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Kidd v. Los Angeles Police Dep't


May 24, 2010


The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge



On February 1, 2010, plaintiff Angellee Kidd ("Plaintiff"), proceeding pro se, filed a civil rights complaint ("Complaint") pursuant to 42 U.S.C. § 1983. (Compl. at 1.) Plaintiff also filed a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which the Court granted on February 1, 2010. The only defendant named in the Complaint, the Los Angeles Police Department ("LAPD"), filed an answer on March 10, 2010. For the reasons stated below, the Complaint is dismissed with leave to file an amended complaint, if any, within thirty (30) days, that is, on or before June 24, 2010. The LAPD shall file an answer to the amended complaint, if any, within thirty (30) days thereafter.


On May 2, 2008, at around 6 p.m., the LAPD executed a search warrant at a Los Angeles area apartment "being rented by Venita Huey" (the "Apartment"). (Compl. at 1.) The LAPD obtained the "search warrant ... in response to drug related activity that had previously taken place at the" Apartment. (Id.) Upon entering the Apartment, the LAPD found Plaintiff asleep in a "rear bedroom," and "[s]everal occupants were removed from the [Apartment.]" (Id.)

The LAPD's officers "asked [Plaintiff] to go with them outside ... for further questioning and [Plaintiff] complied." (Compl. at 1.) Plaintiff advised the officers her name and current address, and also informed them "that she had a criminal history ...[,] [although] she was not ... on ... probation or parole at [the] time." (Id. at 1-2.) "One of [t]he officers ... requested [Plaintiff's] car keys[,]" and after Plaintiff "complied with the ... request[,]" "they collectively began to search [Plaintiff's] vehicle for evidence." (Id. at 2.) The officers found money in the glove compartment of Plaintiff's car, "which was confiscated and held by the [LAPD] as evidence in [its] investigation." (Id.) Plaintiff told the officers that the confiscated money consisted of her "Social Security benefits and SSI[,]" which she had received from her "appointed payee representative" the day before. (Id.) Nevertheless, the officers placed Plaintiff under arrest for the violation of California Health and Safety Code § 11352 ("Transportation, sale, giving away, etc., of designated controlled substances"). (Id.)

Plaintiff was transported to the LAPD's "77th Division Detention Facility w[h]ere she was held on $30,000 bail." (Compl. at 2.) Plaintiff made bail the next day and was instructed to appear in court on May 29, 2008. (Id.) When she did, the "court clerk" informed Plaintiff "that the Los Angeles County District Attorney's Office had rejected filing on the case." (Id.) Plaintiff then "went to the [LAPD's] Southwest Division station to ... [ask] about the return of her personal property[,]" but was told "that she would not be able to obtain her personal property without a court order." (Id. at 2-3.)

Based upon these factual allegations, Plaintiff contends that the LAPD "had no legal reason or just cause to arrest and detain [Plaintiff,]" and "no legal right to charge [Plaintiff] with a crime." (Compl. at 3.) Plaintiff further contends that the "deprivation of [her] property ... occurred as a direct result of an ... affirmatively established or de fact[o] policy, or custom which the state had the power to control." (Id. at 3.) Notably, Plaintiff does not identify any particular officer of the LAPD who allegedly violated her constitutional rights. (See generally Compl. at 1-3.) Plaintiff seeks $800,000 in monetary damages. (Id. at 3.)


Dismissal for failure to state a claim "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988, as amended Feb. 27, 1990 and May 11, 1990).

Under Federal Rule of Civil Procedure 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). While Rule 8 does not require "detailed factual allegations," a complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Id. (internal citation omitted).Thus, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads [enough] factual content [to] allow[] [a] court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

To state a claim under 42 U.S.C. § 1983, Plaintiff must allege that:

(1) the conduct she complains of was committed by a person acting under color of state law; and (2) that the conduct violated a right secured by the Constitution or laws of the United States. Humphries v. County of Los Angeles, 554 F.3d 1170, 1184 (9th Cir. 2009, as amended Jan. 15, 2009 and Jan. 30, 2009), cert. granted in part, 130 S.Ct. 1501 (2010) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).


Plaintiff seeks to impose § 1983 liability on the LAPD, a municipality defendant. However, a local government entity "may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Dep't of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978) (emphasis added).*fn1 Thus, a plaintiff must establish that "the action that is alleged to be unconstitutional implements or executes a policy ..., ordinance, regulation, or decision officially adopted and promulgated by" the municipality, or that the action was "visited pursuant to a governmental 'custom[.]'" Id. at 690-691. In other words, a plaintiff must show that "deliberate action[,] attributable to the municipality itself[,] is the 'moving force' behind the plaintiff's deprivation of federal rights." Bd. of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 400 (1997) (internal citation omitted).

Here, as best the Court can reasonably decipher, Plaintiff alleges two bases for her § 1983 claim: (i) an unlawful arrest; and (ii) an unlawful deprivation of property. (Compl. at 3.) However, the Complaint appears deficient in both respects.

As to the former, Plaintiff cites no LAPD policy, ordinance, or custom that caused any violation of Plaintiff's constitutional rights. Indeed, with respect to Plaintiff's unlawful arrest claim, Plaintiff fails to identify any policy, ordinance, or custom that caused the purportedly unlawful arrest. Moreover, assuming Plaintiff's factual allegations to be true and drawing all reasonable inferences in her favor, Plaintiff's allegations of a false arrest remain wanting. At this juncture, Plaintiff's own allegations establish that she was found at the epicenter of drug-related activity (along with several others), she had a past history of criminal activity and, following a voluntary consent to search her vehicle, a sum of money was located in her car. Although the prosecuting agency may have ultimately concluded not to prosecute her for a variety of reasons, the probable cause to arrest in the first instance is not automatically extinguished after the fact. Probable cause to arrest exists when the "facts and circumstances within the officers' knowledge are sufficient to warrant a prudent person, or one of reasonable caution, to believe, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005) (citing United States v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992)).

As to the latter, Plaintiff claims that her alleged "deprivation of property ... occurred as a direct result of an affirmatively established or de fact[o] policy, or custom which the state had the power to control. [Plaintiff] did not have access to an adequate state post deprivation remedy." (Compl. at 3 (emphasis added).) The inadequacy of these allegations is self-evident. Insofar as Plaintiff is suing a municipal entity, she must identify a municipal, and not state, policy that violated her constitutional rights. See Monell, 436 U.S. at 690-691. Here, the only policy Plaintiff identifies is a policy of the Los Angeles City Clerk's office, not the LAPD's policy:

[Plaintiff] obtained claim forms [from] the Los Angeles City Clerk's office. However, the claim form indicated a filing window of six months, a limited financial claim amount, and the statu[t]e of limitations on the claim form was outside of the scope of the case filing window for the state of California. The Los Angeles City Clerk's form did not have an area/section for addressing constitutional violation[s] of law.

(Compl. at 3.) The Court finds that these allegations are also insufficient to state a Monell claim against the LAPD that is plausible on its face. The allegations fail to identify any policy, ordinance, or custom of the LAPD, the only defendant in this action, that violated Plaintiff's constitutional rights. See Monell, 436 U.S. at 690-691.

Accordingly, the Court finds that Plaintiff's entire Complaint must be dismissed sua sponte for failing to state a claim upon which relief could be granted. See 28 U.S.C. § 1915(e)(2)(B); see also Monell, 436 U.S. at 690-691, 694.


The Court must construe "pro se pleadings ... liberally ..., particularly where civil rights claims are involved." Balistreri, 901 F.2d at 699. But "a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of Univ. of Ala., 673 F.2d 266, 268 (9th Cir. 1982). Accordingly, pro se litigants must be given leave to amend unless it is absolutely clear that the deficiencies in a complaint cannot be cured. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam). As the Court is unable to determine whether amendment to the Complaint would be futile, leave to amend is granted in an abundance of caution.

By June 24, 2010, Plaintiff may submit a First Amended Complaint to cure the deficiencies discussed above. If Plaintiff chooses to file a First Amended Complaint, it must comply with Federal Rule of Civil Procedure 8, and contain short, plain statements explaining: (1) the constitutional right Plaintiff believes was violated; (2) the name of the defendant who violated that right; (3) exactly what that defendant did or failed to do; (4) how the action or inaction of that defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that defendant's conduct. See 42 U.S.C. § 1983; Fed. R. Civ. P. 8; see also Humphries, 554 F.3d at 1184; Rizzo v. Goode, 423 U.S. 362, 371-72 (1976).

If Plaintiff fails to affirmatively link the conduct of the defendant with the specific injury suffered by Plaintiff, the allegation against that defendant will be dismissed for failure to state a claim. Conclusory allegations that a defendant has violated a constitutional right are not acceptable and will be dismissed.

Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint," and it must be retyped in its entirety on the court-approved form. The First Amended Complaint may not incorporate any part of the original Complaint by reference.

Any amended complaint supercedes the original Complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992). After amendment, the Court will treat the original Complaint as nonexistent. Id. Any claim that was raised in the original Complaint is waived if it is not raised again in the First Amended Complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).


1. Plaintiff's Complaint, filed on February 1, 2010, is DISMISSED with leave to amend, pursuant to 28 U.S.C. § 1915(e)(2), for failure to state a claim on which relief may be granted.

2. Plaintiff is given leave to amend and is GRANTED up to and including June 24, 2010, to file a First Amended Complaint curing the deficiencies discussed above. Plaintiff is NOTIFIED that the First Amended Complaint may not add new claims or new defendants that were not involved in the conduct, transactions, or occurrences set forth in the original Complaint. Fed. R. Civ. P. 15(c). The First Amended Complaint shall be retyped so that it is complete in itself without reference to the original Complaint. After amendment, the Court will treat the original Complaint as nonexistent.

3. If Plaintiff fails to file a First Amended Complaint by June 24, 2010 and/or such First Amended Complaint fails to comply with the requirements set forth in this Memorandum and Order, the Court may recommend that this action be dismissed with prejudice.

4. The LAPD shall file an answer to the amended complaint, if any, within thirty (30) days thereafter.


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