Scott v. Lohman

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND (Certificate of Service Attached) Amended Complaint due by 2/8/2017. Signed by Judge Phyllis J. Hamilton on 1/6/17. (napS, COURT STAFF) (Filed on 1/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANE MYRON SCOTT,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-06977-PJH
ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
DALE BRADFORD LOHMAN,
Defendant.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §
1983. He has paid the filing fee.
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)

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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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The complaint is incomprehensible. It is not clear who is the defendant and the

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defendant’s relationship to plaintiff. It appears that the defendant is the deputy district

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attorney who prosecuted plaintiff’s criminal case. Complaint at 17, 21, 25.

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A state prosecuting attorney enjoys absolute immunity from liability under 42

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U.S.C. § 1983 for his conduct in "pursuing a criminal prosecution" insofar as he acts

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within his role as an "advocate for the State" and his actions are "intimately associated

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with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430-

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31 (1976). But prosecutors are entitled only to qualified immunity when they perform

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investigatory or administrative functions, or are essentially functioning as police officers

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or detectives. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

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To determine whether an action is judicial, investigative or administrative, courts
look at "the nature of the function performed, not the identity of the actor who performed
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it." Kalina v. Fletcher, 522 U.S. 118, 127 (1997).
Where the allegations in a complaint are "argumentative, prolix, replete with

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redundancy and largely irrelevant," the complaint is properly dismissed for failure to

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comply with Rule 8(a). McHenry v. Renne, 84 F.3d 1172, 1177, 1178-79 (9th Cir. 1996);

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see also Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981)

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(affirming dismissal of complaint that was "'verbose, confusing and almost entirely

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conclusory'"). But "verbosity or length is not by itself a basis for dismissing a complaint

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based on Rule 8(a)." Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1131 (9th

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Cir. 2008). A complaint, even if lengthy, is permissible if it is "coherent, well-organized,

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United States District Court
Northern District of California

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and state[s] legally viable claims." Id.
The complaint with exhibits is 167 pages and the court is unable to discern the

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nature of this action or the relief that plaintiff seeks. The complaint is dismissed with

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leave to amend to provide a shorter and clearer amended complaint describing plaintiff’s

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claims and the relief he seeks. This case was classified by the court as a prisoner civil

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rights action. Plaintiff has filed a notice that he filed this case as a personal property tort

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claim. However, if the sole defendant in this case is the prosecutor from plaintiff’s trial

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then the defendant would appear to be a state actor and § 1983 is applicable. If this is

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not a § 1983 action then plaintiff must describe in a clear and concise manner how the

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court has jurisdiction.

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CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than February

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8, 2017, and must include the caption and civil case number used in this order and the

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words AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the original complaint, plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may
not incorporate material from the original complaint by reference.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the
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cou informed of any change of address by filing a separ
urt
d
rate paper w the cle headed
with
erk

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“No
otice of Cha
ange of Address,” and must com
d
mply with the court's ord
e
ders in a tim
mely

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fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or

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pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).

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IT IS SO ORDER
S
RED.
Da
ated: January 6, 2017

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

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9.dcn\data\users\PJHALL\_psp\2
2016\2016_06977
7_Scott_v_Lohm
man_(PSP)\16-cv
v-06977-PJH-dw
wlta.docx

United States District Court
Northern District of California

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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DANE MYRO SCOTT,
D
ON
,

Case No. 1
16-cv-06977
7-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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DALE BRAD
D
DFORD LOH
HMAN,
Defendant.
.

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.
That on January 6, 2017, I SER
n
RVED a true and correct copy(ies) of the attache by
f
ed,
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Da Myron Scott ID: T51
ane
1397
Correctional Tr
raining Facility
P.O Box 705
O.
Sol
ledad, CA 93960

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ated: January 6, 2017
y
Da

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
N
Nichole Peric Deputy Cle to the
c,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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