UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 19, 2009
ANDREW MONAGHAN, PLAINTIFF,
SHERIFF OFFICER KYLE, ET AL., DEFENDANT.
The opinion of the court was delivered by: David O. Carter United States District Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff, proceeding pro se, paid the filing fee and filed a Complaint on August 4, 2009. The Complaint purports to assert civil rights claims against Officer Stone and Officer "Kyle," who reportedly are or were Los Angeles County Sheriff's Deputies. On August 20, 2009, Defendant Ricky Kyles filed a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Motion"). On August 20, 2009, the Magistrate Judge issued a Minute Order requiring Plaintiff to file a response to the Motion within thirty (30) days of the date of the Order.
On September 4, 2009, Plaintiff filed a document titled "Re-Open Mr. Phil Spectors Case No. XCN BA 255233 knowingly Defendants removed Plaintiff from access to the Jury deliberatly [sic]." This document did not appear to constitute a response to the Motion. On September 23, 2009, the Magistrate Judge issued a Report and Recommendation, recommending dismissal of the action without prejudice for failure to prosecute. On October 7, 2009, Plaintiff filed a "(Response): Re open Phil Spectors case XCN BA 255233, etc.," indicating that Plaintiff intended his September 4, 2009 document to constitute a response to the Motion. On October 8, 2009, the Magistrate Judge issued a Minute Order withdrawing the Report and Recommendation.
Although the Complaint is confusing and partially unintelligible, one aspect of the Complaint is clear. Plaintiff alleges that Defendants prevented Plaintiff from giving testimony in the criminal trial of Phil Spector, which testimony Plaintiff alleges would have demonstrated Spector's supposed innocence of the murder of Lana Clarkson. Plaintiff alleges that he was attending a party at Spector's house on the day of the shooting, that Plaintiff was inside a bathroom at the time the gun discharged, and that the "purple hair girl," not Spector, shot Clarkson (Complaint, pp. 3-6).*fn1 Plaintiff alleges he was unable to attend Spector's first trial due to Plaintiff's incarceration (Complaint, p. 6). Plaintiff alleges that, apparently during Spector's retrial, Defendants assertedly obstructed justice by refusing to allow Plaintiff to testify and by removing Plaintiff from the courtroom (Complaint, pp. 2-4). Plaintiff alleges that Defendant Kyles "not only badgered but pestered, harrassed [sic] and disturbed me and again tossed me out of the entire building at 210 temple street" (Complaint, p. 3). Kyles allegedly ordered Plaintiff out of the court on "3-27-9" (Complaint, p. 6). On "4-1-9" a Superior Court clerk in Courtroom 106 allegedly stated: "Courts [sic] didn't want any disturbance["] (Complaint, p. 6).
Plaintiff alleges that Defendants should be required to serve five years in federal prison and to pay a fine (Complaint, pp. 2-4). Plaintiff also alleges that everyone involved in the alleged conspiracy against Spector "deserves 25 years to life with-out parole" (Complaint, p. 4). Plaintiff requests an order dismissing the criminal proceeding against Spector and releasing Spector from state custody (Complaint, p. 5).
To the extent Plaintiff seeks the invalidation of Phil Spector's conviction, or otherwise seeks to assert Mr. Spector's rights, this court lacks jurisdiction over Plaintiff's claims. "Article III of the Constitution confines the jurisdiction of the federal courts to actual Cases and Controversies, and... the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Clinton v. City of New York, 524 U.S. 417, 429-30 (1998) (citation, internal quotations and footnote omitted). To show standing, Plaintiff must allege, and prove, that he suffered "an injury in fact, -- a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-03 (1998) (citation, footnote and internal quotations omitted). "[T]he 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) (citation and internal quotations omitted). "No plaintiff has standing to complain simply that their Government is violating the law." Cato v. United States, 70 F.3d 1103, 1109 (9th Cir. 1995) (citation and internal quotations omitted). "No litigant in the federal courts may appear as a self designated ombudsman for the rights of others." La Fargue v. Supreme Court of Louisiana, 634 F.2d 315, 315 (5th Cir.), cert. denied, 452 U.S. 939 (1981).
Furthermore, Plaintiff may not seek an order requiring the prosecution, incarceration or punishment of another person. "In our criminal justice system, the Government retains 'broad discretion' as to whom to prosecute." Wayte v. United States, 470 U.S. 598, 607 (1985). "[A] private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another." Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973).
Plaintiff's conclusory allegations that Kyles "badgered" and "harassed" Plaintiff are insufficient to state a claim. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (plaintiff must plead facts that plausibly suggest an entitlement to relief); Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (conclusory allegations are insufficient to state a civil rights claim). To the extent Plaintiff contends Kyles violated Plaintiff's constitutional rights by subjecting Plaintiff to verbal harassment, the Complaint is also insufficient to state a claim. Verbal harassment does not violate the Constitution. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).
CONCLUSION AND ORDER
Defendant's Motion to Dismiss is granted. The Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a First Amended Complaint. The First Amended Complaint shall be complete in itself. It shall not refer in any manner to any prior complaint. Plaintiff may not add Defendants without leave of court. See Fed. R. Civ. P. 21. Failure to file timely a First Amended Complaint may result in the dismissal of this action.
IT IS SO ORDERED.
PRESENTED this 8th day of October, 2009, by
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE