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Robert E. Dowd v. County of Kern

July 27, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Robert Dowd ("Plaintiff") seeks to proceed pro se in this action initiated on June 29, 2012. Pending before the Court is Plaintiff‟s complaint for screening (Doc. 1), and the motion to proceed in forma pauperis (Doc. 2). For the followings reasons, Plaintiff‟s complaint is DISMISSED WITH LEAVE TO AMEND, and the motion to proceed in forma pauperis is GRANTED.


As a general rule, all parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. 28 U.S.C. § 1914(a). However, the Court may authorize the commencement of an action "without prepayment of fees and costs of security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). Therefore, an action may proceed despite a failure to prepay the filing fee only if leave to proceed in forma pauperis ("IFP") is granted by the Court. See Rodriguez v. Cook, 169 F.3d 1178, 1177 (9th Cir. 1999). The Court has reviewed the application and has determined that it satisfies the requirements of 28 U.S.C. § 1915(a). Therefore, Plaintiff‟s motion to proceed in forma 2 pauperis is GRANTED. 3


When an individual seeks to proceed in forma pauperis, the Court is required to review the 5 complaint and identify "cognizable claims." See 28 U.S.C § 1915(a)-(b). The Court must dismiss a 6 complaint, or portion of the complaint, if it is "frivolous, malicious or fails to state a claim upon which 7 relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 8

28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2). A claim is frivolous "when the facts alleged rise to the 9 level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).


General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A pleading stating a claim for relief must include a statement affirming the court‟s jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to "less stringent standards." Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff‟s claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. 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. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant‟s liability, it "stops short of the line between possibility and plausibility of "entitlement to relief.‟

Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should 7 assume their truth and determine whether the facts would make the plaintiff entitled to relief; 8 conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant 9 leave to amend a complaint to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).


Plaintiff reports he was arrested by a member of the Kern County Sheriff‟s Department in May 2009. (Doc. 1 at 6). According to Plaintiff, he was held in custody while the Deputy who arrested him spoke with a superior officer, Sgt. Scott Jelletech. Id. Plaintiff contends he heard Sgt. Jelletech say, "We cannot justify what we have done." Id. Thereafter, Plaintiff was released from custody. Id.

Plaintiff alleges he was approached by a representative of Kern County Animal Control ("Animal Control") in January 2010, and was informed there had been reports about the condition of his dog "Taft." (Doc. 1 at 8). The Animal Control officer and Plaintiff agreed to have Taft evaluated by a veterinarian, and on February 26, 2010, Dr. Bryan Jensen completed an evaluation. Id. Dr. Jensen reported he discussed euthanasia with Plaintiff, which was declined. Id. at 34. Dr. Jensen opined: "The owner takes care of the dog, but he‟s not healthy, is happy. Neglect? Probably not. No sign of abuse. Dog would be a good candidate for a cart." Id.

Plaintiff alleges he was approached by Jayson Smith, a representative Animal Control regarding Taft on June 30, 2010. (Doc. 1 at 9). Mr. Smith informed Plaintiff he had not received the report of Dr. Jensen. Id. As a result, Plaintiff alleges a copy of the report was delivered to Kern County Animal Control Shelter that day. Id. However, on July 1, 2010, Mr. Smith returned to the property. Id. According to Plaintiff, Mr. Smith contacted the Kern County Sheriff‟s Department, and Deputy Jaime Alarcon arrived in response to Mr. Smith‟s call. Id. at 10. At the time Deputy Alarcon arrived, Plaintiff contends he was cutting vegetables and had "a short $.50 metallic butterknife with a 2 rounded point in his right hand which [sic] the short width blade approximately 3 and one half inches 3 long." Id. Plaintiff reports that as he approached the deputy, "the officer ordered [him] to drop the 4 knife" and he did so. Id. at 10. Plaintiff asserts defendants Scott Jellitech and Sgt. Metter arrived after 5 he was ordered to drop the knife. Id. The officers arrested Plaintiff for "assault with a deadly weapon, 6 animal cruelty and disobedience of a peace officer in the performance of his duties." Id. 7

According to Plaintiff, the officers "knew or should have known" Plaintiff had not abused Taft, 8 had not assaulted an officer with a deadly weapon, and "that in failing to produce his driver‟s license 9 he had not interfered with a peace officer in the performance of his duties." (Doc 1 at 11). However, Plaintiff was convicted of a violation of California Penal Code Section 148,*fn1 and fined $100. Id. at 12.

Plaintiff contends the State Bar of California ("State Bar") and Kern County District Attorney‟s Office communicated throughout "the time [Plaintiff] was waiting and preparing for the trial." (Doc. 1 at 23). Plaintiff reports, the State Bar was "activity and aggressively participating in this act to terminate [his] right to practice law, by virtue of the 2009 and then the 2010 arrest then charges for criminal conduct and because [his] approach to practice of law was that justice should not cost . . ." Id. at 24.

In May 2010, Plaintiff "learned that he would be charged with misconduct" by the State Bar due to a signature that appeared upon a declaration he filed in a civil action. (Doc. 1at 20). Plaintiff explained that in 2007, he filed a declaration that bore his name on a signature line, but was signed his assistant. Id. Although Plaintiff "informed the court that the signature was made with his direct authority," the declaration was stricken because he had not, in fact, been the one to sign. Id. Plaintiff asserts Judge Donald F. Miles presided over the trial before the State Bar proceedings, and issued an opinion, finding Plaintiff "did intend to deceive a judge." Id. at 21. Plaintiff contends Judges Miles failed "to consider and follow the law," and analogized Plaintiff‟s case to those "which were factually dissimilar." Id. Plaintiff asserts Judge Miles adopted the recommendation of the State Bar of a suspension of 90 days. Id. at 22.

The ruling of Judge Miles was affirmed by the State Bar Appellate Court. (Doc. 1 at 30). In 2 addition, Plaintiff asserts "the State Bar was awarded costs of $13,000.00," and the costs must be paid 3 before he may return to the practice of law. Id. Plaintiff reports that his right to practice law was 4 terminated in November 2011. Id. 5


Based upon the above facts, Plaintiff alleges violations of his civil rights, unlawful and 7 malicious arrest, malicious prosecution, conspiracy, and intentional infliction of emotional distress. 8

(Doc. 1 at 27-32). In addition, Plaintiff states the action is brought pursuant to 42 U.S.C. § 1983, for 9 defendants‟ "refusing or neglecting to prevent the abuse by supervisors." Id. at 2. Plaintiff identifies the following defendants in the action: Kern County; Kern County Sheriff‟s Department; Kern County Animal Control; Jayson Smith; Deputy Sheriff Jaime Alarcon; Sheriff Sergeant Scott Jelletic; Sherriff Sergeant Mettler; the California State Bar; Jean Cha; Donald F. Miles, Judge for the California State Bar Court; P.J. Remke, California State Bar Appellate Justice; and J. Epstein, California State Bar Appellate Justice; a "John Doe" attorney for the California State Bar; and several other "Doe" defendants (collectively, "Defendants"). (Doc. 1 at 1).

A. Civil Rights Violations and 42 U.S.C. § 1983

As his first cause of action, Plaintiff states "all defendants" have violated his civil rights. (Doc. 1 at 27). Specifically, Plaintiff contends Defendants violated his rights under the First, Fifth, Eighth, Ninth, and Fourteenth Amendments of the Constitution. Id. at 2. Notably, the amendments do not create direct causes of action. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 929 (9th Cir. 2001) ("a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution"). However, 42 U.S.C. § 1983 ("Section 1983") "is a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994). Thus, an individual may bring an action for the deprivation of civil rights pursuant to Section 1983, which states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, 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. To plead a Section 1983 violation, a plaintiff must allege facts from which it may 2 be inferred that (1) a constitutional right was deprived, and (2) a person who committed the alleged 3 violation acted under color of state law. West v. Atkins, 487 U.S. 42, 28 (1988); Williams v. Gorton, 4 529 F.2d 668, 670 (9th Cir. 1976). 5

A plaintiff must allege a specific injury was suffered, and show causal relationship between the 6 defendant‟s conduct and the injury suffered. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 7

Thus, Section 1983 "requires that there be an actual connection or link between the actions of the 8 defendants and the deprivation alleged to have been suffered by the plaintiff." Chavira v. Ruth, 2012 9 U.S. Dist. LEXIS 53946, at *3 (E.D. Cal. Apr. 17, 2012). An entity or individual deprives another of a federal right "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 so that it causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In other words, "[s]ome culpable action or in action must be attributable to defendants." See Puckett v. Cororan Prison- CDCR, 2012 U.S. Dist. LEXIS 52572, at *7 (E.D. Cal. Apr. 13, 2012).

1. Eleventh Amendment Immunity

The Eleventh Amendment provides: "The Judicial power the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Constitution, amend. XI. Therefore, the Eleventh Amendment prohibits federal jurisdiction over claims against a state, unless the state has consented to suit. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000).

Immunity under the Eleventh Amendment may apply to officials of a state because "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). The Supreme Court opined, "Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official‟s office. As such, it is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citations omitted).

a. The State Bar

The California Supreme Court explained, "The State Bar is a constitutional entity, placed 3 within the judicial article of the California Constitution, and thus expressly acknowledged as an 4 integral part of the judicial function." In re Rose, 22 Cal. 4th 430, 438 (2000) (citing Cal. 5

Constitution, Art. VI, § 9). It is "a public corporation" created "as an administrative arm of [the 6 California Supreme Court] for the purpose of assisting in matters of admission and discipline of 7 attorneys." Id. However, the Ninth Circuit has determined that Eleventh Amendment immunity 8 applies to suits for damages brought against the California State Bar and its employees acting in their 9 official capacity. Hirsh v. Justices of the Supreme Court, 67 F.3d 708, 715 (9th Cir. 1995) ("The Eleventh Amendment‟s grant of sovereign immunity bars monetary relief from stage agencies such as California‟s Bar Association and Bar Court"); see also Lupert v. California State Bar, 761 F.2d 1325, 1327 (9th Cir. 1985).

The State Bar‟s status as an entity entitled to Eleventh Amendment immunity is a matter of law that cannot be overcome by factual allegations. Wu v. State Bar of California, 953 F. Supp. 315, 319 (C.D. Cal. 1997). Accordingly, the State Bar is not amenable to suit, and the claims for violations of civil rights by the State Bar are DISIMISSED.

b. State Bar Court Judges

Plaintiff asserts Judge Miles, Justice Remke, and Justice Epstein violated his civil rights through the proceedings of the State Bar Court. However, as employees of the State Bar, Eleventh Amendment Immunity extends to these defendants to the extent they ...

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