Ellis v. City of Pittsburg et al

Filing 26

ORDER by Judge Joseph C. Spero re second review under 28 U.S.C. section 1915; denying (24) Motion; denying (25) Motion in case 3:14-cv-00193-JCS (jcslc2, COURT STAFF) (Filed on 4/25/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD RAY ELLIS,
Plaintiff,

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v.

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CITY OF PITTSBURG, et al.,

United States District Court
Northern District of California

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

Defendants.

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Case No. 14-cv-00193-JCS

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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also dismissed Plaintiff’s original complaints under 28 U.S.C. § 1915(e)(2)(B), which requires

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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.

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United States District Court
Northern District of California

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dismissal of an in forma pauperis complaint that is frivolous or malicious or fails to state a claim.
Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Plaintiff was granted leave to amend.
On March 28, 2014, Plaintiff filed the same First Amended Complaint in each of the
above-captioned cases. For the reasons explained below, the Court finds that the First Amended
Complaint states a claim under 40 U.S.C. § 1983 only against Officer Thomas in Ellis v. City of
Pittsburg, et al., No. 14-0199 (N.D. Cal.), regarding an allegedly unlawful search in violation of
the Fourth Amendment. All other actions, and all claims against all other defendants, are
DISMISSED WITH PREJUDICE.2
II.

BACKGROUND
The First Amended Complaint alleges that on April 4, 2013, Plaintiff was racially profiled

and discriminated against in an “underground railroad racial movement.” First Amended
Complaint (“FAC”) at 1. Plaintiff was walking to the post office to check his mail when he was
stopped by Officer Thomas, who was patrolling in his police car. Id. Plaintiff states that he was
stopped on the corner of 8th Street and Los Medanos near the post office. This area is in a mixedrace neighborhood where African Americans and other people of color frequent. Id.

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Plaintiff alleges that when he was stopped by Officer Thomas, he was carrying a non-see-

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through bag. Plaintiff does not deny that, inside the bag, there was an open container of alcohol.

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However, Plaintiff states he was not drinking from the container when Officer Thomas saw him

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from his patrol car. Id. Plaintiff alleges that Officer Thomas searched his non-see-through bag

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and harassed him and wrote him a ticket for having an open container. Id.

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Aside from Officer Thomas, Plaintiff alleges that every other individually named

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defendant—which includes the City of Pittsburg’s Mayor, Vice Mayor, City Manager and City

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Council Members—is liable for the unlawful search undertaken by Officer Thomas in his or her

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capacity as supervisor. Plaintiff does not allege that any of these city officials were at the scene of

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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).
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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

The Court construes the First Amended Complaint as stating a claim under 42 U.S.C. §
1983, under which an individual may allege a deprivation of a constitutional right, such as the
right under the Fourth Amendment to be free of unreasonable search and seizure. To state 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)).
Officers may only briefly detain and frisk individuals they have a reasonable suspicion are
committing a crime. See Terry v. Ohio, 392 U.S. 1 (1968). In this case, the question is whether
Officer Thomas had a reasonable suspicion that Plaintiff was committing a crime−or an infraction
such as having an open container in an unauthorized location. See Cal. Bus. & Prof. Code §
25620(a). Plaintiff alleges that he was walking to the post office to check his mail when he was
stopped by Officer Thomas, who searched his non-see-through bag. The mere fact Plaintiff was
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carrying a non-see-through bag does not create a reasonable suspicion that Plaintiff was carrying
an open container inside the bag. Unlike other cases in which courts have found reasonable
suspicion, Plaintiff was not standing in front of a liquor store or drinking out of the container in
the bag. Cf. People v. Brewer, 235 Cal.App.3d 909, 911 (Cal. Ct. App. 1991). Construing the
ambiguities in the First Amended Complaint in favor of Plaintiff, there are sufficient allegations
that, if proven true, show Officer Thomas committed an unlawful search.
Although Plaintiff states a claim against Officer Thomas, there are insufficient facts to

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United States District Court
Northern District of California

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state a claim against any other named defendant in this action under the theory of supervisor or
Monell liability. In the previous order dismissing Plaintiff’s original complaints, the Court
explained that to establish supervisor liability under § 1983, Plaintiff must allege facts showing
that “the supervisor participated in or directed the violations, or knew of the violations [of
subordinates] and failed to act to prevent them.’ ” Preschooler II v. Clark County Sch. Bd. of
Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). The Court also explained that to establish municipal liability under the Supreme Court’s
decision in Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), Plaintiff must
allege facts showing that a constitutional violation results from a municipality’s official “policies
and customs.” See id. at 694. Plaintiff has not alleged any facts in the First Amended Complaint
to support a claim under either theory. Accordingly, Plaintiff has failed to state a claim against the
City of Pittsburg or any other individual defendant in these actions. These claims are
DISMISSED WITH PREJUDICE under 29 U.S.C. § 1915(e)(2)(B).3
IV.

CONCLUSION
For the foregoing reasons, the First Amended Complaint states a claim against Officer

Thomas regarding unlawful search in violation of the Fourth Amendment. All other claims in all
of the above captioned cases are DISMISSED WITH PREJUDICE. Because Officer Thomas is
only a named defendant in Ellis v. City of Pittsburg, et al., No. 14-0199, the Clerk is directed to
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Plaintiff filed two documents which he calls “Motions” in Ellis v. City of Pittsburg, et al.,
No. 14-0193, Dkt. Nos. 24-25. The “Motions” do not seek any specific form of relief and are
DENIED.
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clo the file in the other ab
ose
n
bove-caption cases. T U.S. Ma
ned
The
arshal shall s
serve Officer Thomas
r
wit the First Amended Co
th
A
omplaint in Ellis v. City o Pittsburg, et al., No. 14-0199, as well as a
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of
g,
cop of this Or
py
rder.
Plaintif is encourag to conta the Legal Help Cente of the Just & Diversity Center
ff
ged
act
l
er
tice
of the Bar Asso
t
ociation of San Francisco, Room 279 15th Flo 450 Gold Gate Av
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96,
oor,
den
venue, San
Fra
ancisco, Cali
ifornia. App
pointments can be made by signing u in the app
c
up
pointment bo located
ook
on the table ou
utside of the door of the Legal Help C
d
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Center or by calling (415 782-8982.
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IT IS SO ORDER
S
RED.
Da
ated: April 25 2014
5,
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__________
___________
__________
________
JO
OSEPH C. SP
PERO
Un
nited States M
Magistrate Ju
udge

United States District Court
Northern District of California

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