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Dennis Maric v. Fresno County

July 31, 2012

DENNIS MARIC,
PLAINTIFF,
v.
FRESNO COUNTY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S FIRST AMENDED COMPLAINT

INTRODUCTION

Plaintiff Dennis Maric ("Plaintiff") filed a complaint on January 23, 2012, naming numerous defendants and asserting various civil rights causes of action and other claims. (Doc. 1.) On April 13, 2012, this Court dismissed the complaint with leave to amend. Plaintiff was to file an amended complaint no later than May 14, 2012. (Doc. 4.)

On May 9, 2012, Plaintiff filed a First Amended Complaint ("FAC"). The caption identifies the following parties as Defendants: the County of Fresno, the Fresno County Sheriffs Department, Fresno County Deputy Sheriffs Alvarado, Burk, Maldonado and Robinson, and an unspecified number of Doe defendants. Plaintiff asserts approximately thirty-one separate causes of action*fn1 , including numerous civil rights violations, as well as claims of false imprisonment, and assault and battery. (Doc. 5.)

DISCUSSION

A. Screening Standard

"Notwithstanding any filing fee, or any portion thereof, that may have been paid," the Court shall dismiss a case at any time if it determines that the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). See also Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . .." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 678.

If the Court determines that the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the Plaintiff cannot prevail on the facts that he has alleged and that an opportunity to amend would be futile. Lopez, at 1128.

A claim is frivolous if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Id. A federal court may dismiss a claim as frivolous if it is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Id.

The Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

A pleading may not simply allege a wrong has been committed and demand relief. The underlying requirement is that a pleading give "fair notice" of the claim being asserted and the "grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47-48 (1957); Yamaguchi v. United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997).

B. Plaintiff's Factual Allegations

Plaintiff alleges that on March 18, 2010, law enforcement officers were called to the home he shared with his wife, Marie Maric (hereafter "Marie"), at 445 S. Argyle Avenue, Apartment 108, in Fresno, California. He contends that Marie admitted attacking and assaulting him, and that Plaintiff did not hit her; nevertheless, Marie was not arrested. Sometime later, Marie called authorities again, indicating she wanted Plaintiff removed from their shared residence. (Doc. 5 at 3-4.)

Plaintiff contends once law enforcement personnel arrived following Marie's second call, Plaintiff answered the door. Marie and the couple's two children were sitting on a couch near the front door. When he was asked what was going on, Plaintiff responded that he did not wish to say anything and that he was fine. Despite his statement, and the fact that the officers at the door could see Marie and the two children were unharmed, officers entered the home, pushed Plaintiff against a wall and then pulled him from the apartment. He was then handcuffed. (Doc. 5 at 4-5.)

Plaintiff advised the officers that their actions were illegal and that he was aware of his Constitutional rights. The officers became aggravated and attacked him from behind, knocking him to the ground with their bodies, and causing him injury. Thereafter, Plaintiff was told by the officers to shut up and to "smoke some more dope." Before eventually being placed in a patrol car, Plaintiff was forced to stand in his shorts and nightshirt in the cold at night. A number of firearms were illegally confiscated from the apartment. Following Plaintiff's arrest, all criminal charges filed against him were eventually dismissed. (Doc. 5 at 5-6.)

C. Analysis

Federal Claims*fn2

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 action at law, suit in equity, or other proper proceedings for redress.

42 U.S.C. § 1983 (hereafter "section 1983").

Plaintiff was previously cautioned that the statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, 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 that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Privacy as Against Alvarado, Maldonado, Robinson & Burk

Plaintiff contends that deputies Alvarado, Maldonado, Robinson and Burk violated his right to privacy by their warrantless, nonconsensual entry into his home, in the absence of exigent circumstances or probable cause. (See Doc. 5 at 7-8, 12, 18, 25.)

The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects individuals from all unreasonable searches and seizures and "has drawn a firm line at the entrance to the house." Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Absent probable cause and exigent circumstances, "that threshold may not reasonably be crossed without a warrant." Id. The exigent circumstances doctrine recognizes that a warrantless entry by law enforcement officials "may be legal when there is compelling need for ...


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