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August 29, 2005.

PATRICK O. FRANKLIN, Sr., CDC #V-09118, Plaintiff,

The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge

Plaintiff, an inmate currently incarcerated at California Correctional Institute ("CCI") in Tehachapi, California, and proceeding pro se, filed this civil rights Complaint pursuant to 42 U.S.C. § 1983 on March 10, 2005. In his Original Complaint, Plaintiff alleged that the San Diego Police Department and one of its officers, K. Lujan, "came to [his] house without a search warrant" and "did an illegal search and seizure" on November 11, 2002, before taking him to jail. (Compl. at 1-2, 6; see also attached "San Diego Regional Arrest/Juvenile Contact Report & Officer's Report Narrative" [hereafter Ex. A] & "My Trial and the Systems" [hereafter Ex. B].) In addition, Plaintiff claimed violations of his rights to "medical care, due process, freedom from association," and "freedom from cruel and unusual punishment," all of which appeared related to the state criminal trial, conviction, sentencing, appellate proceedings and imprisonment which followed his November 2002 arrest. (See Compl. at 3; Ex. B at 1-19.) Plaintiff sought $2 million in general and punitive, as well as $2 million in "other" damages. (Compl. at 7.)

I. Procedural Background

  On May 23, 2005, the Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). (See May 23, 2005 Order [Doc. No. 4] at 9.) In that same Order, however, the Court dismissed Plaintiff's Complaint sua sponte, finding that it failed to state a claim upon which § 1983 relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). (Id. at 9-10.) Specifically, the Court found that the San Diego Police Department ("SDPD") was not a person subject to suit under § 1983, and that to the extent Plaintiff's claims against the SDPD could be liberally construed against the City of San Diego, his Complaint alleged no facts to show that any SDPD custom policy or practice resulted in the violation of his constitutional rights. (Id. at 5, citing Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978).) The Court further found that Plaintiff's unlawful search and arrest claims against SDPD Officer Lujan were barred by Heck v. Humphrey, 512 U.S. 477 (1994), because an award of damages based on those claims would "necessarily imply the invalidity" of his arrest and conviction for being a felon in possession of a firearm, carrying a concealed weapon and exhibiting a firearm in a threatening manner. (Id. at 7-8, citing Heck, 512 U.S. at 486-87; Harvey v. Waldron, 210 F.3d 1008, 1015-16 (9th Cir. 2000).) While the Court found it "unlikely that Plaintiff could allege additional facts against either the City of San Diego or any individual police officer, which might correct the deficiencies of pleading identified in [its] Order," Plaintiff was granted an opportunity to amend. (Id. at 8, citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).)

  On June 16, 2005, Plaintiff filed an Amended Complaint ("FAC") [Doc. No. 5], as well as a duplicate Motion to Proceed IFP, inmate trust account statements and a Declaration in support thereof [Doc. Nos. 6, 8, 9]. Because Plaintiff has already been granted leave to proceed IFP in this case, and is a "prisoner" as defined by 28 U.S.C. § 1915(h), his Amended Complaint must also be screened pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A; however, his duplicate Motion for IFP [Doc. No. 7] is hereby DENIED as moot.

  II. Screening of Amended Complaint per 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

  A. Standard of Review

  The Court has carefully reviewed Plaintiff's Amended Complaint as mandated by 28 U.S.C. §§ 1915(e)(2) and 1915A and, for the reasons set forth below, finds that it is also subject to sua sponte dismissal because: (1) it fails to cure the deficiencies of pleading identified in the Court's March 9, 2004 Order; and (2) it still fails to state a claim upon which § 1983 relief may be granted. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A).

  As this Court noted in its May 23, 2005 Order, the Prison Litigation Reform Act ("PLRA") requires courts to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions, the Court must sua sponte dismiss prisoner and all other IFP complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek monetary relief from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203 F.3d at 1126-27 (§ 1915(e)(2)); Resnick, 213 F.3d at 446 (§ 1915A).

  Before amendment by the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However, 28 U.S.C. §§ 1915(e)(2) and 1915A(b) now mandate that the court reviewing an IFP or prisoner's suit make and rule on its own motion to dismiss before directing that the Complaint be served by the U.S. Marshal pursuant to FED.R.CIV.P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

  "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal construction is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, the court is not required to grant leave to amend if it determines that the pleading "could not possibly be cured by the allegation of other facts," Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)), or if amendment would prove futile. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (where amendment of litigant's complaint would be futile, denial of leave to amend is appropriate).

  B. Failure to State a Claim

  Plaintiff's Amended Complaint alleges no facts which address any of the deficiencies of pleading identified in its May 23, 2005 Order. Specifically, Plaintiff again names the SDPD, rather than the City of San Diego, as a Defendant, and he alleges no facts sufficient to show that Lujan, or any City employee, violated his constitutional rights pursuant to any official custom, policy or practice. See Monell, 436 U.S. at 690-91.

  Instead, Plaintiff's Amended Complaint merely recounts the circumstances surrounding his arrest, but now focuses on Officer Lujan's decision to book him in the San Diego County Jail, rather than to take him to the hospital. Plaintiff claims he was arrested by Lujan after fighting in the street with a person named Jackson, and that he suffered injuries to his neck and back as a result of that altercation. (FAC at 1-2.) Plaintiff claims that Lujan only "took a picture of [his] neck," told him he was taking him to County Jail and that he could receive medical attention there. (Id.). Plaintiff does not explain what, if any, constitutional right he believes Lujan violated by doing so; nor does he seeks any form of relief whatsoever. See FED.R.CIV.P. 8(a) (requiring that each "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . ., (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks."); McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) ("Rule 8(e), requiring each averment of a pleading to be "simple, concise, and direct," applies to good claims as well as bad, and is a basis for dismissal independent of Rule 12(b)(6)."). Moreover, while the court must construe pro se pleadings liberally and afford plaintiff the benefit of any doubt, even pro se plaintiffs must allege, with at least some degree of particularity, overt acts taken by each defendant which support his claims. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).

  Here, Plaintiff claims only that Officer Lujan arrested and booked him in the County Jail, instead of escorting him to a hospital. (SAC at 1-2.) Plaintiff does not allege which constitutional right he believes Lujan violated by doing so. See Karim-Panahi, 839 F.2d at 623. Moreover, to the extent a liberal construction of Plaintiff's claim suggests his intent to reassert a Monell claim against the City of San Diego based on the inadequate emergency medical training of one its employee-officers, Plaintiff still fails to ...

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