Price v. Scott et al

Filing 23

ORDER DISMISSING CIVIL ACTION for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). The Court dismisses Plaintiff's Second Amended Complaint and this civil action in its entirety for failin g to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), denies leave to further amend as futile, see Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) ("A district court may d eny leave to amend when amendment would be futile."), certifies that an IFP appeal of this Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and directs the Clerk of Court to enter judgment and close the file. Signed by Judge Dana M. Sabraw on 2/28/2017.(All non-registered users served via U.S. Mail Service)(aef) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 IMMANUEL C. PRICE, CDCR #G-51247, ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b)(1) Plaintiff, 13 vs. 14 15 Case No.: 3:16-cv-00411-DMS-NLS TINA SCOTT, et al. Defendants. 16 17 18 19 20 IMMANUEL C. PRICE (“Plaintiff”), a prisoner currently incarcerated at California 21 State Prison, Los Angeles County, in Lancaster, California, is proceeding pro se in this 22 civil rights action filed pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave 23 to proceed in forma pauperis, but dismissed his First Amended Complaint (“FAC”) for 24 failing to state a claim with leave to amend. (ECF Nos. 16.) Plaintiff has since filed a 25 Second Amended Complaint (“SAC”) (ECF No. 19), but because it still fails to state a 26 claim, the Court now dismisses the entire action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) 27 and § 1915A(b)(1) without further leave to amend. 28 /// 1 3:16-cv-00411-DMS-NLS 1 Background 2 Plaintiff continues to contend, as he did in both his original and FAC, that City of 3 La Mesa Police Department Sergeant K. Lynch, Detective Tina Scott, and an unidentified 4 “John Doe” San Diego County Jail property officer violated his Fourth Amendment rights 5 after his arrest due to a “domestic dispute with his spouse” on February 28, 2014.1 (ECF 6 No. 19 at 3.) He seeks $200,000 in general and punitive damages, in addition to $100,000 7 for his “pain and suffering.” (Id. at 8.) 8 9 Discussion A. Legal Standards for Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 10 Because Plaintiff remains a prisoner and is proceeding IFP, his SAC requires a pre- 11 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). “The purpose of 12 § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not bear the 13 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 14 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 15 “The standard for determining whether a plaintiff has failed to state a claim upon which 16 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 17 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 18 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 19 (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in 20 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 21 22 23 24 25 26 27 28 Plaintiff’s FAC also alleged a “due process” violation against the unknown John Doe San Diego County Jail Property Officer based on the deprivation of his property. See FAC (ECF No. 12) at 3. While the Court also dismissed those claims with leave to amend, Plaintiff’s SAC alleges only a Fourth Amendment violation. (ECF No. 19 at 3-4). Therefore, Plaintiff’s due process claims are considered waived. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.”). 1 2 3:16-cv-00411-DMS-NLS 1 The Prison Litigation Reform Act requires the Court to review complaints filed by 2 all persons proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained 3 in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 4 criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary 5 program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 6 1915A(b). Under these screening statutes, the Court must sua sponte dismiss complaints, 7 or any portions of them, which are frivolous, malicious, fail to state a claim, or which seek 8 damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); 9 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 10 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 11 U.S.C. § 1915A(b)). 12 All complaints must contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are not 14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 16 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether a 17 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 18 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 19 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 20 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 21 “When there are well-pleaded factual allegations, a court should assume their 22 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 23 Iqbal, 556 U.S. at 679. The court “ha[s] an obligation where the petitioner is pro se, 24 particularly in civil rights cases, to construe the pleadings liberally and to afford the 25 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 26 2010), but it “may not supply essential elements of the claim that were not initially pled.” 27 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (citations 28 omitted). 3 3:16-cv-00411-DMS-NLS 1 B. Allegations in Second Amended Complaint 2 Plaintiff’s SAC repeats the same essential facts as did his FAC: he contends that he 3 was arrested at his home on February 28, 2014, after an “alleged domestic dispute with 4 [his] spouse, Sherra Johnson,” and was thereafter booked into San Diego County Jail, 5 where “a set of keys to Plaintiff’s car and then residence,” were seized and held by a “John 6 Doe” property officer. (SAC at 3.) Plaintiff claims Detective Scott and Lynch, as part of 7 their investigation, “obtained a letter” asking the San Diego Jail property office to “turn 8 over Plaintiff’s keys,” which were then used, with Johnson’s permission, to access the 9 residence Plaintiff admits he “shared” with his spouse. (SAC at 3-4.) Plaintiff claims this 10 violated his right to be free of “unreasonable search and seizure” because it happened “[a]ll 11 without [his] consent.” (Id. at 4.) 12 Plaintiff’s SAC, like his FAC, still fails to state a Fourth Amendment claim upon 13 which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b). This is 14 because he continues to allege his keys were on his person at the time of his arrest, and 15 seized when he was booked at the San Diego County Jail. “At the stationhouse, it is entirely 16 proper for police to remove and list or inventory property found on the person or in the 17 possession of an arrested person who is to be jailed.” Illinois v. Lafayette, 462 U.S. 640, 18 646 (1983). Searches during the booking process are “incidental administrative step[s]” 19 that do not violate either the Fourth Amendment’s preclusion against warrantless searches 20 and seizures, id. at 643-48, or the California Constitution. People v. Hovey, 44 Cal.3d 543, 21 570-71 (1988); see also Vetter v. Ayers, No. CV 06-1728-R (RC), 2009 WL 3672829, at 22 *8 (C.D. Cal. Nov. 3, 2009) (finding no Fourth Amendment violation based on booking 23 search at Long Beach Police Station and seizure of address book found in defendant’s 24 pants). 25 To the extent Plaintiff also continues to challenge the validity of a warrantless entry 26 of his home after he was arrested, he fares no better, for he admits Defendants delivered 27 his keys to Johnson, whom he admits used them to “gain access” into their “shared 28 residence.” See ECF No. 19 at 4. The Supreme Court’s cases “firmly establish that police 4 3:16-cv-00411-DMS-NLS 1 officers may search [or enter] jointly occupied premises if one of the occupants consents.” 2 Fernandez v. California, 134 S. Ct. 1126, 1129 (2014). For example, a person with 3 common authority over property can consent to a search of that property, or in this case to 4 enter into such property, without the permission of the other persons with whom she shares 5 that authority. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); see also Roston v. Long, 6 No. 15-CV-00729-YGR (PR), 2016 WL 1191686, at *11 (N.D. Cal. Mar. 28, 2016). 7 Plaintiff’s spouse’s use of his keys to permit Defendants to “gain access” to their “shared 8 residence,” (SAC at 4), is a valid entry even if, as is the case here, he later objects but was 9 “absent due to a lawful detention or arrest.” Fernandez, 134 S. Ct. at 1134; see also United 10 States v. Moore, 770 F.3d 809, 813 (9th Cir. 2014) (Fourth Amendment permitted police 11 to use battering ram to gain access to the home defendant shared with his fiancée, where 12 fiancée was locked out and expressly consented to warrantless search). 13 Based on this authority, the Court finds Plaintiff’s Second Complaint still fails to 14 state a plausible Fourth Amendment claim. See Lopez, 203 F.3d at 1126-27; Rhodes, 621 15 F.3d at 1004. 16 Conclusion and Order 17 The Court dismisses Plaintiff’s Second Amended Complaint and this civil action in 18 its entirety for failing to state a claim upon which relief can be granted pursuant to 28 19 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), denies leave to further amend as futile, see 20 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave 21 to amend when amendment would be futile.”), certifies that an IFP appeal of this Order 22 would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and directs the Clerk 23 of Court to enter judgment and close the file. 24 25 IT IS SO ORDERED. Dated: February 28, 2017 26 27 28 5 3:16-cv-00411-DMS-NLS

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