FINDINGS AND RECOMMENDATIONS
Plaintiff James Owens is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Plaintiff's in forma pauperis application makes the showing required by 28 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis status does not complete the inquiry required by the statute. "'A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit.'" Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) ("It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis."). Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.
Here, plaintiff's complaint does not contain a short and plain statement of plaintiff's claim showing that he is entitled to relief. In this regard, plaintiff alleges in his complaint the following. On the morning of July 21, 2011, plaintiff walked down to "his mine claim" and discovered that "two felons from Idaho," Janet Sylden and Russell Nuxoll, "had jumped his claim and moved in . . ."*fn1 (Compl. (Doc. No. 1) at 2.) Fearing for his safety plaintiff retreated. Thereafter, Sylden and Nuxoll filed a false police report alleging that plaintiff had waived a silver hand gun at them. Just prior to when defendant D. Saunders, a Nevada County Deputy Sheriff, made contact with plaintiff, plaintiff had been shooting his rifle. Plaintiff pointed the rifle at an oak tree when a car passed by so plaintiff lowered the rifle and placed the loaded rifle on the seat of his vehicle. Deputy Saunders approached in a Honda SUV with red flashing lights, exited with his gun drawn and asked plaintiff if he was Jim Owens and what he was doing. Plaintiff responded that he was Jim Owens and that he was shooting his "gun." (Compl. (Doc. No. 1) at 2.) Deputy Saunders identified himself as a deputy sheriff, handcuffed plaintiff and told him to sit down. Deputy Saunders then confiscated plaintiff's loaded rifle from inside plaintiff's vehicle. Minutes later, two marked sheriffs' vehicles arrived. Deputy Saunders spoke with the two arriving deputies and informed plaintiff that a police report had been filed by Sylden and Nuxoll alleging that plaintiff had waived a hand gun at them earlier that morning. Deputy Saunders then informed the two other deputies that plaintiff had a loaded rifle in his vehicle. One of the deputies issued plaintiff a citation and plaintiff was released, though Deputy Saunders kept plaintiff's rifle. A criminal complaint was later filed against plaintiff in state court.
Based on these allegations, plaintiff's complaint purports to raise a claim pursuant to 42 U.S.C. § 1983 against Deputy Saunders alleging a violation of plaintiff's rights under the Fourth and Fourteenth Amendments for unlawful arrest, as well as state law claims for slander, false arrest and conversion of property.
The only asserted claim giving rise to federal jurisdiction in this action is plaintiff's alleged claim that his arrest was unlawful under the Fourth and Fourteenth Amendments. The Fourth Amendment, which applies to the states through the Fourteenth Amendment, protects against unreasonable searches and seizures by law enforcement officers. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Fourth Amendment requires law enforcement officers to have at least a reasonable suspicion of criminal activity before making a brief investigatory stop ("Terry stop"). See Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009) ("Police may detain or seize an individual for brief, investigatory purposes, provided the officers making the stop have reasonable suspicion that criminal activity may be afoot.") (citation and internal quotation marks omitted). During a Terry stop, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
In determining whether a stop was justified by a reasonable suspicion, the Court considers whether, in light of the totality of the circumstances, law enforcement had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). For purposes of this analysis, the totality of the circumstances includes "objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of law-breakers." Id. at 418.
Here, according to the allegations of plaintiff's complaint, it appears that Deputy Saunders contacted plaintiff because Sylden and Nuxoll had filed a police report accusing plaintiff of waiving a hand gun at them. The drawing or exhibiting of a firearm in the presence of another person in a rude, angry, or threatening manner is a crime under California law. See CAL. PENAL CODE § 417. In his complaint plaintiff alleges that when Deputy Saunders asked him what he was doing, plaintiff responded that he "was shooting [his] gun." (Compl. (Doc. No. 1) at 2.) Thus, the allegations of plaintiff's own complaint show that Deputy Saunders clearly had a particularized and objective basis for suspecting that plaintiff had engaged in criminal activity.
Morever, "[a] number of Ninth Circuit cases illustrate the types of conditions under which aggressive police actions during a Terry stop are warranted, and therefore do not constitute an arrest." Jackson v. Johnson, 797 F. Supp.2d 1057, 1064-65 (D. Mont. 2011). See, e.g., United States v. Miles, 247 F.3d 1009, 1011-13 (9th Cir. 2001) (approaching suspect with guns drawn, forcing him to kneel and handcuffing him before conducting any investigation did not constitute an arrest where officers had a report of an armed suspect and were outnumbered three to two in the immediate vicinity); Allen v. City of Los Angeles, 66 F.3d 1052, 1055-57 (9th Cir. 1995) (intoxicated passenger forced to lie on the ground and handcuffed at gunpoint, held not to constitute an arrest where companion was combative, passenger was drunk and stop was preceded by a high-speed car chase); United States v. Alvarez, 899 F.2d 833, 836-39 (9th Cir. 1990) (no arrest where police approached with weapons drawn after receiving credible tip that subject possessed explosives); United States v. Greene, 783 F.2d 1364, 1366-68 (9th Cir. 1986) (police ordered subject seated in a car to place hands on the headliner and drew weapons when he did not immediately comply, held not to constitute an arrest where police had informant's report that the suspect was in possession of a pistol); United States v. Taylor, 716 F.2d 701, 708-09 (9th Cir. 1983) (no arrest when police handcuffed companion of suspected drug dealer at gunpoint where police had strong evidence of drug activity and received briefing that dealer and his companions should be considered dangerous); United States v. Bautista, 684 F.2d 1286, 1287-90 (9th Cir. 1982) (handcuffing of two subjects justified, and not an arrest, where police suspected subjects of armed robbery and knew that a third suspect might still be in the vicinity).
However, even assuming plaintiff was arrested by the deputies, his complaint fails to state a cognizable claim. The Fourth Amendment requires that an arrest be supported by probable cause. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). "[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citations omitted).
An arrest is supported by probable cause if, under the totality of the circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the defendant had committed a crime. Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010); see also Ramirez v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009). The inquiry is not whether the suspect actually committed the offense, but rather whether a reasonable officer, based on information known to him/her at the time, had probable cause to think that the suspect could have committed the offense. See Blankenhorn v. City of Orange, 485 F.3d 463, 475 (9th Cir. 2007).
Here, according to the allegations of plaintiff's own complaint, after Deputy Saunders contacted plaintiff, presumably in response to the police report filed by Sylden and Nuxoll accusing plaintiff of waving a hand gun at them, Deputy Saunders asked plaintiff what he was doing and plaintiff informed Saunders that he had been firing his "gun." (Compl. (Doc. No. 1) at 2.) As noted above, the drawing or exhibiting of a firearm in the presence of another person in a rude, angry, or threatening manner is a crime under California law. In this regard, based on the information known to Deputy Saunders ...