Smith v. Hibbard

Filing 12

ORDER OF DISMISSAL (Certificate of Service Attached), ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 10/4/16. (napS, COURT STAFF) (Filed on 10/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONTE MARQUEE SMITH,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-02637-PJH
ORDER OF DISMISSAL

v.
SUZI R. HIBBARD,
Defendant.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §

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1983. The original complaint was dismissed with leave to amend and plaintiff has filed

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an amended 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

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(citations omitted). Although in order to state a claim a complaint “does not need detailed

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

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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allegations. When there are well-pleaded factual allegations, a court should assume their

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United States District Court
Northern District of California

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veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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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 two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff alleges that the probation officer preparing his probation report following

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his conviction improperly labeled him as a gang member.

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Absolute judicial immunity from damage actions under Section 1983 extends “not

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only to judges but also to officers whose functions bear a close association to the judicial

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process.” Demoran v. Witt, 781 F.2d 155, 156 (9th Cir.1985, as amended Jan. 24, 1986).

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The determination of whether an officer falls within the scope of absolute judicial

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immunity “turns on the nature of the responsibilities of the officer and the integrity and

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independence of his [or her] office.” Id.

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The Ninth Circuit has held that probation officers preparing presentencing reports

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for state court judges are entitled to absolute judicial immunity from personal damage

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actions brought under Section 1983. Id. at 158. The Ninth Circuit based its holding on
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the fact that probation officers preparing presentencing reports act “as an arm of the

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sentencing judge,’” and under a duty to engage in impartial fact-finding for that judge. Id.

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at 157 (citations omitted). In addition, the Ninth Circuit observed that “a plethora of

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procedural safeguards surround the filing of the presentencing report,” including the fact

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that the report is reviewed by the sentencing judge and is made available to defense

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counsel prior to the sentencing hearing. Id. at 158.

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In a probation report prepared on January 16, 2015, defendant noted that plaintiff
had a tattoo, “MOB”, which was indicative of participation in the “Money Over Bitches”

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street gang. Amended Complaint at 5, 31. Defendant concluded that plaintiff had an

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affiliation with that gang. Id. at 36. When plaintiff was transferred to state prison, the

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United States District Court
Northern District of California

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California Department of Corrections and Rehabilitation (“CDCR”) classified plaintiff as a

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gang member. Plaintiff states the gang classification by CDCR was solely due to the

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probation report. On March 4, 2016, the Superior Court judge agreed to strike the gang

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references from the probation report. Amended Complaint at 7. Plaintiff states that

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CDCR has not adjusted his classifications status. The only defendant in this case is the

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probation officer from Contra Costa County who prepared the report and for relief plaintiff

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seeks money damages.

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The defendant prepared the probation report pursuant to statutory duty and at the

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court’s direction. See Cal. Pen. Code § 1203(b)(1) (after a person is convicted and

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before judgment, “the court shall immediately refer the matter to a probation officer to

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investigate and report to the court, at a specified time, upon the circumstances

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surrounding the crime and the prior history and record of the person . . .”); see also

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County of Placer v. Super. Ct., 130 Cal. App.4th 807, 813–14 (2005) (explaining that

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when probation is granted the probation department acts an “arm or instrument of the

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court” and “in serving the court, the probation department must remain independent of

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prosecuting authorities”) (citations omitted).

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The function of the defendant probation officer in preparing a probation report in

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this case for the court was closely associated to the judicial process, and the probation
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off
ficer is entitled to immu
unity from plaintiff's da
p
amages cla
aim. See De
emoran, 781 F.2d at

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158. Plaintiff was grante an opportunity to am
ed
mend to ad
ddress the c
case law ab
bove and

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fendant’s im
mmunity. The amende complai nt contains similar alle
T
ed
s
egations to the original
def

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complaint and only state that defendant is no absolutely immune. Plaintiff’s c
d
es
ot
y
conlcusory

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alle
egations do not plausibly give rise to an ent itlement to relief in ligh of the leg
o
ht
gal

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sta
andards abo
ove. See Iq
qbal, 556 U.S. at 679. The comp
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plaint is dismissed for failure to

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sta a claim. Because allowing fur
ate
a
rther amend
dment wou be futile this case is dismissed
uld
s
d

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wit prejudice
th
e.
CONCLU
USION

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1. This action is DISMISSED with preju
s
D
D
udice for failure to stat a claim.
te

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United States District Court
Northern District of California

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2. The Clerk shall close this case.
e
s

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IT IS SO ORDER
S
RED.

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Da
ated: Octob 4, 2016
ber

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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2016\2016_02637
7_Smith_v_Hibb
bard_(PSP)\16-cv
v-02637-PJH-dis
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UNITED STATES D
DISTRICT C
COURT

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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DONTE MAR
RQUEE SM
MITH,

Case No. 16-cv-026
637-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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SUZI R. HIBBARD,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
U.S District Court, North
S.
C
hern Distric of Californ
ct
nia.
That on October 4, 2016, I SERVED a t
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S
true and co
orrect copy(
(ies) of the attached,
by placing said copy(ies) in a posta paid en velope add
age
dressed to t person(
the
(s)
hereinafter lis
sted, by dep
positing said envelope in the U.S. Mail, or by placing sa
d
e
y
aid
copy(ies) into an inter-of
o
ffice deliver receptaclle located in the Clerk office.
ry
k's

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onte Marque Smith ID AV9976
ee
D:
Do
P.O Box 5004
O.
Ca
alipatria, CA 92233
A

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ated: October 4, 2016
Da

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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C
y:________
_________
_________
By
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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