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Russo Bailey v. Steven Clarke

December 21, 2012


The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge


Before the Court is Defendants' motion to dismiss the complaint. [Doc. No. 13.] For the reasons and to the extent discussed below, the Court hereby GRANTS Defendants' motion.


On May 4, 2012, pro se Plaintiff Russo Bailey filed the operative complaint, along with a motion to proceed in forma pauperis. [Doc. Nos. 1, 2.] His complaint names Defendants San Diego County Sheriff William Gore, two Sheriff's Deputies, Steven Clarke and Marilu Marcq, and Clancy's Towing, Inc, and alleges that he was unlawfully arrested on January 24, 2012, jailed for three days, and had to pay a $449.25 fine to recover his impounded van. [Id. at 2-3.] His complaint seeks a permanent injunction and money damages for claims both under an array of criminal statutes, [see, e.g., id. at 3 (asserting "California Penal Code §215 [carjack], and California Vehicle Code § 10851.(a) [grand theft auto] . . ."); at 5-8 ("robbed of property, carjacked . . .;" "willfully disables or incapacitates any driver . . .;" "Robbery PC §211 . . . kidnap, Penal Code §209 . . . Penal Code §999b, §667, §1170.12 and carjackers §215.")], and also, most liberally construed, under 42 U.S.C. § 1983 for unlawful arrest, excessive force, and unlawful policies. [See id. at 5-6, 8.]

On June 6, 2012, the Court granted leave to proceed in forma pauperis and ordered service of the complaint. [Doc. No. 3.] As of October 15, 2012, the complaint had not been served and thus the Court noticed a November 6, 2012 dismissal hearing for want of prosecution pursuant to Fed. R. Civ. P. 4(m). [Doc. No. 5.] On October 26, 2012, Plaintiff returned executed summons as to each Defendant, [Doc. Nos. 8-11], and the Court accordingly vacated the Rule 4(m) dismissal hearing, [Doc. No. 12].

On November 15, Defendants filed the present motion to dismiss, arguing that Plaintiff's complaint fails to allege facts sufficient to support a cognizable legal theory and that Sheriff Gore is a state actor immune from liability under the Eleventh Amendment.[Doc. No. 13.] No opposition brief was filed.On December 17, 2012, the Court held a hearing at which Plaintiff failed to appear. [See Doc. No. 14.]


I. Failure to State a Claim

Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). Though pro se complaints enjoy "the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), Rule 8 still "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.

A. §1983 Claims

Liberally construed, Plaintiff asserts claims under §1983 for unlawful arrest, excessive force, and unlawful policies. [See id. at 5-6, 8.] "To state a claim for relief under section 1983, [] Plaintiff[] must plead two essential elements: 1) that the Defendants acted under color of state law; and 2) that the Defendants caused [him] to be deprived of a right secured by the Constitution and laws of the United States." Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997).

Even affording every benefit of the doubt, Plaintiff's §1983 claims amount to unadorned accusation. It is plausible that at least the Sheriff's Department Defendants, as law enforcement officials, acted under the color of state law. See Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991) ("generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law."). But exceedingly few facts are pled and no attempt is made to explain how any Defendant purportedly violated any of the array of statutes cursorily invoked. [See Doc. No. 1.] No facts are alleged regarding the circumstances that led to Plaintiff's arrest, why or how his van was impounded, what occurred during his arrest or confinement that might constitute any aspect of his claims, or how any of the Defendants were involved. [Id.] As such, the complaint fails to allege sufficient facts to support any cognizable legal theory and thus should be dismissed. See Cervantes, 656 F.3d at 1041. Still, because Plaintiff may be able to add allegations sufficient to state a claim, Plaintiff's §1983 claims are DISMISSED WITHOUT PREJUDICE.

B. Claims Under Criminal Statutes

Plaintiff also asserts claims under an array of criminal statutes. [See, e.g., Doc. No. 1 at 5-8 (invoking "Penal Code §999b, §667, §1170.12 and carjackers §215").] Generally, criminal statutes do not confer private rights of action, and thus any party asserting such a private right bears the burden of establishing its existence. Stupy v. United States Postal Serv., 951 F.2d 1079, 1081 (9th Cir. 1991) (identifying factors that may establish a private right of action conferred under a criminal statute). Here, all such claims "must be dismissed because Plaintiff has provided no authority or argument supporting his implicit contention that he may maintain a private right of action under th[ese] criminal statute[s]." Yeager v. City of San Diego Cal., 2007 WL 7032933, at *9 (S.D. Cal. June 1, 2007). Moreover, "[i]t is well settled that a private citizen may not use the courts as a means of forcing a criminal prosecution," Johnson v. Wennes, 2009 WL 1228500, at *4 (S.D. Cal. May 5, 2009) (citing United States v. Nixon, 418 U.S. 683, 694 (1974)), and thus "an individual may not bring criminal charges against someone by filing a complaint in this Court," id. (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)); see also Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (private ...

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