The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff Raymond M. Fisher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed his complaint on September 19, 2011. Pursuant to the Court's October 3, 2011, order, he filed an amended complaint on March 5, 2012.
A. Screening Standard The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 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. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
B. Plaintiff's Allegations Plaintiff alleges that on November 1, 2007, Fresno Police Officer Hurdley stopped him while driving for an alleged traffic violation. He alleges that Officer Hurdley "conspired to violat[e] Plaintiff's constitutional rights under the Equal Protection Clause to execute an unconstitutional search and seizure and engage in malicious prosecution." Complaint, at 3. Plaintiff alleges that Officer Hurdley had no reasonable suspicion to justify the search and planted false evidence. Plaintiff was arrested and he alleges that this arrest violated his substantive due process rights. He alleges that he was acquitted of the charges by a jury, but that he had been deprived of his liberty, happiness and enjoyment of his family. Plaintiff also alleges that "this harassment, racial discrimination" caused hardship. He requests three million dollars in damages.
Plaintiff also cites the Ralph Act and Bane Act, as set forth in the California Civil Code.
1. Equal Protection Plaintiff's original complaint alleged racial profiling in violation of the Fourth Amendment by Officer Hurdley. The Court explained that a claim for racial profiling is not based on the Fourth Amendment, but rather is analyzed under the Equal Protection Clause. The Court provided Plaintiff with the legal standard for alleging an equal protection violation.
As the Court explained previously, to state a section 1983 claim for violation of the Equal Protection Clause, a plaintiff must show that he was treated in a manner inconsistent with others similarly situated, and the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class. Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005).
Plaintiff has again failed to offer supporting facts. He alleges that Defendant Hurdley stopped him while driving for an alleged traffic violation. Plaintiff mentions "racial discrimination," but he fails to provide any facts showing intentional discrimination, or differential treatment of others similarly situated. He does not allege membership in a protected class and does not explain why he believes that Defendant Hurdley intended to discriminate against him.
The lack of supporting facts also violates Rule 8(a), which requests that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief ...." Fed.R.Civ.P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
Plaintiff will be given an opportunity to amend this claim. This will be Plaintiff's final opportunity to submit an amended complaint that cures the deficiencies raised in this order.
2. Unconstitutional Search and Seizure The Fourth Amendment protects against unreasonable searches and seizures without probable cause. "This guarantee of protection against unreasonable searches and seizures ... marks the right of privacy as one of the unique values of our civilization and, with few exceptions, stays the hands of the police unless they have a search warrant ... on probable cause supported by oath or affirmation." McDonald v. United States, 335 U.S. 451, 453 (1948). "The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe, 470 U.S. 675, 682 (1985). "[T]he central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials." United States v. Ortiz, 422 U.S. 891, 895 (1975). However, "one's ...