The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.
The determination that plaintiffs may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or 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 where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.
In this case, plaintiff alleges that on September 29, 2010, she was sitting in her vehicle reading a book when an unknown Sacramento County deputy sheriff blocked in her vehicle with his patrol car, and asked her for her identification. After furnishing her identification, plaintiff asked whether she had done something wrong and the deputy told her that she could not hang out at the park. The deputy asked about her legal status and financial resources, and insisted that plaintiff call her home state of Pennsylvania to inform them of her whereabouts. According to plaintiff, the deputy pulled out her phone, called the state of Pennsylvania, and demanded that plaintiff tell Pennsylvania that she was in California. The deputy further asked whether plaintiff was on probation, parole, or whether she had any warrants out for her arrest. Plaintiff was told that she was not allowed to have her feet up on the dashboard in her vehicle. At some point, defendant Holt, another Sacramento County deputy sheriff, also arrived at the scene. The officers instructed plaintiff to go home or she would be given a ticket. Plaintiff claims that she was detained and harassed for about 45 minutes. Subsequently, the deputy and defendant Holt allegedly filed a false report stating that plaintiff was verbally uncooperative and argumentative.
Plaintiff filed suit against the unknown deputy, Holt, Scott Jones (the Sacramento County Sheriff), Matt Morgan (a lieutenant with the Sacramento County Sheriff Department Bureau of Professional Standards), the County of Sacramento, the Sacramento County Sheriff Department, and the Sacramento County Sheriff Department Bureau of Professional Standards.*fn1
The complaint for damages primarily alleges liability for constitutional violations under 42 U.S.C. § 1983 and for related state law tort claims. Plaintiff claims that the County of Sacramento and the Sacramento County Sheriff Department's policies, customs, and practices, such as their failure to provide adequate training and lack of supervision, gave rise to the deprivation of her constitutional rights. \\\\
For the limited purposes of screening, plaintiff's complaint appears to state colorable claims for relief against defendants Holt, Sacramento County Sheriff Department, and the County of Sacramento. For the reasons stated below, however, the court finds that plaintiff fails to state a cognizable claim against the remaining defendants.
As an initial matter, most of plaintiff's allegations relate to the unknown deputy. Doe pleading in the federal courts is not favored as a general rule. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In any subsequent amended complaint, plaintiff must identify the unknown deputy.
Furthermore, 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 ...