The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO ORDER DISMISSING COMPLAINT
On November 24, 2009, Plaintiff Kenyata Hutchinson ("Plaintiff"), a state prisoner proceeding pro se, filed a civil rights complaint according to 42 U.S.C. § 1983, against Bakersfield Police Department Officers Patrick Mara, Joshua Finney and James Jones. On December 2, 2009, the Court granted plaintiff's request to proceed in forma pauperis. (Doc 5)
Because Plaintiff has been granted leave to proceed IFP, this Court must "screen" his complaint under 28 U.S.C. § 1915(e)(2)(B), and dismiss the action if it is frivolous or malicious, fails to state 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); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984)). 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. Lopez v. Smith, 203 F.3d 1122, 1127-1128 (9th Cir. 2000) (en banc).
1. Section 1983 Complaint
Plaintiff's complaint seeks damages under 42 U.S.C. § 1983, which provides in pertinent part that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . .
To plead a § 1983 violation, the 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 (1988); Collins v. Womancare, 878 F. 2d 1145, 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the defendants' acts or omissions caused the deprivation of the plaintiff's constitutionally protected rights. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). "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 deprivation of which [the plaintiff complains]." Id. There must be an actual causal connection or link between the actions of each defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658, 691-692 (1978) (citing Rizzo v. Goode, 432 U.S. 362, 370-371 (1976)).
A. Summary of the Allegations
Plaintiff alleges that on November 24, 2007, he was visiting a relative's house when a van arrived. The van was filled with, as it turns out, members of the Special Enforcement Unit of the Bakersfield Police Department who were assigned to gang enforcement. Plaintiff asserts that he did not realize that the occupants of the van were police officers and thought that they may be gang members. Fearing that violence would soon erupt, Plaintiff ran.
Plaintiff was stopped by police officers and arrested. Plaintiff alleges that he was "falsely arrested" for violations of California Health & Safety Code section "113515.5"*fn1 , Penal Code section 186.22 and Penal Code section 148. In essence, Plaintiff was arrested for being in possession of narcotics, for being a member of a street gang and for resisting arrest.
In his complaint, Plaintiff seems to assert that his arrest was improper because the probable cause declaration supporting his arrest was written in two different handwritings and because the officers who testified at his trial, denied that the handwriting belonged to them. Likewise, he asserts that Officer Mara falsified the probable cause declaration in some other manner. Moreover, Plaintiff asserts that Officer James improperly relied upon a citizen informant who advised the officer that drugs were being sold where Plaintiff's arrest occurred. Finally, Plaintiff asserts also that the officers acted improperly in using an unmarked police vehicle and dressed in "unusual police gear" which allowed them to enter the area the location without prior notice to those located there.
Plaintiff admits that he was convicted of the crimes noted above and was sentenced to prison as a result. Review of the docket of the Kern County Superior Court in case number BF121526B entitled People v. Kenyata Hutchinson, reveals that on August 27, 2009, Plaintiff was convicted of the violations described above and was sentenced to 13 years in prison, with two years suspended or stayed and credit for 99 days already served..*fn2 Moreover, Plaintiff ...