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Eddie Lee Burns Jr v. Kern County Sheriffs

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 15, 2012

EDDIE LEE BURNS JR., PLAINTIFF,
v.
KERN COUNTY SHERIFFS HINKLE, ET. AL, DEFENDANTS.

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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1)

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's complaint filed on September 24, 2012. (Doc. 1) For the reasons set forth below, the Court recommends that the matter be DISMISSED with leave to amend.

I. Screening Requirement

Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds in forma pauperis if the court determines that the case "fails to state a claim on which relief may be granted" or is "frivolous." A claim is frivolous "when the facts alleged rise to the 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).

II. PLEADING STANDARDS

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 sepleadings are held to "less stringent standards" than pleadings by attorneys. 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 of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted, Rule 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 assume their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant 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).

In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a 5 plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the deprivation complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).

III. PLAINTIFF'S ALLEGATIONS

Plaintiff's complaint is a little difficult to decipher. It appears that Plaintiff is asserting that Defendant Hinkle arrested him without probable cause. (Doc. 1 at 3) He provides no facts to support this conclusion other than the allegation that Deputy Hinkle "lied" and somehow cause the arrest to be charged as a misdemeanor rather than a felony. Id.

A. Fourth Amendment

The Fourth Amendment prohibits arrests without probable cause or other justification, and provides: "The right of the people to be secure in their persons. . . 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 persons or things to be seized." U.S. Constitution, amend. IV. A claim for unlawful arrest is cognizable when the arrest is alleged to have been made without probable cause. Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009) (quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)).

A claim for unlawful arrest is cognizable when the arrest is alleged to have been made without probable cause. Dubner v. City & County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th 2 Cir. 2009) (quoting United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). 3

The Supreme Court has explained: "If a plaintiff files a false arrest claim before he has been 4 convicted (or files any other claim related to rulings that will likely be made in a pending or 5 anticipated criminal trial), it is within the power of the district court, and in accord with common 6 practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended." 7 Wallace v. Kato, 549 U.S. 384, 393-94 (2007). If a plaintiff is convicted of a crime while the matter is 8 stayed, his claim for unlawful arrest may be barred under Heck v. Humphrey, 512 U.S. 477 (1994). 9

See id.

Here, Plaintiff claims that he was arrested for violation of California Penal Code section 290D. Indeed, review of the Kern County Superior Court docket reveals that Plaintiff is facing charges of Penal Code section 290.013(A) "Failure to Register -- Leave Jurisdiction."*fn1 This charge is a felony. The Kern County Superior Court docket reveals that Plaintiff has upcoming hearings scheduled and the matter has not yet been set for trial. Because a determination in this proceeding could invalidate the ongoing criminal proceedings, the Court here is not permitted to proceed. Thus, Plaintiff may not pursue this claim at this time. Instead, he may ask this Court to stay the action until his criminal proceedings are terminated or he may choose to refile this action after the criminal proceeding is completed, if appropriate.

B. Other claims

In his complaint, Plaintiff mentions that "they loose" the mail at the jail. The Court cannot determine whether Plaintiff intends to assert a claim based upon lost mail. If so, the claim, as it stands, is insufficient. He doesn't say what mail of his has been lost, who lost it or the how the lost mail raises a constitutional issue.

Likewise, Plaintiff complains that he is "going crazy" and being treated as though he is guilty,rather than innocent until proven guilty. Once again, he does not set forth any facts to show what is 2 happening, who is causing it to happen or how these actions raise to the level of a violation of the 3 Constitution. Thus, he has failed to state a claim.

VI. Leave to Amend

The Court will provide Plaintiff a final opportunity to amend his pleading to cure the 6 deficiencies noted in this order. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) ("A pro 7 se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the 8 deficiencies of the complaint could not be cured by amendment.") (internal quotations omitted). In his 9 second amended complaint, Plaintiff must address the deficiencies noted here. Plaintiff is advised that his failure to do so will result in an order dismissing this action.

In addition, Plaintiff is cautioned that in his first amended complaint, he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). Plaintiff is also advised that once he files his first amended complaint, his original pleadings are superceded and no longer serve any function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the first amended complaint must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. "All causes of action alleged in an original complaint which are not [re-]alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted).

IV. CONCLUSION

Accordingly, it is HEREBY ORDERED that:

1. Plaintiff's complaint (Doc. 1) is DISMISSED;

2. Plaintiff is granted 21 days from the date of service of this order to file an amended complaint that addresses the deficiencies set forth in this order. The amended complaint must bear the docket number assigned to this case and must be labeled "First Amended Complaint";

3. The Clerk of the Court is directed to send Plaintiff the form complaint for use in a civil rights action; and

4. Plaintiff is firmly cautioned that failure to comply with this order will result in an order dismissing this action.

IT IS SO ORDERED. 6


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