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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANE MYRON SCOTT, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.16-cv-06977-PJH ORDER OF DISMISSAL WITH LEAVE TO AMEND v. DALE BRADFORD LOHMAN, Defendant. 12 13 14 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 15 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 21 may be granted, or seek monetary relief from a defendant who is immune from such 22 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 23 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 25 of the claim showing that the pleader is entitled to relief." "Specific facts are not 26 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 27 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 28 (citations omitted). Although in order to state a claim a complaint “does not need detailed 1 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 2 to relief' requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do. . . . Factual allegations must be enough to 4 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 6 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 7 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 8 conclusions can provide the framework of a complaint, they must be supported by factual 9 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.” 11 United States District Court Northern District of California 10 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 LEGAL CLAIMS 17 The complaint is incomprehensible. It is not clear who is the defendant and the 18 defendant’s relationship to plaintiff. It appears that the defendant is the deputy district 19 attorney who prosecuted plaintiff’s criminal case. Complaint at 17, 21, 25. 20 A state prosecuting attorney enjoys absolute immunity from liability under 42 21 U.S.C. § 1983 for his conduct in "pursuing a criminal prosecution" insofar as he acts 22 within his role as an "advocate for the State" and his actions are "intimately associated 23 with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430- 24 31 (1976). But prosecutors are entitled only to qualified immunity when they perform 25 investigatory or administrative functions, or are essentially functioning as police officers 26 or detectives. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 27 28 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 2 1 2 it." Kalina v. Fletcher, 522 U.S. 118, 127 (1997). Where the allegations in a complaint are "argumentative, prolix, replete with 3 redundancy and largely irrelevant," the complaint is properly dismissed for failure to 4 comply with Rule 8(a). McHenry v. Renne, 84 F.3d 1172, 1177, 1178-79 (9th Cir. 1996); 5 see also Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) 6 (affirming dismissal of complaint that was "'verbose, confusing and almost entirely 7 conclusory'"). But "verbosity or length is not by itself a basis for dismissing a complaint 8 based on Rule 8(a)." Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1131 (9th 9 Cir. 2008). A complaint, even if lengthy, is permissible if it is "coherent, well-organized, 10 United States District Court Northern District of California 11 and state[s] legally viable claims." Id. The complaint with exhibits is 167 pages and the court is unable to discern the 12 nature of this action or the relief that plaintiff seeks. The complaint is dismissed with 13 leave to amend to provide a shorter and clearer amended complaint describing plaintiff’s 14 claims and the relief he seeks. This case was classified by the court as a prisoner civil 15 rights action. Plaintiff has filed a notice that he filed this case as a personal property tort 16 claim. However, if the sole defendant in this case is the prosecutor from plaintiff’s trial 17 then the defendant would appear to be a state actor and § 1983 is applicable. If this is 18 not a § 1983 action then plaintiff must describe in a clear and concise manner how the 19 court has jurisdiction. 20 CONCLUSION 21 1. The complaint is DISMISSED with leave to amend in accordance with the 22 standards set forth above. The amended complaint must be filed no later than February 23 8, 2017, and must include the caption and civil case number used in this order and the 24 words AMENDED COMPLAINT on the first page. Because an amended complaint 25 completely replaces the original complaint, plaintiff must include in it all the claims he 26 27 28 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 3 1 cou informed of any change of address by filing a separ urt d rate paper w the cle headed with erk 2 “No otice of Cha ange of Address,” and must com d mply with the court's ord e ders in a tim mely 3 fas shion. Failu to do so may resul in the dism ure o lt missal of th action fo failure to prosecute his or 4 pursuant to Federal Rule of Civil Pr e rocedure 41 1(b). 5 6 IT IS SO ORDER S RED. Da ated: January 6, 2017 7 8 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 9 10 \\can ndoak.cand.circ9 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 UNITED STATES D D DISTRICT C COURT 3 NORTHER DISTRIC OF CALI RN CT IFORNIA 4 5 DANE MYRO SCOTT, D ON , Case No. 1 16-cv-06977 7-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 DALE BRAD D DFORD LOH HMAN, Defendant. . 9 10 United States District Court Northern District of California 11 12 13 14 15 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. . 16 17 18 Da Myron Scott ID: T51 ane 1397 Correctional Tr raining Facility P.O Box 705 O. Sol ledad, CA 93960 19 20 21 ated: January 6, 2017 y Da 22 23 Su usan Y. Soon ng Cl lerk, United States Distr Court d rict 24 25 26 27 By y:_________ ___________ _______ N Nichole Peric Deputy Cle to the c, erk H Honorable PH HYLLIS J. H HAMILTON N 28 5

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