The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND
Plaintiff is proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. On November 18, 2009, plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2). On November 19, 2009, the Court granted plaintiff's request to proceed in forma pauperis. (Doc. 3).
On January 19, 2010, the Court ordered the complaint dismissed with leave to amend. The order of dismissal was based upon the vagueness of the complaint which made it impossible to determine whether the underlying criminal proceedings terminated in his favor and because it appeared to the Court that Plaintiff may have been attempting to state a class action claim, although the ambiguity of the complaint made this unclear. (Doc. 5). Also, although Plaintiff alleged that the officers acted in their official capacities, he failed to state any facts that would give rise to municipal liability.
2. Dismissal of the First Amended Complaint
The Court dismissed the First Amended Complaint with leave to amend. The Court determined that the amended complaint was vague with respect to allegations against Defendant Police Officers King and Drewry and noted numerous deficiencies in its order. For example, the Court noted inconsistencies in his statement of facts where Plaintiff asserted at one point that his companion at the time of his arrest, Kenneth Lee Charles, was a gang member, then a few sentences later, seemed to deny that Charles was a gang member. (Doc. 9 at 5).
In addition, the Court found that Plaintiff failed to allege facts to support an inference that the arresting officers were aware of his parole status at the time of his arrest or that this status played any role in his arrest. (Doc. 9 at 5). In particular, the Court determined that the amended complaint was vague in that it could not be determined from the allegations made in it whether Plaintiff was arrested for associating with a gang member in violation of his parole condition or whether he was arrested because of his admittedly erratic behavior in connection with being under the influence of marijuana. (Id.) On this latter point, Plaintiff stated that he "shouted and gestured" at the defendant officers when they drove by him "as if he was going to jump into the oncoming north bound lanes" and further admitted he was under the influence of marijuana at the time of his arrest, and that the officers believed he was under the influence of marijuana, noting he displayed symptoms of "blood shot/watery eyes, slow thick speech, and a strong odor of marijuana on his person." (Doc. 9 at 7; First Amended Complaint at 2).
The Court further noted that Plaintiff failed to explain whether his arrest on January 16, 2009, led to a criminal prosecution or parole revocation action, and whether he was either convicted of a crime flowing from his arrest or had his parole revoked. Thus, the Court was unable to determine whether Plaintiff's current action was a collateral attack on a state law conviction prohibited by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (Id.) In addition, the Court noted that Plaintiff appeared to attack the legality of the condition of parole which prohibited him from associating with a known gang member but had failed to identify a particular amendment of the U.S. Constitution that he believes prevents such a condition of parole or allege facts to support this contention. (Id. at 6). Conversely, if he was seeking a Federal Court review of a state court order imposing a "gang-association" parole condition, the Court noted it would have no jurisdiction pursuant to the Rooker-Feldman doctrine. (Id.)
With respect to Defendant Bakersfield Police Department, the Court noted that while Plaintiff appeared to allege that the police department maintained an unlawful custom or policy of arresting parolees who associate with known gang members in violation of parole terms, he "failed to allege sufficient facts to demonstrate that it was this custom or policy that caused his alleged unlawful arrest." (Doc. 9 at 7).
Nevertheless, the Court granted Plaintiff leave to file a Second Amended Complaint to correct these numerous deficiencies. (Doc. 9 at 8). On April 7, 2010, Plaintiff filed a Second Amended Complaint. (Doc. 12).
3. Second Amended Complaint
The Court must review the complaint 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); 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 ...