JCS Ellis v. City of Pittsburg, et al.
3:14-CV-0197 JCS Ellis v. City of Pittsburg, et al.
3:14-CV-0198 JCS Ellis v. City of Pittsburg, et al.
3:14-CV-0199 JCS Ellis v. City of Pittsburg, et al.

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I.

INTRODUCTION
Plaintiff Donald Ray Ellis (“Plaintiff”) filed seven lawsuits against the City of Pittsburg

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(“City”) and City officials1 alleging that his constitutional rights were violated when he was

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racially profiled and subject to an unlawful search by a City of Pittsburg police officer. The Court

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previously granted Plaintiff’s application in each case to proceed in forma pauperis. The Court

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now considers whether the complaints must be dismissed under 28 U.S.C. § 1915(e)(2)(B), which

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In each of the seven above-captioned lawsuits, one city official is named as a defendant
alongside the City of Pittsburg: City Mayor Sal Evola is a defendant in Case No. 3:14-cv-0193;
Council Member Nancy Parent is a defendant in 3:14-cv-0194; City Manager Joe Sbranti is a
defendant in 3:14-cv-0195; Council Member William Casey is a defendant in 3:14-cv-0196;
Council Member Ben Johnson is a defendant in 4:14-cv-0197; Vice Mayor Pete Longmire is a
defendant in 3:14-cv-0198; Officer Thomas of the City of Pittsburg Police Department is a
defendant in 3:14-cv-0199.

requires dismissal of an in forma pauperis complaint that is frivolous or malicious or fails to state
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a claim. Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). For the reasons explained below, the
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Court finds that Plaintiff has failed to state a claim and DISSMISSES the complaints WITH
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LEAVE TO AMEND.2

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II.

BACKGROUND
The complaint in each case essentially pleads the same few factual allegations. Plaintiff

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United States District Court
Northern District of California

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states that he was racially profiled as part of “an underground railroad racial movement.” Ellis v.
Evola, No. 14-0193, Dkt. No. 1. On April 4, 2013, Officer Thomas of the City of Pittsburg Police
Department wrote Plaintiff a ticket for an open container and then searched Plaintiff’s non-seethrough, black bag. In one of the complaints, Plaintiff alleges that Officer Thomas told Plaintiff
that he was instructed to ticket Plaintiff because the City did not have enough money to pay for
pensions. Ellis v. Parent, No. 14-0194, Dkt. No. 1.
Plaintiff states that this was an unconstitutional search by Officer Thomas in violation of

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the Fourth Amendment. Plaintiff alleges that the search was motivated by race. Aside from

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Officer Thomas, Plaintiff alleges that every other individually named defendant—which includes

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the City of Pittsburg’s Mayor, Vice Mayor, City Manager and City Council Members—is liable

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for the unlawful search undertaken by Officer Thomas in his or her capacity as supervisor.

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Plaintiff does not allege than any of these city officials were at the scene of the search.

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Plaintiff has consented to the jurisdiction of the undersigned magistrate judge pursuant to
28 U.S.C. § 636(c). Although a magistrate judge does not have jurisdiction over an action unless
all parties have consented, the court does not require the consent of Defendants in order to
properly dismiss claims because Defendants have not been served, and, as a result, are not yet
parties to this action. See Neals v. Norwood, 59 F.3d 520, 532 (5th Cir. 1995) (holding that
magistrate judge had jurisdiction to dismiss prison inmate’s action under 42 U.S.C. § 1983 as
frivolous without consent of defendants because defendants had not been served yet and therefore
were not parties); see also United States v. Real Prop., 135 F.3d 1212, 1217 (8th Cir. 1998)
(holding the magistrate judge had jurisdiction to enter default judgment in in rem forfeiture action
even though property owner had not consented to it because 18 U.S.C. § 636(c)(1) only requires
the consent of the parties and the property owner, having failed to comply with the applicable
filing requirements, was not a party).

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III.

DISCUSSION

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A.

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Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1), and is granted leave

Legal Standard

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to proceed in forma pauperis, courts must engage in a preliminary screening and dismiss any

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claims which: (1) are frivolous and malicious; (2) fail to state a claim on which relief may be

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granted; or (3) seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915(e)(2)(B). In determining whether a plaintiff fails to state a claim, the Court

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assumes that all factual allegations in the Complaint are true. Parks Sch. of Bus. v. Symington, 51

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United States District Court
Northern District of California

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F.3d 1480, 1484 (9th Cir. 1990). However, “the tenet that a court must accept a complaint’s
allegations as true is inapplicable to … mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009). The pertinent question is whether the factual allegations, assumed to be true,
“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).

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B.

Analysis

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Plaintiff alleges that Officer Thomas conducted an unlawful search in violation of the
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Fourth Amendment. Under 42 U.S.C. § 1983, an individual may assert a claim alleging a
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deprivation of a constitutional right, such as the right under the Fourth Amendment to be free of
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unreasonable searches and seizers. To state a claim a claim under § 1983 regarding Officer
Thomas’s allegedly unlawful search, Plaintiff must plead sufficient facts to show “that a search or
seizure occurred and that the search or seizure was unreasonable.” Freece v. Clackamas Cnty.,
442 F.Supp.2d 1080, 1086 (D. Or. 2006) (citing Brower v. County of Inyo, 489 U.S. 593, 599
(1989)). There must be an adequate factual basis in the complaint to “state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 547).
There are insufficient facts alleged in Plaintiff’s complaints. While Plaintiff alleges that he
was searched, there are no factual allegations which permit the inference that the search was
“unreasonable.” Freece, 442 F.Supp.2d at 1086. Officers may briefly detain and frisk individuals
they have a reasonable suspicion are committing a crime. See generally, Terry v. Ohio, 392 U.S. 1
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(1968). Plaintiff does not allege what he was doing when he was stopped and searched, or any
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facts about the search. Thus, the Court cannot determine that Officer Thomas’s search was
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unreasonable. Moreover, Plaintiff alleges that Officer Thomas wrote Plaintiff a ticket for having
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an open container, which permits the inference that Plaintiff was not abiding the law when he
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encountered Officer Thomas. While this does not necessarily render the search constitutional, the
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scarce facts in the complaints do not show that the search was unconstitutional.
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Furthermore, even if Plaintiff had alleged sufficient facts to support a claim against Officer
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Thomas, there are insufficient facts to state a claim against any other named defendant in this
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action. With the exception of Officer Thomas, Plaintiff asserts no factual allegations against any
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of the individual defendants, and seems to allege that the individual defendants are liable as
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supervisors of Officer Thomas. To establish supervisor liability under § 1983, Plaintiff must
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United States District Court
Northern District of California

allege facts showing that “the supervisor participated in or directed the violations, or knew of the
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violations [of subordinates] and failed to act to prevent them.’ ” Preschooler II v. Clark County
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Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) (citing Taylor v. List, 880 F.2d 1040,
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1045 (9th Cir. 1989). Plaintiff has not alleged facts showing that that the Mayor, Vice Mayor,
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City Manager and Council Members were supervisors of Officer Thomas, or were in any way
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involved in or responsible for Officer Thomas’s conduct leading up to and during the search.
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Thus, Plaintiff has not pled stated a claim under § 1983 under a theory of supervisor liability.
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Nor has Plaintiff stated a claim under a theory of Monell liability. In Monell v.
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Department of Social Services, the Supreme Court held that a municipality may be liable under §
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1983 for constitutional violations that result from enforcement of the municipality’s official
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“policies and customs.” 436 U.S. 658, 694 (1978). “There are three ways to show a policy or
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custom of a municipality: (1) by showing ‘a longstanding practice or custom which constitutes the
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standard operating procedure of the local government entity;’ (2) ‘by showing that the decision24
making official was, as a matter of state law, a final policymaking authority whose edicts or acts
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may fairly be said to represent official policy in the area of decision;’ or (3) ‘by showing that an
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official with final policymaking authority either delegated that authority to, or ratified the decision
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of, a subordina
ate.’ ” Menot v. City of Seattle, 409 F.3d 1113, 1147 (9th C 2005) (ci
tti
Cir.
iting Ulrich
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C
ty.
rancisco, 308 F.3d 968, 9
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984–85 (9th Cir.2002) (internal quo
h
otations
v. City and Cnt of San Fr
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om
mitted)). The facts allege in the com
e
ed
mplaints do n establish any policy o custom in the City of
not
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or
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Pittsburg to con
nduct uncon
nstitutional se
earches. Th Plaintiff has not pled sufficient f
hus,
f
d
facts to
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establish a § 19 claim un
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nder the theo of Monel liability.
ory
ll
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Accord
dingly, the Court finds th Plaintiff h failed to state a claim under § 19
hat
has
m
983
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garding the alleged depri
a
ivation of his constitutio rights. T complai are dism
s
onal
The
ints
missed under
reg
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29 U.S.C. § 1915(e)(2)(B).
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IV.

CONCLUSION
easons, the complaints in the abovec
n
-captioned actions are D
DISMISSED
For the foregoing re

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WI
ITH LEAVE TO AMEN Plaintiff has thirty (
E
ND.
f
(30) days wit
thin the issu date of thi order to
ue
is
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United States District Court
Northern District of California

file an amended complaint in each case If Plaintif does not fi an amend complain the Clerk
e
e.
ff
file
ded
nt,
k
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is directed to cl
d
lose the file in each case
e.
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Plaintif is encourag to conta the Legal Help Cente of the Just & Diversity Center
ff
ged
act
l
er
tice
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of the Bar Asso
t
ociation of San Francisco, Room 279 15th Flo 450 Gold Gate Av
S
96,
oor,
den
venue, San
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Fra
ancisco, Cali
ifornia. App
pointments can be made by signing u in the app
c
up
pointment bo located
ook
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on the table ou
utside of the door of the Legal Help C
d
L
Center or by calling (415 782-8982.
y
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IT IS SO ORDER
S
RED.
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ated: March 19, 2014
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Da
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___
__________
___________
__________
________
JO
OSEPH C. SP
PERO
Un
nited States M
Magistrate Ju
udge

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