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Sholtis v. City of Fresno Police Dep't

March 17, 2009

BETH SHOLTIS, PLAINTIFF,
v.
CITY OF FRESNO POLICE DEPARTMENT, OFFICER MCCLELLAND, AND OFFICER GOMEZ, DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

Plaintiff Beth Sholtis ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint on March 2, 2009. Plaintiff alleges that officers of the Fresno Police Department transported her to the hospital, rather than to jail, when she was found inside another's home on February 28, 2006, but did not allow her to take her belongings with her. Upon her release from the hospital, Plaintiff called the police department, but claims they refused to help her retrieve her property. A subsequent call to a sergeant and officers in the property department also failed to result in the return of her property. Plaintiff seeks monetary relief in the total sum of $75,000.00. Upon a review of the complaint, this court recommends that the action be dismissed with leave to amend.

II. DISCUSSION

A. Screening Standard

In cases where plaintiff is proceeding in forma pauperis, the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976)), construe the pro se pleadings liberally in the light most favorable to the plaintiff (Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)), and resolve all doubts in the plaintiff's favor (Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)).

Federal Rules of Civil Procedure, rule 8(a) provides: A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds for jurisdiction to support it, (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. Relief in the alternative or of several different types may be demanded.

As stated above, a complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which the Defendants engaged in that support Plaintiff's claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998).

B. Plaintiff's Allegations

Plaintiff claims that on February 28, 2006, she was homeless. Believing she had been invited inside the home by its owner, she proceeded to bathe inside a residence located at 3107 Vagedes Avenue in Fresno. The home was empty but for a couch and Plaintiff's belongings that she had stored in the living room while bathing. Plaintiff indicates that her belongings included a backpack, clothing, jewelry (including her grandmother's diamond Tiffany solitaire wedding ring), "artwork worth thousands," poetry and other written or published works.

While Plaintiff was in the bathtub, officers with the Fresno Police Department arrived. They ordered her out of the tub, handcuffed her, then instructed her to get dressed. In response to request for identification, Plaintiff provided her checkbook and Medi-Cal card. Apparently unwanted or uninvited, the officers asked Plaintiff whether she wished to go to jail or the hospital. She was afraid, and elected to go to the hospital.

Approximately two weeks later, after being released from the hospital, Plaintiff called the Fresno Police Department about her belongings. She claims the department refused to help her get her property back. She called the Fresno Police Department again in the summer of 2006 from Ohio. She spoke with a sergeant and officers in the property department, but apparently was informed that there is no record of her belongings or property being in the care of the Fresno Police Department. Further, Plaintiff claims the Fresno Police Department refused to provide her with a copy of the police report from the ...


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