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Nicholson v. Bakersfield

January 14, 2009

AMYRA NICHOLSON, PLAINTIFF,
v.
BAKERSFIELD POLICE OFFICER; DOSSEY BADGE # 897 AND DOES 1 THROUGH 10, DEFENDANTS.



The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge

SCREENING ORDER DISMISSING CLAIMS WITH LEAVE TO AMEND

(Doc. 4)

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT OR SIGN FIRST AMENDED COMPLAINT AND FILE MOTION FOR EARLY DISCOVERY WITHIN TWENTY DAYS PROCEDURAL HISTORY

Plaintiff Amyra Nicholson ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed her "Complaint for Lawsuit Civil Rights Violations" in this matter on August 11, 2008. (Doc. 1.) Her claim for relief under 42 U.S.C. §1983 alleged violations of Plaintiff's civil rights under the Fourth Amendment occurring as the result of a law enforcement search at her home on June 29, 2008. Plaintiff named as defendants "Bakersfield Police Officer; Dossey Badge # 897 and Does 1 through 10." (Ibid.) On August 22, 2008, the Court dismissed that complaint, without prejudice, because of pleading deficiencies identified in the initial screening process. The Court granted Plaintiff thirty (30) days to file an amended complaint curing the pleading deficiencies. (Doc. 3.) On September 29, 2008, Plaintiff filed a "First Amended Complaint Civil Rights Violations." (Doc. 4.) She names the same defendants in her first amended complaint as she did in her initial complaint. (Docs. 1, 4.)

DISCUSSION

A. Screening

Title 28 U.S.C. §1915(e) requires the Court to review a complaint filed in forma pauperis for its sufficiency before the complaint may be served. Specifically, the statute mandates dismissal of a complaint that "is frivolous or malicious," "fails to states a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief."

28 U.S.C. §1915(e)(2)(B)(I), (ii), and (iii).

B. Standard of Review

In determining the sufficiency of the first amended complaint, the Court must accept all factual allegations as true and draw all reasonable inferences in Plaintiff's favor. Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). All doubts must be resolved in Plaintiff's favor and the complaint must be construed in the light most favorable to the Plaintiff. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976); Jenkins v. McKeithen,395 U.S. 411, 421, 89 S.Ct. 1843 (1969). The allegations of a pro se complaint are held to less stringent standards than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594 (1972). "Pro se complaints are to be liberally construed and may be dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (internal quotation marks and citations omitted).

All complaints, whether pro se or prepared by lawyers, are governed by the notice pleading standard set forth in the Federal Rules of Civil Procedure. Every complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint's main purpose "is to provide notice to the defendant of what plaintiff's claim is and the grounds upon which the claim rests.... [I]t is not necessary that plaintiff state sufficient facts to constitute a cause of action [but] plaintiff... must set forth enough details so as to provide defendant and the court with a fair idea of the basis of the complaint and the legal grounds claimed for recovery." Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir. 1990) (internal citations omitted). In deciding issues of a pleading's sufficiency, Fed.R.Civ.P. 8(e) instructs that "[p]leadings must be construed so as to do justice."

In Gilligan v. Jamco Development Corp., 108 F.3d 246 (9th Cir. 1997), the Ninth Circuit said:

The Rule 8 standard contains a powerful presumption against rejecting pleadings for failure to state a claim.... The Supreme Court has explained that "it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L.Ed.2d 90, 94, 94

S.Ct. 1683 (1974). In reviewing the sufficiency of a complaint, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Id." (Internal quotations and some citations omitted.) Gilligan, 108 F.3d at p. 249. "Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. " Weilburg, 488 F.3d at 1205 (internal quotation marks and citation omitted).

While a pleading may be otherwise sufficient, it must still be signed. "Every pleading, written motion, and other paper must be signed... by a party personally if the party is unrepresented.... The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention." Fed.R.Civ. P. 11(a).

C. Title 42 U.S.C. §1983 Complaints Alleging Fourth Amendment Violations

Plaintiff's complaint seeks damages under 42 U.S.C. §1983 for violation of her Fourth Amendment right to be free from unreasonable searches and seizures. "The Fourth Amendment protects against invasion of the right of privacy.... [¶] It represents recognition and embodiment in our fundamental framework of the precept that a man's property and person are inviolable to search except upon due cause [internal quotations and citation omitted]." Huguez v. United States, 406 F.2d 366, 374-375 (9th Cir. 1968). Its purpose "is to protect personal privacy and dignity against unwarranted intrusion by the state, meaning that every search must be examined in the light of the Amendment's requirement that it not be'unreasonable.' " Id. And while the government may have sufficient justification for conducting a search, the government's actions in executing that search may still be improper if unreasonable:

Finding the existence of sufficient cause [to initiate the search]... does not end our inquiry under the fourth amendment.... [I]n determining whether a search comports with the requirements of the fourth amendment, the scope of the particular intrusion, the manner of its conduct, and the justification for initiating it must all be considered [internal quotes and citation omitted]. Thus a clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it.

Indeed, the fourth amendment imposes a stricter standard on the "means and procedures" of a body search than does the due process clause [citations omitted].

Any body search, if it is to comport with the reasonableness standard of the fourth amendment, must be conducted with regard for the subject's privacy and be designed to minimize emotional and physical trauma. United States v. Cameron, 538 F.2d 254, 257-258 (9th Cir.1976).

To plead any constitutional violation under Section 1983, a plaintiff must allege facts from which it may be inferred that (1) plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that right acted under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). "A person deprives another'of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivations of which [the plaintiff complains].' " Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). "In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must ...


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