Cobb v. Brignoni et al
Filing
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ORDER Granting 2 Motion to Proceed in forma pauperis and Dismissing action Sua Sponte for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1). Signed by Judge John A. Houston on 8/9/11. (All non-registered users served via U.S. Mail Service)(ecs)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOHN COBB,
v.
Plaintiff,
SAUL BRIGNONI,
SGT. HARTMAN,
BONNIE DUMANIS,
COUNTY OF SAN DIEGO DISTRICT
ATTORNEY’S OFFICE,
DOES 1 THROUGH 100,
Defendants.
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Civil No. 10cv2087 JAH (WMC)
ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[DOC. NO. 2]
AND
(2) DISMISSING ACTION SUA
SPONTE FOR FAILING TO STATE
A CLAIM UPON WHICH RELIEF
MAY BE GRANTED PURSUANT
TO 28 U.S.C. §§ 1915(e)(2)(b)(ii) &
1915A(b)(1)
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INTRODUCTION
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On October 7, 2010, Plaintiff, a non-prisoner appearing pro se, filed a complaint
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pursuant to 42 U.S.C. §§ 1983 and 1985, alleging Defendants violated his constitutional
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rights. Plaintiff concurrently filed a motion to proceed in forma pauperis. Doc. No. 2.
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DISCUSSION
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A.
MOTION TO PROCEED IFP
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Legal Standard
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All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$350. See 28 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay
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only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez
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v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
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2.
Analysis
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The Court finds that Plaintiff has submitted an affidavit which complies with 28
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U.S.C. § 1915(a)(1). Doc. No. 2.
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Plaintiff is currently unemployed and receives limited financial assistance from his
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father. He maintains that he owns a 1985 Buick and a house inherited from his mother,
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which Plaintiff believes is valued at $480,000 to $500,000. His father pays his property
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taxes, assessments and insurance. Plaintiff submits that he has received $4,633.70 in the
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past twelve months: $4,358.70 from his father, $130 from his bank for opening a new
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account and paying three online bills, and $140 for serving as a poll worker. Additionally,
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Plaintiff submits he has two bank accounts amounting to $20.96 available in cash. Based
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upon the information provided, this Court finds Plaintiff has sufficiently demonstrated
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that he is unable to pay the fees required to commence his suit. Therefore, the Court
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GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 2].
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B. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2)
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1.
Standard
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The Prison Litigation Reform Act (“PLRA”) obligates the Court to review
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complaints filed by all persons proceeding IFP. Under these provisions, the Court must
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sua sponte dismiss any complaint, or any portion thereof, which is frivolous, malicious,
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fails to state a claim, or which seeks damages from defendants who are immune. See 28
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U.S.C. §§ 1915(e)(2)(B).
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“[W]hen determining whether a complaint states a claim, a court must accept as
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true all allegations of material fact and must construe those facts in the light most
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favorable to the plaintiff.” Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) “parallels
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the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s duty
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to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept.,
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839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik
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v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).
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Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint “shall contain
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(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends
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. . ., (2) a short and plain statement of the claim showing that the pleader is entitled to
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relief, and (3) a demand for judgment for the relief the pleader seeks.” Fed.R.Civ.P. 8(a).
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Similarly, Rule 8(d) requires that “each averment of a pleading shall be simple, concise and
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direct.” Rule 8 is designed to provide defendants with fair notice of the claims against
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them and the grounds on which those claims rest. McKeever v. Block, 932 F.2d 795, 798
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(9th Cir. 1991); see McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
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The Supreme Court recently clarified the pleading requirement under Rule 8 in
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Ashcroft v. Iqbal, and stated “threadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” 129 S. Ct 1937, 1949 (2009).
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The Iqbal Court also reiterated the holding in Bell Atlantic Corp. v. Twombly, 550 U.S.
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544 (2007), that while Rule 8 “does not require ‘detailed factual allegations,’ . . . it [does]
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demand [] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
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Id. (citing Twombly, 550 U.S. at 555). Furthermore, “[t]he propriety of dismissal for
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failure to comply with Rule 8 does not depend on whether the complaint is wholly without
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merit . . . Rule 8(e), requiring each averment of a pleading to be ‘simple, concise, and
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direct,’ applies to good claims as well as bad, and is a basis for dismissal independent of
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Rule 12(b)(6).” McHenry, 84 F.3d at 1179.
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While the Court must construe pro se pleadings liberally and afford plaintiff the
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benefit of any doubt, even pro se litigants must allege, with at least some degree of
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particularity, overt acts taken by each defendant which support his claims. Haines v.
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Kerner, 404 U.S. 519, 520 (1972)(per curiam). Under Rule 8 of the Federal Rules of Civil
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Procedure, the facts alleged in the complaint must be “plausible,” not merely
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“conceivable.” Ashcroft v. Iqbal, 129 S. Ct. at 1951. A plaintiff’s “obligation to provide
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the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and
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a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
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U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 296 (1986)).
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Section 1983 imposes two essential proof requirements upon a claimant: (1) that
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a person acting under color of state law committed the conduct at issue, and (2) that the
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conduct deprived the claimant of some right, privilege, or immunity protected by the
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Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell,
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541 U.S. 637, 124 S.Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354
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(9th Cir. 1985) (en banc).
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2.
Analysis
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The Court is unable to determine the exact nature of plaintiff’s allegations against
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Defendants. Plaintiff alleges sixteen causes of action against four defendants. See Doc.
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No. 1. With respect to Defendants District Attorney Bonnie Dumanis, the County of San
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Diego District Attorney’s Office, and Sergeant Hartman, Plaintiff fails to allege with
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particularity facts that Defendants violated his rights. For example, Plaintiff claims
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“Defendants are continually conspiring to retaliate against Plaintiff for having exercised
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his First Amendment rights. This retaliation involves repeatedly violating Plaintiff’s
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Fourth Amendment right to liberty.” See Doc. No. 1 at 34-35. Plaintiff continues,
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claiming “Defendants are involved in a perpetually running fishing expedition, so as to
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find facts and/or fabricate facts, which will then be used to prejudice this case and any
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other case (criminal or civil) Plaintiff would be involved in.” Yet Plaintiff never specifically
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lists any relevant actions taken by Defendants.
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Plaintiff claims Defendant Brignoni is employed by CHP and violated Plaintiff’s
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rights under color of state law. See Doc. No. 1 at 29. After parsing through Plaintiff’s
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convoluted complaint, it appears that Plaintiff may believe Defendant Brignoni lacked
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reasonable suspicion to temporarily detain Plaintiff for a statutory vehicle code violation.
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See Doc. No. 1 24. It is difficult, however, to separate the allegations against Defendant
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Brignoni that would support such a claim from his convoluted and unsubstantiated
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allegations. For example, Plaintiff claims that Defendant Brignoni conspired with local
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officials to entrap Plaintiff in order to obtain evidence to use against him in other pending
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cases. See Doc . No. 1 at 29. While this claim may be conceivable, it is not plausible and
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Plaintiff offers no particular explanation for its foundation. Even accepting this claim,
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parsed from the litany of convoluted claims that Plaintiff makes, as true, Plaintiff does not
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state a claim upon which relief may be granted. See Whren v. United States, 517 U.S.
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806, 116 S. Ct. 1769 (1996) (finding that pretext is irrelevant where stop for traffic
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violation is reasonable under Fourth Amendment). As previously stated, although the
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Court must construe pro se pleadings liberally and afford plaintiff the benefit of any doubt,
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even pro se litigants must allege, with at least some degree of particularity, overt acts taken
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by each defendant which support his claims. Haines v. Kerner, 404 U.S. 519, 520
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(1972)(per curiam). In his complaint, Plaintiff fails to comply with the aforementioned
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standard.
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For these reasons, the Court finds that Plaintiff’s Complaint fails to state a claim
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upon which relief may be granted, and therefore, it must be dismissed sua sponte pursuant
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to 28 U.S.C. § 1915(e)(2).
CONCLUSION
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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Proceed In
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Forma Pauperis is GRANTED and the complaint is DISMISSED.
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Dated:
August 9, 2011
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JOHN A. HOUSTON
United States District Judge
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