The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff is proceeding in this action pro se and in forma pauperis. This proceeding was referred to this court by E.D. Cal. L.R. 302(c)(21). On August 5, 2011, plaintiff filed a second amended complaint ("SAC") against the City of Elk Grove and various City of Elk Grove police officers. (Dkt. No. 20.)
The federal in forma pauperis statute authorizes federal courts to dismiss a case if 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). 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 where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
To avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions," or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[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). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The court twice previously cautioned plaintiff that the allegations in her complaint were so vague and conclusory that it was unable to determine whether the current action is frivolous or fails to state a claim for relief. The court also noted that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Instead of making a good faith attempt to cure the deficiencies outlined in the court's previous orders, plaintiff essentially re-filed, with minimal changes, the previously dismissed first amended complaint as her second amended complaint.*fn1 Plaintiff is cautioned that any further failure to follow this court's orders will result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110.
Reviewing the SAC in the most favorable light, plaintiff alleges that defendant McDaniel, a City of Elk Grove police officer, stopped plaintiff's vehicle without probable cause and approached plaintiff in a hostile and aggressive manner. During the course of the traffic stop, McDaniel allegedly pulled out the window of plaintiff's vehicle with his hands, interrupted plaintiff's 911 call, pulled plaintiff out of her vehicle, and later forcefully yanked plaintiff to the ground by her hair causing plaintiff to hit the ground face first. Plaintiff's car was searched and towed, and plaintiff was arrested. Although McDaniel is alleged to be the primary actor, plaintiff contends that two other officers, defendants Morrow and Benitez, later arrived at the scene and were also involved in her detention and arrest. Jeff Murray, the "Sergeant of Beat 2" and supervisor of officers McDaniel, Morrow, and Benitez, was also allegedly on the scene and had some interaction with plaintiff in the course of her arrest. According to plaintiff, McDaniel filed false charges against her and made various false statements in his report related to the incident, which were corroborated by Morrow, Benitez, and Murray. The charges were later dismissed.
For the limited purposes of screening, the SAC states colorable claims for relief against defendants McDaniel, Morrow, Benitez, Murray, the Elk Grove Police Department, and the City of Elk Grove for violation of plaintiff's Fourth Amendment rights (on false arrest and excessive force grounds) in violation of 42 U.S.C. § 1983 and Cal. Civ. Code § 52.1(b). The complaint also states colorable claims for battery,*fn2 intentional infliction of emotional distress,*fn3 and negligence.
For the reasons stated below, the court finds that plaintiff's remaining causes of action fail to state a claim upon which relief can be granted, and that the SAC does not state a cognizable claim against defendants Robert Lehner, Elk Grove Police Department Bureau of Professional Standards, Craig Potter, and Scott French.
The Civil Rights Act 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. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 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).
As plaintiff was previously advised, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Here, plaintiff's claims against Robert Lehner, Chief of Police, are frivolous because she has not shown that Lehner had any involvement with her detention and arrest.
Plaintiff's claims against the Elk Grove Police Department Bureau of Professional Standards and two of its investigators, Craig Potter and Scott French, should also be dismissed. Plaintiff reported the incident of her arrest to the Elk Grove Police Department Bureau of Professional Standards and is greatly dissatisfied with how the investigation into alleged police misconduct was handled. That dissatisfaction, however, does not a constitutional claim make.
Additionally, the SAC fails to state claims for violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983. "The Eighth Amendment's prohibition of cruel and unusual punishments applies only after conviction and sentence." Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Here, plaintiff was never convicted or sentenced. To the extent plaintiff attempts to state a violation of the Due Process Clause of the Fourteenth Amendment related to the detention and arrest, that claim is improper. All constitutional claims, including excessive force claims, resulting from an arrest, investigatory stop, or other ...