Smith v. Hibbard

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Amended Complaint due by 7/5/2016. Signed by Judge Phyllis J. Hamilton on 6/3/16. (Certificate of Service Attached)(napS, COURT STAFF) (Filed on 6/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONTE MARQUEE SMITH,

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Plaintiff,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.

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SUZI R. HIBBARD,

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Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-02637-PJH

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

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I.

STANDARD OF REVIEW
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)

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

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United States District Court
Northern District of California

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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

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had a tattoo, “MOB”, which was indicative of participation in the “Money Over Bitches”

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street gang. Complaint at 3, 27. Defendant concluded that plaintiff had an affiliation with

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that gang. Id. at 32. When plaintiff was transferred to state prison, the California
Department of Corrections and Rehabilitation (“CDCR”) classified plaintiff as a gang

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United States District Court
Northern District of California

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

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

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from the probation report. Id. at 3. Plaintiff states that CDCR has not adjusted his

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classifications status. The only defendant in this case is the probation officer from Contra

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Costa County who prepared the report and for relief plaintiff 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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officer is entitled to immunity from plaintiff's damages claim. See Demoran, 781 F.2d at

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158. Plaintiff will be provided one opportunity to amend to address these legal standards.
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USION
CONCLU

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1. The complaint is DISMISS
e
SED with le
eave to amend in acco
ordance wit the
th

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sta
andards set forth abov The am
t
ve.
mended com
mplaint mus be filed no later than July 5,
st
o
n

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2016, and mu include the caption and civil case numbe used in th order an the
ust
t
er
his
nd

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wo
ords AMENDED COMP
PLAINT on the first pa
age. Becau an ame
use
ended comp
plaint

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completely replaces the original com
mplaint, pla
aintiff must include in it all the cla
aims he

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United States District Court
Northern District of California

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wis
shes to present. See Ferdik v. Bonzelet, 96 F.2d 125 1262 (9t Cir. 1992 He may
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58,
th
2).
y
not incorporat material from the or
te
riginal comp
plaint by re
eference.
2. It is the plaintif respons
s
ff's
sibility to pro
osecute this case. Pla
aintiff must keep the
cou informed of any change of address by filing a separ
urt
d
rate paper w the cle headed
with
erk
“No
otice of Cha
ange of Address,” and must com
d
mply with the court's ord
e
ders in a tim
mely
fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or
pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).
IT IS SO ORDER
S
RED.
Da
ated: June 3, 2016

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

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2016\2016_02637
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bard_(PSP)\16-cv
v-02637-PJH-dw
wlta.docx

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4

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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
S.
C
hern Distric of Californ
ct
nia.
U.S District Court, North
That on June 3, 2016, I SER
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RVED a true and corre copy(ies of the atta
e
ect
s)
ached, by
pla
acing said copy(ies) in a postage paid envelo addres
c
ope
ssed to the person(s) h
hereinafter
list
ted, by depositing said envelope in the U.S. Mail, or by placing sa copy(ies into an
d
y
aid
s)
inte
er-office de
elivery receptacle locat in the C
ted
Clerk's office.

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

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Da
ated: June 3, 2016
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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C

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y:________
_________
_________
By
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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