IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 5, 2012
ROGER P. SNITCHFIELD,
RED BLUFF POLICE DEPT., ET AL., DEFENDANTS.
Plaintiff, who is proceeding pro se, brings this 42 U.S.C. § 1983 civil action. Since Plaintiff has been granted leave to proceed in forma pauperis, the court screens the complaint pursuant to 28 U.S.C. § 1915(e)(2). If, upon screening, the court determines that the action is frivolous or malicious, or fails to state a claim on which relief may be granted, it shall dismiss the case. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
On April 22, 2011, the Magistrate Judge filed Findings and Recommendations herein recommending dismissal without leave to amend. The order, which was served on all parties, contained notice that any objections to the Finding and Recommendations were to be filed within fourteen days. Plaintiff has filed such objections..
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this court has conducted a de novo review of this case. By virtue thereof this court declines to adopt the recommendation of the Magistrate Judge, but rather will return the matter to that judge for further consideration.
I. Factual Background*fn1
This action asserts two claims. First, Plaintiff alleges a traffic
violation which he claims was caused by entrapment.*fn2
The second claim involves his being questioned by an
investigator for the District Attorney's office.*fn3
Plaintiff names as defendants two police officers in Red Bluff and an investigator for the District Attorney office. Plaintiff alleges that, under the orders of Defendant Officer Scott Capilla, numerous police officers kept Plaintiff under daily surveillance in Red Bluff Riverside Park from September 2006 until April 28, 2008. Plaintiff asserts two motives for entrapment. First, Plaintiff claims the entrapment was an act of retaliation for an unrelated event in which Plaintiff failed to appear in court after being issued a subpoena. Second, Plaintiff believes the Defendants were "annoyed by [his] continued presence of several years in Red Bluff as a homeless person who slept in a vehicle." Plaintiff alleges as follows:
Shortly before I left Red Bluff Riverside Park in the evening of April 28, 2008, there was an unmarked police car which passed near my car to verify my presence and notify (by radio) two police vehicles (one unmarked) that I would soon be passing through the intersection where I would be cited. As soon as I entered the intersection on a green light an unmarked police car entered from the opposite side and violated my right of way by turning left directly in front of me in order to block me from getting any further into the intersection and to make it appear that I had entered on a red light.
There was a yellow light for three seconds after this happened and I proceeded to the center of the intersection before the light turned red. At about this time [Defendant] Officer Rossi, who was waiting around the corner and out of sight at the next intersection a block away, suddenly appeared and followed me out of the intersection, where I was cited. There was no marked police vehicle in sight when I entered the intersection.
Plaintiff claims to have had "a perfect driving record of more than twenty years" before being cited on April 28, 2008.
As to the second cause of action, Plaintiff claims that, in August 2007, Defendant Investigator Martin Perrone questioned Plaintiff while Plaintiff was in his car in Riverside Park. Defendant Perrone claimed to be conducting a "sweep" of the park and questioned whether Plaintiff had been consuming alcohol. Defendant Perrone eventually "left [Plaintiff] alone." As to the first cause of action the Magistrate Judge recommended dismissal without leave to amend. The Magistrate Judge failed to address the second claim.
A. The Traffic Stop
The Magistrate Judge held that plaintiff could not pursue his ticket claim because the defendant had been found guilty of the traffic violation and, thereforr, the claim was barred by virtue of the Rooker-Feldman doctrine. See Findings & Recommendations, ECF No. 8, at 3-4. Plaintiff, however, in response filled a copy of an illegible document he claims is a court minute showing that he was not convicted of the traffic violation, but of failing to appear in response to the ticket. This court has no idea what plaintiff was convicted of, and accordingly, will return the matter for consideration of the claim.*fn4
B. The Questioning Incident.
As to the questioning incident, the plaintiff cannot prevail on it as a separate claim, because standing alone, there appears to be no violation of his constitutional rights. Nonetheless, it is possible that the plaintiff may amend to allege an unconstitutional course of conduct.
According to Plaintiff, Defendant Investigator Martin Perrone approached Plaintiff in Riverside Park and "questioned [him] implying that [he] had been drinking (alcohol)." Pl's Compl. 3, ECF No. 5. It is established, however, that "police questioning, by itself, is unlikely to result in a Fourth Amendment violation." I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed. 2d 247 (1984). "The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976)). It appears from the complaint that Defendant Perrone's questions, when viewed in isolation, did not rise to the level of an "arbitrary and oppressive interference." Cf. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed. 2d 229 (1983) (noting that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen."). Recognizing the plaintiff is in pro per, however, the analysiscannot end there. It may be that plaintiff is alleging that the questioning was a part of a unconstitutional policy of harassment that he claims also gave rise to the traffic incident. If so, careful thought must be given to whether the totality of circumstances gives rise to a cognizable § 1983 claim has been alleged.
For the reasons provided above, the court declines to adopt the Magistrate Judge's recommendations and returns the matter to him for further consideration.
IT IS SO ORDERED.