Fuller v. City of Richmond et al

Filing 13

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Lazaris Italo Fuller. Signed by Judge James Donato on 7/29/15. (lrcS, COURT STAFF) (Filed on 7/29/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

LAZARIS ITALO FULLER,

Case No. 15-cv-00980-JD

Plaintiff,
8
v.

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

9
10

CITY OF RICHMOND, et al.,
Defendants.

United States District Court
Northern District of California

11
12
Lazaris Fuller, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §

13
14

1983. He has been granted leave to proceed in forma pauperis.
DISCUSSION

15
16

I.

STANDARD OF REVIEW

17

Federal courts must engage in a preliminary screening of cases in which prisoners seek

18

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

19

§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

20

which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

21

monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

22

pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

23

Cir. 1990).

24

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

25

claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

26

factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

27

relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

28

cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

1

the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

2

omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

3

face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

4

standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

5

must be supported by factual allegations. When there are well-pleaded factual allegations, a court

6

should assume their veracity and then determine whether they plausibly give rise to an entitlement

7

to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

8
9

the Constitution or laws of the United States was violated, and (2) the alleged deprivation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

11
United States District Court
Northern District of California

10

II.

12
13
14

LEGAL CLAIMS
Fuller alleges that a police officer wrote a false report regarding his arrest that led to his

conviction.
In order to recover damages for an allegedly unconstitutional conviction or imprisonment,

15

or for other harm caused by actions whose unlawfulness would render a conviction or sentence

16

invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed

17

on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

18

make such determination, or called into question by a federal court’s issuance of a writ of habeas

19

corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim for damages bearing that

20

relationship to a conviction or sentence that has not been so invalidated is not cognizable under §

21

1983. Id. at 487.

22

Fuller states that on July 4, 2013, former police officer Harris wrote a false report alleging

23

that Fuller dragged a victim 66 feet across a parking lot. The police officer stated that he observed

24

Fuller ripping the stockings off the victim’s legs. Fuller states that he admitting to ripping the

25

stockings of the victim’s legs but was trying to get her to release the handle of his truck. Fuller

26

contends that the police officer lied about the stockings being 66 feet away from the initial attack.

27

For relief, Fuller seeks a hearing and he states that he lost his liberty and earnings due to a

28

deprivation of due process.
2

1

To the extent Fuller seeks to challenge the underlying conviction or present a claim of a

2

violation of due process or to challenge the evidence, he must file a habeas petition once the

3

claims have been exhausted. To the extent he seeks monetary damages he may only continue if

4

the sentence has been invalidated or reversed. Fuller does not describe the conviction or sentence

5

but it appears that an appeal is pending in the California Court of Appeal in People v. Fuller,

6

A143419. The complaint will be dismissed with leave to amend for Fuller address why this action

7

should not be dismissed pursuant to Heck and to more specifically describe the relief that he seeks.

8

CONCLUSION

9

1.

The complaint is DISMISSED with leave to amend. The amended complaint must

be filed within twenty-eight (28) days of the date this order is filed and must include the caption

11
United States District Court
Northern District of California

10

and civil case number used in this order and the words AMENDED COMPLAINT on the first

12

page. Because an amended complaint completely replaces the original complaint, plaintiff must

13

include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

14

Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

15

amend within the designated time will result in the dismissal of this action.

16

2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

17

Court informed of any change of address by filing a separate paper with the clerk headed “Notice

18

of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

19

do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

20

Civil Procedure 41(b).

21
22

IT IS SO ORDERED.
Dated: July 29, 2015

23
________________________
JAMES DONATO
United States District Judge

24
25
26
27
28
3

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

LAZARIS ITALO FULLER,

Case No. 15-cv-00980-JD

Plaintiff,
5
v.

CERTIFICATE OF SERVICE

6
7

CITY OF RICHMOND, et al.,
Defendants.

8
9
10

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

11
12
13
14
15

That on July 29, 2015, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

16
17
18

Lazaris Italo Fuller ID: V-63760
S.V.S.P. 1-B-29
P.O. Box 1050
Soledad, CA 93960

19
20
21

Dated: July 29, 2015

22
23

Richard W. Wieking
Clerk, United States District Court

24
25
26
27

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

28
4