The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
On June 25, 2012, plaintiff, proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Complaint"). Plaintiff sued the following defendants: City of Santa Monica ("City"); Timothy Jackman, former Chief of Santa Monica Police Department ("SMPD"); SMPD officers Louis Marioni, Scott McGowen, and Michael Chun; CSO Carlton Palmer; Terry White, described by plaintiff as City Attorney*fn1 ; and Does 1 through 10.
Congress has mandated that courts perform an initial screening of in forma pauperis civil actions. This Court "shall" dismiss such an action "at any time," including before service of process, if it concludes that the complaint is frivolous, fails to state a claim upon which relief can be granted, or seeks relief against a defendant who is immune from the requested relief. 28 U.S.C. § 1915(e)(2).
In screening a pro se civil rights complaint, the Court must construe its allegations liberally and must afford the plaintiff the benefit of any doubt. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). The standard applicable on screening is the standard for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id. The complaint need not contain detailed factual allegations, but it must contain sufficient factual matter to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). If a complaint is dismissed, a pro se litigant must be given leave to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d 621, 623 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
ALLEGATIONS OF THE COMPLAINT
On Thursday, May 5, 2011, sometime between 9:30 and 10:00 p.m., plaintiff was riding his bicycle on the Third Street Promenade in Santa Monica, when CSO Palmer jumped in front of him and shouted, "What the [obscenity] do you think you are doing!" (Complaint ¶ 7.) Plaintiff turned his bicycle around and walked towards Santa Monica Boulevard. (Id.) Officers Marioni, Chun, and McGowen shouted "Stop," and plaintiff complied. (Id.) The officers ordered plaintiff to sit down. (Id.) When plaintiff asked whether he was being arrested and on what charges, the officers said he was not being arrested but would be if he did not sit down. (Id.) The officers handcuffed plaintiff and searched his backpack. (Id.) They placed plaintiff and his bicycle in a patrol vehicle and drove him to the police station, without telling him that he was under arrest. (Id. at ¶¶ 7, 8.) Plaintiff contends that the officers had no warrant for his arrest and knew that he had not committed any crime or public offense. (Id. at ¶ 31.) He asserts that the incident resulted in his "first and only criminal booking." (Id. at ¶ 37.)
At the police station, defendants Marioni and McGowen subjected plaintiff to "multiple physical abuses," which included "being thrown to the floor in handcuffs, having arms and hands wrenched to deliberately and sadistically cause pain and suffering, and [being] thrown to the floor of a cell, uncuffed and threatened with a taser." (Complaint ¶ 8.)
In custody, plaintiff repeatedly demanded and was refused access to a telephone. (Complaint ¶ 9.) He was not arraigned and remained in custody until 9:45 p.m. on May 6, 2011, when he was released after posting $10,000 bail. (Id.) He was directed to appear in court and did so, but he discovered that no criminal charges had been filed. (Id.) The same day, plaintiff returned to the police station to file a formal complaint and was seen by the duty watch commander, who persuaded him not to do so. (Id.) On November 7, 2011, plaintiff filed a tort claim for damages, which was rejected on December 20, 2011. (Id. at ¶¶ 9, 30.) There was also an internal investigation. (Id. at ¶ 9.)
Plaintiff asserts the following federal claims: (1) unreasonable seizure, due process deprivations, and conspiracy against all defendants (Claim One); and (2) unlawful custom and practice against Jackman and the City (Claim Two). (Complaint ¶¶ 11-24.) He asserts the following state law claims: (1) assault and battery against the City, Marioni, McGowen, Chun, Palmer, and Does 5 through 10 (Claim Three); (2) false imprisonment against the City, Marioni, McGowen, Chun, Palmer, and Does 1 through 10 (Claim Four); (3) intentional infliction of emotional distress against all defendants (Claim Five); (4) negligence against all defendants (Claim Six); (5) negligent employment/retention/supervision against Jackman (Claim Seven); (6) violation of California Civil Code § 52.1 against all defendants (Claim Eight); (7) conversion against all defendants (Claim Nine); and (8) trespass to chattels against all defendants (Claim Ten). (Id. at ¶¶ 25-59.) Plaintiff seeks damages. (Complaint at 17.)
I. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FIRST AMENDMENT OR THE DUE PROCESS CLAUSE.
Plaintiff asserts claims under the First, Fourth, and Fourteenth Amendments. (Complaint ¶¶ 1, 12.) The Complaint contains no factual basis for a First Amendment claim under any cognizable legal theory.
See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)(claims can be dismissed for lack of cognizable legal theory or insufficient facts supporting cognizable legal theory). Nor has plaintiff asserted a factual basis for a due process violation. Because plaintiff was not arraigned, his claims challenging his arrest and detention arise under the Fourth Amendment, not the Due Process Clause. See Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996)(holding that "the Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest").
At this early stage of the action, the Court finds that plaintiff's Fourth Amendment claims against defendants Palmer, Marioni, Chun, and McGowen based on his arrest and detention withstand screening. Plaintiff's First and ...