The opinion of the court was delivered by: Gary S. United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF PLAINTIFF'S AMENDED COMPLAINT WITHOUT LEAVE TO AMEND
Plaintiff Steven Mihalovic ("Plaintiff" or "Mihalovic"), appearing pro se and proceeding in forma pauperis, filed a first amended complaint ("FAC") on December 6, 2010, alleging damages for personal injuries against Los Banos Police Officer Matthew Weiss ("Defendant" or "Weiss") after he was unlawfully arrested and held "'against his will'" for eight months in the Merced County Jail. (Doc. 12 at 4*fn1 .) Plaintiff seeks compensatory and punitive damages, costs and fees, and other relief this Court may deem appropriate. (Doc. 12 at 4.)
Pursuant to Title 28 of the United States Code section 1915(e)(2), the Court must conduct an initial review of the complaint for sufficiency to state a claim. The Court must dismiss a complaint or portion thereof if the Court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 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.
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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While legal conclusions can provide a framework of a complaint, they must be supported by factual allegations. Iqbal, 129 S.Ct. at 1950. While factual allegations are accepted as true, legal conclusion are not. Iqbal at 1949.
In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. V. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
A pleading may not simply allege a wrong has been committed and demand relief. The underlying requirement is that a pleading give "fair notice" of the claim being asserted and the "grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47-48 (1957); Yamaguchi v. United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997).
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Thus, to state a claim under Title 42 of the United States Code section 1983,*fn2 a plaintiff must allege that (1) the defendant acted under color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Moreover, section 1983 requires that there be an actual connection or link between the actions of defendant and the deprivation allegedly suffered. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit Court of Appeals has held that "a person 'subjects' another to deprivation of 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 complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
C. Plaintiff's Allegations
Plaintiff complains he was held in the Merced County Jail - between August 8, 2008, and April 2009 when he was released on his own recognizance - as a result of his unlawful arrest by Defendant. Plaintiff claims the case relating to this arrest was eventually dismissed for insufficient evidence. (Doc. 12 at 5.)
Mihalovic alleges his Fifth Amendment rights were violated because he was denied due process during the eight months he was incarcerated in jail before being released on his own recognizance. (Doc. 12 at 4-5.)
The Fifth Amendment of the United States Constitution provides, in pertinent part:
No person shall be held to answer for a . . . crime, unless on a presentment or indictment of a Grand Jury . . . nor shall any person . . . be deprived of life, liberty, or property, without due process of law . . ..
However, "the Fifth Amendment's due process clause applies only to the federal government." Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). Therefore, Mihalovic's claim on this basis, as ...