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Joseph A. Sherman v. Yolo County District Attorney Jeff Reisig

December 13, 2010

JOSEPH A. SHERMAN, PLAINTIFF,
v.
YOLO COUNTY DISTRICT ATTORNEY JEFF REISIG, FORMER YOLO COUNTY DISTRICT ATTORNEY DAVE HENDERSON, DEPUTY D.A. ALVINA TZANG, YOLO COUNTY TRANSPORTATION DISTRICT DIRECTOR TERRY BASSETT, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is proceeding without counsel, filed his complaint on November 1, 2010.*fn1 Presently before the court is plaintiff's application to proceed in forma pauperis. For the reasons state below, the undersigned grants plaintiff's application to proceed in forma pauperis, but dismisses his complaint pursuant to 28 U.S.C. § 1915(e)(2). Such dismissal is without prejudice, and plaintiff is granted leave to file an amended complaint as provided herein.

I. Plaintiff's Application to Proceed In Forma Pauperis Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915. (Dkt. No. 2.) Although plaintiff's statements regarding his recent income make the determination of plaintiff's eligibility for in forma pauperis status a relatively close call, plaintiff's application and declaration make the showing required by 28 U.S.C. §§ 1915(a)(1) and 1915(2). Accordingly, the undersigned grants plaintiff's request to proceed in forma pauperis.

The determination that a plaintiff may proceed in forma pauperis does not complete the inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune 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 if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227.

In assessing whether a plaintiff's complaint fails to state a claim on which relief can be granted, the court adheres to the "notice pleading" standards. Under the notice pleading standards of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez, 203 F.3d at 1130-31.

II. Screening of Plaintiff's Complaint

Plaintiff's 18-page, 98-paragraph complaint alleges facts about events that occurred over approximately a ten-year period from 1999 through 2009. Generally, plaintiff's claims, all of which appear to allege violations of 42 U.S.C. § 1983 (Compl. ¶ 4), relate to his myriad arrests and prosecutions in Yolo County, often involving incidents on the county's public transportation system. The vast majority of these claims are duplicative of claims that plaintiff asserted in a prior lawsuit filed against the very same defendants named here. The undersigned will address plaintiff's duplicative claims and non-duplicative claims in turn.

A. Duplicative Claims: Counts IV through XXXII As noted above, plaintiff filed his complaint on November 1, 2010. His complaint alleges 32 "counts" against defendant Jeff Reisig, who is alleged to be the current District Attorney for Yolo County; defendant Dave Henderson, who is alleged to be a former District Attorney for Yolo County; defendant Alvina Tzang, who is alleged to be a Deputy District Attorney for Yolo County; and defendant Terry Bassett, who is alleged to be the director of the Yolo County Transportation District. Plaintiff seeks $63 million in compensatory damages, $21 million in punitive damages, injunctive relief, and costs.

A review of the court's own records*fn2 reveals that on November 1, 2006, plaintiff filed a complaint in this court in the matter of Sherman v. Henderson, et al., No. 2:06-cv-02414 GEB GGH P (E.D. Cal.) ("Sherman I").*fn3 The operative Amended Complaint in Sherman I alleged 27 claims for relief against parties including all of the defendants named in the present action. (Sherman I, Dkt. No. 10.) In Sherman I, plaintiff sought $60 million in compensatory damages, $21 million in punitive damages, injunctive relief, and costs.

The claims numbered IV through XXXII in the present action are virtually identical to the claims alleged in Sherman I and are premised on virtually identical factual allegations. The district court in Sherman I dismissed the claims alleged therein and entered judgment on May 9, 2008 (Sherman I, Dkt. Nos. 29, 30). The Ninth Circuit Court of Appeals affirmed the district court on June 4, 2010, in Sherman v. Henderson, 382 Fed. Appx. 557 (9th Cir. 2010). The United States Supreme Court denied plaintiff's petition for certiorari. Sherman v. Henderson, 131 S. Ct. 465 (2010). Because claims IV through XXXII in this action are duplicative of the claims and allegations in Sherman I, the undersigned dismisses those claims pursuant to the screening authority provided in 28 U.S.C. § 1915(e)(2)(B)(I). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding that a complaint that "merely repeats pending or previously litigated claims" may be dismissed as frivolous under the authority of then-numbered 28 U.S.C. § 1915(d)).

Plaintiff's claims numbered I through III in the present action are not duplicative of those alleged in Sherman I. As discussed below, however, those claims will be dismissed without prejudice, and plaintiff will be given an opportunity to file an amended complaint. Any such amended complaint should not re-plead the duplicative claims, i.e., claims IV through XXXII, which are dismissed by this order.

B. Non-Duplicative Claims: Counts I, II, and III

Plaintiff's claims numbered I through III are arguably not duplicative of the claims asserted in Sherman I and involve events that occurred in the year 2009. Nevertheless, the undersigned will dismiss these claims without prejudice because plaintiff "fails to state a ...


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