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Wahid Shabazz v. Mayor R. Rex Parris

November 2, 2012

WAHID SHABAZZ, PLAINTIFF,
v.
MAYOR R. REX PARRIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

On July 5, 2012, Wahid Shabazz ("Plaintiff"), a state prisoner proceeding pro se, lodged a civil rights complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). On October 16, 2012, Plaintiff filed a First Amended Complaint ("FAC").

SCREENING STANDARDS

In accordance with the provisions governing in forma pauperis proceedings, the Court must screen the FAC before ordering service to determine whether the action: (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). This screening is governed by the following standards:

A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) the plaintiff fails to state a cognizable legal theory; or (2) the plaintiff has alleged insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim on which relief may be granted, allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "'[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'" Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

Although a complaint "does not need detailed factual allegations" to survive dismissal, a plaintiff must provide "more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (rejecting the traditional "no set of facts" standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The complaint must contain factual allegations sufficient to rise above the "speculative level" (Twombly, 550 U.S. at 555), or the merely possible or conceivable. Id. at 557, 570.

Simply put, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the complaint presents enough facts "to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard is not a probability requirement, but "it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that pleads facts that are merely consistent with liability stops short of the line between possibility and plausibility. Id.

In a pro se civil rights case, the complaint must be construed liberally to afford plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure. Id. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id. at 623; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

After careful review and consideration of the FAC under the relevant standards and for the reasons discussed below, the Court finds theFAC must be DISMISSED WITH LEAVE TO AMEND.

PLAINTIFF'S ALLEGATIONS

Plaintiff names the following Defendants: R. Rex Parris, Mayor of the City of Lancaster; William Pickett, Los Angeles County Sheriff's Department ("LACSD") Detective; Anthony Delia, LACSD Detective; Daneil Farrell, LACSD Detective; Greg Conners, "Government Agent"; Mike Thompson, LACSD Detective; and Kevin Radisay, "Head of Government ICE Agency." All Defendants are named in their individual and official capacities. (FAC at 6-7.)

Plaintiff alleges the following in the FAC: LACSD officers, DEA agents, and other federal officers were assigned to cases against Plaintiff beginning in December 2008. "But they were unable to obtain evidence needed to support their theories." Because these officers and agents knew that Parris, the Attorney General's Office, and the Department of Justice "regularly participated in a pattern of racketeering activity to violate citizen rights and obstruct justice, these officers felt secure in committing acts in violation of federal and state criminal statu[t]es." These officers and agents know they will not be investigated or prosecuted by other state and federal law enforcement agencies. "These officers and agents, with the assistance of [Parris] and other known and unknown officers and agents [were] allowed to operate with the impunity of law and are rewarded for conviction and protected if ever caught by parties outside of state officers and the DOJ with this knowledge. (FAC at 2.)

In February 2009, Plaintiff traveled from Las Vegas to Lancaster, and was visiting family members. On February 28, 2009, a search warrant was executed by LACSD officers at the house where Plaintiff was staying. Detective Daneil Farrell searched Plaintiff's car, which was parked across the street. This search was outside the scope of the warrant.

Farrell said he found one ecstasy pill in the drunk. Farrell seized $1732.00 from Plaintiff's pocket. Plaintiff was arrested for possession of a controlled substance. When Plaintiff was released, the money was not returned to him. Plaintiff filed a complaint with the internal affairs office, after which Farrell threatened Plaintiff for filing the complaint and told him to go back to Las Vegas. (FAC at 31.)*fn1 Farrell "[t]hreaten[ed] using racial comment, discrimination ...


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