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Hicks v. State of California Dep't of Ins. Investigations

January 5, 2009

ROBERT C. HICKS, PLAINTIFF,
v.
STATE OF CALIFORNIA DEPT. OF INS. INVESTIGATIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer T. Lum United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

On November 14, 2008, Robert C. Hicks ("plaintiff"), proceeding pro se and in forma pauperis, filed a "First Amended Opening Complaint" pursuant to 42 U.S.C. Section 1983 ("First Amended Complaint"). Plaintiff's claims arise from his November 23, 2005 arrest and subsequent unsuccessful prosecution for multiply felony counts, including kidnaping. Plaintiff names the following defendants in his First Amended Complaint: Los Angeles County Metropolitan Transit Authority ("MTA"); Sheila Cowan ("Cowan"); Roy Romero ("Romero"); the State of California Department of Insurance ("Department of Insurance"); Larry Pagenkopp ("Pagenkopp"); Robert Sierra ("Sierra"); Silvia Aubrey ("Aubrey"); the Los Angeles County District Attorney's Office ("District Attorney's Office"); Ephriam Turner ("Turner"); and Theodore Loewen ("Loewen").

The Court has screened the First Amended Complaint before ordering service to determine whether the action (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).

The Court's screening of plaintiff's First Amended Complaint under the foregoing statute is governed by the following standards: A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Because plaintiff is appearing pro se, the Court must construe the allegations of the First Amended Complaint liberally and must afford plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Moreover, in determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

After careful review and consideration of the First Amended Complaint under the relevant standards, and for the reasons discussed below, the Court finds that plaintiff has failed to state a claim upon which relief may be granted and ORDERS the FIRST AMENDED COMPLAINT DISMISSED WITH LEAVE TO AMEND.

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

On November 23, 2005, plaintiff was arrested and charged with multiple felony counts, including kidnaping. The case against plaintiff was based on a physical altercation that occurred on November 7, 2002, while plaintiff, who, at the time was employed by the MTA as a bus driver, was driving an MTA bus and was attacked by Umeka Joyce Frazier, a female passenger. (First Amended Complaint at 7). Plaintiff sustained injuries from the attack.

Treatment for the injuries was, initially, paid by the MTA's workers compensation benefits program. (First Amended Complaint at 7). Plaintiff was later denied treatment and damages after defendant Cowan, a Senior Claims Examiner, determined that video footage of the November 7, 2002 altercation evinced plaintiff acted improperly and was, therefore, not entitled to benefits. (Id.). Thereafter, plaintiff received a favorable judgment from the Workers Compensation Appeals Board and the Los Angeles Superior Court establishing that plaintiff was not the initial aggressor in the November 7, 2002 altercation with Ms. Frazier. (Id. at 7-8).

Sometime thereafter, plaintiff alleges that defendants conspired to have plaintiff incarcerated to prevent him from prevailing in a related unlawful termination case against defendant MTA. (Id. at 8). Plaintiff alleges that defendants pursued a lawsuit against him without probable case, and did so in retaliation for plaintiff's inadvertent exposure of the MTA's illegal employment practices with regard to sick leave and overtime pay. (Id. at 8-9). As a result of this conspiracy, plaintiff was arrested on November 23, 2005. All charges against plaintiff were dismissed on April 24, 2007.

In addition to the claim for conspiracy, plaintiff brings a claim for abuse of process against all defendants alleging that they knew the criminal charges against plaintiff were baseless. (Id. at 10-12). Plaintiff alleges defendant Cowan "willfully lied" that plaintiff was guilty of workers compensation fraud; defendant Romero perjured himself while testifying that the surveillance video of the November 7, 2002 altercation between plaintiff and Ms. Frazier was not tampered with; defendant Turner knew there was no probable cause for plaintiff's arrest and, nevertheless, applied for and obtained a warrant for plaintiff's arrest; defendant Loewen hid evidence that the surveillance video had been tampered with; and all defendants improperly used criminal court proceedings as a method of defeating plaintiff's pending termination case against the MTA and intimidated plaintiff for the 17 months that the criminal charges were pending against him. (Id. at 11-12).

Plaintiff brings a claim for malicious prosecution against defendants MTA, Cowan and Romero, alleging that they had knowledge of the two rulings establishing that plaintiff was not the initial aggressor in the November 7, 2002 altercation with Ms. Frazier before they filed a criminal case against plaintiff, and that they were aware that there was no probable cause for the criminal charges. (First Amended Complaint at 9-10). Plaintiff also brings a claim for intentional infliction of emotional distress against all defendants. (Id. at 12).

DISCUSSION

I. PLAINTIFF'S CLAIMS AGAINST THE MTA, DEPARTMENT OF INSURANCE AND THE DISTRICT ATTORNEY'S OFFICE MUST BE DISMISSED

"Municipalities and other local government units... [are] among those persons to whom § 1983 applies." Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978). A local government entity such as the MTA, Department of Insurance or the District Attorney's Office, however, "may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694. Thus, the MTA, Department of Insurance, and the District Attorney's Office may not be held liable for the acts of their employees unless "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by that body's officers," or unless the alleged ...


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