Padilla v. Livermore Police Department et al

Filing 12

ORDER GRANTING #2 APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT. Amended Pleadings due by 2/9/2012. Signed by Judge Claudia Wilken on 1/26/2012. (Attachments: #1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/26/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FIDEL PADILLA,

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United States District Court
For the Northern District of California

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No. 11-06608 CW

Plaintiff,

ORDER GRANTING
APPLICATION TO
PROCEED IN FORMA
PAUPERIS AND
DISMISSING
COMPLAINT

v.
LIVERMORE POLICE DEPARTMENT, et al.,

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Defendants.
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Plaintiff Fidel Padilla files an application for leave to

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proceed in forma pauperis (IFP).

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filed by Plaintiff, the Court grants the application to proceed IFP

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and dismisses the complaint.
DISCUSSION

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Having considered the papers

A court may authorize a plaintiff to prosecute an action in

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federal court without prepayment of fees or security if the

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plaintiff submits an affidavit showing that he or she is unable to

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pay such fees or provide such security.

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Plaintiff has submitted the required documentation, and it is

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evident from his application that his assets and income are

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insufficient to enable him to prosecute the action.

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the application to proceed without the payment of the filing fee is

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granted.

See 28 U.S.C. § 1915(a).

Accordingly,

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The Court’s grant of Plaintiff's application to proceed IFP,

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however, does not mean that he may continue to prosecute his

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complaint.

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filed without the payment of the filing fee whenever it determines

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that the action “(i) is frivolous or malicious; (ii) fails to state

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a claim on which relief may be granted; or (iii) seeks monetary

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relief against a defendant who is immune from such relief."

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U.S.C. § 1915(e)(2)(B)(i)-(iii).

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§ 1915(e)(2)(B) is not a dismissal on the merits, but rather an

A court is under a continuing duty to dismiss a case

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Because a dismissal pursuant to

United States District Court
For the Northern District of California

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exercise of the court's discretion under the IFP statute, the

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dismissal does not prejudice the filing of a paid complaint making

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the same allegations.

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Denton v. Hernandez, 504 U.S. 25, 32 (1992).

Plaintiff sues the Livermore Police Department and several

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Livermore police officers who were involved in arresting Plaintiff

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on June 18, 2009.

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his complaint, but attaches the two police reports describing the

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events that led up to his arrest.

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false arrest, falsification of police reports, harassment,

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negligence, invasion of privacy, hostage situation and lying.

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Plaintiff does not include any allegations in

Plaintiff asserts claims for

Plaintiff’s claims must be dismissed because he includes no

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allegations supporting his claims.

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support his claims.

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arrest under 42 U.S.C. § 1983 against the individual officers who

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were involved in his arrest.

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allegations that support such a claim.

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The police reports do not

Plaintiff may wish to assert a claim for false

However, he would have to add

Section 1983 "provides a cause of action for the 'deprivation
of any rights, privileges, or immunities secured by the
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Constitution and laws' of the United States."

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Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but

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merely provides a method for vindicating federal rights elsewhere

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conferred.

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state a claim under § 1983, a plaintiff must allege two essential

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elements:

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the United States was violated and (2) that the alleged violation

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was committed by a person acting under the color of state law.

Wilder v. Virginia

Graham v. Connor, 490 U.S. 386, 393-94 (1989).

To

(1) that a right secured by the Constitution or laws of

United States District Court
For the Northern District of California

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West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda County,

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811 F.2d 1243, 1245 (9th Cir. 1987).

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In order to state a cognizable civil rights claim for false

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arrest, Plaintiff would have to amend his complaint to name as

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Defendants the individuals responsible for violating his

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constitutional rights and he would have to provide specific factual

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allegations causally connecting each named individual with a

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constitutional deprivation.

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The other claims in Plaintiff’s complaint arise under state

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law.

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must provide in his amended complaint specific factual allegations

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causally connecting any named individual with a specific violation

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of state law.

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In order to state a cognizable state law claim, Plaintiff

Therefore, Plaintiff’s complaint is dismissed with leave to

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amend to remedy the deficiencies noted in this Order.

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chooses to file an amended complaint, he must do so within two

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weeks from the date of this order.

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complaint within two weeks, his complaint shall be dismissed for

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If Plaintiff

If he does not file an amended

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failure to prosecute.

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IT IS SO ORDERED.

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Dated: 1/26/2012
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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