Oliver v. Beceraa

Filing 8

ORDER Sua Sponte Dismissing First Amended Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2). The Court dismisses Plaintiff's First Amended Complaint for failing to state a claim upon which § 1983 relief can be g ranted. Because the Court finds further amendment futile, leave to amend is denied. The Court further certifies that an IFP appeal from this Order of dismissal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge Larry Alan Burns on 8/3/2017.(All non-registered users served via U.S. Mail Service)(lrf)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER OLIVER, Case No.: 3:16-cv-3016-LAB-PCL Plaintiff, 12 13 v. 14 ORDER SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) LANAE BECERAA, Defendant. 15 16 17 18 19 20 21 I. Procedural History 22 On December 9, 2016, Christopher Oliver (“Plaintiff”), a former state inmate, filed 23 a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983, along with a Motion to 24 Proceed in forma pauperis (“IFP”). (ECF Nos. 1, 2.) Plaintiff alleged that Defendant, 25 his parole officer, has violated his Fourth Amendment rights by conducting an illegal 26 search and has discriminated against him based on his disabilities. See Compl. at 10-11. 27 Plaintiff sought 1.5 million dollars in compensatory damages and 3 million dollars in 28 punitive damages. (Id. at 7.) 1 3:16-cv-3016-LAB-PCL 1 2 On March 9, 2017, Court granted Plaintiff’s Motion to Proceed IFP but sua sponte 3 dismissed his Complaint for failing to state a claim upon which relief could be granted 4 pursuant to 28 U.S.C. § 1915(e)(2). (ECF No. 3.) Plaintiff was given forty-five (45) 5 days leave to file an amended pleading to correct the deficiencies of pleading identified in 6 the Court’s Order. (Id.) 7 On July 28, 2017, although untimely, the Court accepted Plaintiff’s First Amended 8 Complaint (“FAC”) for filing. (ECF No. 7.) In Plaintiff’s FAC, he claims Defendant 9 Beceraa violated his Fourth and Fourteenth Amendment rights when she allegedly 10 searched his home on March 25, 2016. (Id. at 3.) Plaintiff seeks injunctive relief along 11 with 1.5 million dollars in compensatory damages and 3 million dollars in punitive 12 damages. (Id. at 6.) 13 II. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) 14 A. 15 As the Court stated in the previous Order, a complaint filed by any person 16 proceeding IFP is subject to sua sponte dismissal if it is “frivolous, malicious, fail[s] to 17 state a claim upon which relief may be granted, or seek[s] monetary relief from a 18 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 19 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. 20 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th 21 Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to 22 dismiss an in forma pauperis complaint that fails to state a claim.”). 23 Standard of Review All complaints must contain “a short and plain statement of the claim showing that 24 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 25 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 26 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 27 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 28 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 2 3:16-cv-3016-LAB-PCL 1 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 2 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 3 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 4 “When there are well-pleaded factual allegations, a court should assume their 5 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 6 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 7 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 8 allegations of material fact and must construe those facts in the light most favorable to 9 the plaintiff.”). 10 However, while the court “ha[s] an obligation where the petitioner is pro se, 11 particularly in civil rights cases, to construe the pleadings liberally and to afford the 12 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 13 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 14 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 15 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 16 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a 17 person acting under color of state law committed the conduct at issue, and (2) that the 18 conduct deprived the claimant of some right, privilege, or immunity protected by the 19 Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 20 541 U.S. 637, 124 S. Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 21 (9th Cir. 1985) (en banc). 22 B. 23 Plaintiff alleges that on March 25, 2016, Defendant Beceraa, his parole officer, 24 “came to [his] place to do a house search.” (FAC at 3.) He further claims that he was 25 “asleep at the time” and she “never” gave him notice that she was his parole officer. (Id.) 26 Plaintiff maintains that he was awaken by “three parole officers standing over” him. (Id.) 27 Plaintiff asked how she was able to enter his home and she informed him that she 28 obtained a key from the “front offices.” (Id.) Fourth Amendment claims 3 3:16-cv-3016-LAB-PCL 1 Unlike his original Complaint, Plaintiff attaches no exhibits to his FAC. However, 2 court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05- 3 cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 4 States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner 5 Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of 6 proceedings in other courts, both within and without the federal judicial system, if those 7 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 8 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 9 2002)). 10 Accordingly, the Court will take judicial notice of the exhibits that Plaintiff 11 attached to his original Complaint. Specifically, Plaintiff attached an exhibit to his 12 original Complaint titled “Order Granting Formal Probation” which contains, among 13 other information, the conditions for his probation. See Compl. at 13, Ex. A, “Order 14 Granting Formal Probation.” One of the conditions that Plaintiff was subjected to 15 includes an agreement by Plaintiff to “[s]ubmit person, vehicle, residence, property, 16 personal effects, computers, and recordable media to search at any time with or without a 17 warrant, and with or without reasonable cause, when required by P.O. or law enforcement 18 officer.” (Id. at 14.) 19 The Fourth Amendment governs the reasonableness of government searches and 20 seizures. See U.S. Const., amend. IV (“The right of the people to be secure in their 21 persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 22 be violated . . . but upon probable cause ...”). “Where a particular Amendment ‘provides 23 an explicit textual source of constitutional protection’ against a particular sort of 24 government behavior, ‘that Amendment, [and] not the more generalized notion of 25 ‘substantive due process,’ must be the guide for analyzing these claims.’” Albright v. 26 Oliver, 510 U.S. 266, 273 (1994), quoting Graham v. Connor, 490 U.S. 386, 394 (1989); 27 see also United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). 28 /// 4 3:16-cv-3016-LAB-PCL 1 Here, Plaintiff purports to bring a claim under both the Fourth and Fourteenth 2 Amendments but alleges the same set of facts for both claims. See FAC at 3. However, 3 the Court finds that Plaintiff’s claims arise under the Fourth Amendment only. See 4 Albright, 510 U.S. at 273. 5 As stated above, Plaintiff has submitted an exhibit that indicates he accepted a 6 condition of probation that allows for a suspicionless search of his residence or vehicle. 7 See Pl.’s Ex. A., ECF No. 1 at 14. In Samson v. California, the United States Supreme 8 Court held that a similar condition for a parolee did not violate the Fourth Amendment 9 but the Supreme Court also found that a probationer has a greater right to privacy than a 10 parolee. See Samson v. California, 547 U.S. 843, 850 (2006). The Ninth Circuit 11 addressed the issue of this probation condition in United States v. King, 736 F.3d 805 (9th 12 Cir. 2013) but expressly limited their holding to probationers who had been convicted of 13 a violent felony. Specifically, the Ninth Circuit held that “a suspicionless search, 14 conducted pursuant to a suspicionless-search condition of a violent felon’s probation 15 agreement, does not violate the Fourth Amendment.” Id. at 810. Here, Plaintiff again 16 fails to allege whether he had been convicted of a violent or non-violent crime and thus, 17 at this stage of the proceedings, the Court cannot find that Plaintiff has stated a Fourth 18 Amendment claim. 19 Because the Plaintiff did not heed the instructions in the Court’s previous Order to 20 identify whether he had been convicted of a violent or non-violent crime, the Court again 21 takes judicial notice of the exhibit attached to Plaintiff’s Complaint. In the order granting 22 Plaintiff probation it indicates that he was convicted of California Penal Code 23 § 245(a)(4). See Pl.’s Ex. A., ECF No. 1 at 14. Section 245(a)(4) is a felony and states, 24 in part, that “any person who commits an assault upon the person of another by any 25 means of force likely to produce great bodily injury shall be punished by imprisonment.” 26 Cal. Penal Code § 245(a)(4). Thus, it is unlikely Plaintiff would be able to amend his 27 pleading to allege that he was convicted of a non-violent crime. 28 /// 5 3:16-cv-3016-LAB-PCL 1 III. Conclusion 2 Good cause appearing, the Court: 3 1. DISMISSES Plaintiff’s First Amended Complaint for failing to state a claim 4 upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B). Because 5 the Court finds further amendment futile, leave to amend is DENIED. See Cahill v. 6 Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not 7 an abuse of discretion where further amendment would be futile). 8 9 3. The Court further CERTIFIES that an IFP appeal from this Order of dismissal would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See 10 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 11 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 12 appeal would not be frivolous). 13 The Clerk shall enter judgment and close the file. 14 IT IS SO ORDERED. 15 16 17 18 Dated: August 3, 2017 Hon. Larry Alan Burns United States District Judge 19 20 21 22 23 24 25 26 27 28 6 3:16-cv-3016-LAB-PCL

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