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Tayag v. Officer Hardy SHC 336


June 4, 2009


The opinion of the court was delivered by: David O. Carter United States District Judge


Edwin Tayag ("Plaintiff") is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Plaintiff's complaint does not make the showing required by 28 U.S.C. § 1915A. Accordingly, Plaintiff's request for relief under 28 U.S.C. § 1915A is dismissed with leave to amend.

Plaintiff has also submitted a declaration that does not meet the showing required by 28 U.S.C. § 1915(a). Accordingly, his request to proceed in forma pauperis is denied.


Under 28 U.S.C. § 1915A, this Court must "review, before docketing... or ... as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court [must] identify cognizable claims or dismiss... any portion of the complaint, if the complaint -- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b). This Court must therefore determine whether the Complaint states a cognizable claim for relief with respect to each named defendant.

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a 'short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp v. Twombly, 127 S.Ct. 1955, 1964 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive a dismissal for failure to state a claim, a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1965. In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. §1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of 1983, if he does an affirmatives act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Finally, vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).


A. Plaintiff Does Not State a Cognizable Claim for Relief

Plaintiff is currently incarcerated at North Kern State Prison in Delano, California. His complaint arises from an incident that occurred at Solano County Jail in Fairfield, California. The entirety of the facts alleged in Plaintiff's complaint are as follows:

On forth [sic] date May 6, 2008, I was arrested and placed into custody at Solano County Jail while Officer Hardy SHC 336 performed a full body strip search on my personal [sic], before I was brought to the court for arraignment on May 8, 2008. (Complaint, p. 5)

Plaintiff's complaint does not state a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). Plaintiff does not allege what the violation was or for what cause of action he is seeking relief. Additionally, it is entirely unclear whether a constitutional violation even occurred.

B. Plaintiff May Not Proceed In Forma Pauperis

"A district court may deny leave to proceed [in forma pauperis] at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.1987). An in forma pauperis complaint is frivolous if it has "no arguable basis in fact or law." Franklin v. Murphy, 745 F.2d at1228 (9th Cir.1984).

Plaintiff alleges that Officer Hardy SHC 336 (the "Defendant") performed a strip search on him before his arraignment at Solano County Jail. Plaintiff does not assert a violation of constitutional rights and does not allege what injury he suffered as a result of the strip search. Accordingly, because Plaintiff's complaint is frivolous on its face, Plaintiff may not proceed in forma pauperis.


In accordance with the above, IT IS HEREBY ORDERED that ; (1) Plaintiff's complaint is DISMISSED with leave to amend under 28 U.S.C. § 1915A; (2) Plaintiff's request for leave to proceed in forma pauperis is DENIED. Plaintiff has 30 days to amend his complaint and reapply for leave to proceed in forma pauperis.


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