Freeman v. Borbeian et al

Filing 18

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge jame on 8/31/16. (lrcS, COURT STAFF) (Filed on 8/31/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RON FREEMAN,
Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
ED BORBEIAN, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-01848-JD

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Plaintiff, a detainee, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. The

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original complaint was dismissed with leave to amend and plaintiff has filed an amended

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complaint.
DISCUSSION

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STANDARD OF REVIEW

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

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

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

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

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

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

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Cir. 1990).

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

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

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

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

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

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

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

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

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

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

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

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by
the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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United States District Court
Northern District of California

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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In the original complaint, plaintiff stated that he wrote a book about jury tampering and he

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was attacked by a drug dealer and others in retaliation for the book. He also alleged that various

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people, including his ex-wife, were impersonating federal agents and police officers to conspire

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against him. For relief, plaintiff sought to stop the impersonations, prevent witness tampering, and

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prevent murder attempts against him. The complaint was dismissed with leave to amend to

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provide more information and to identify a state actor in order to proceed under 42 U.S.C. § 1983.

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In the amended complaint plaintiff seeks to disqualify the prosecutor in his ongoing

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criminal case. Under principles of comity and federalism, a federal court should not interfere with

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ongoing state criminal proceedings by granting injunctive or declaratory relief absent

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extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 43-54 (1971). Federal courts

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should not enjoin pending state criminal prosecutions absent a showing of the state’s bad faith or

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harassment, or a showing that the statute challenged is “flagrantly and patently violative of express

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constitutional prohibitions.” Younger, 401 U.S. at 46, 53-54 (cost, anxiety and inconvenience of

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criminal defense not kind of special circumstances or irreparable harm that would justify federal

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court intervention; statute must be unconstitutional in every “clause, sentence and paragraph, and

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in whatever manner” it is applied). The amended complaint is dismissed with leave to amend to
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address Younger.
CONCLUSION

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1.

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

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

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must include the caption and civil case number used in this order and the words SECOND

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AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces

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the original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the

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original complaint by reference. Failure to amend within the designated time will result in the

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United States District Court
Northern District of California

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

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

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

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

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: August 31, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RON FREEMAN,

Case No. 16-cv-01848-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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ED BORBEIAN, et al.,
Defendants.

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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

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That on August 31, 2016, 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.

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Ron Freeman ID: 0144493
Marin County Jail
13 Peter Behr Drive
San Rafael, CA 94903

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Dated: August 31, 2016

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Susan Y. Soong
Clerk, United States District Court

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

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