United States District Court, C.D. California
DEVIN M. HARMON, Plaintiff,
CITY OF GLENDALE, et al., Defendants.
ORDER TO SHOW CAUSE
ALICIA G. ROSENBERG, Magistrate Judge.
On January 8, 2015, Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983. ("Complaint") For the reasons discussed below, it appears Plaintiff has failed to state a claim.
The court therefore orders Plaintiff to show cause by February 23, 2015 why this court should not recommend dismissal of this action with prejudice based on failure to state a claim. See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) ("A trial court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim....").
ALLEGATIONS IN COMPLAINT
The only named defendant in the caption is the City of Glendale ("City"). (Complaint at 1.)
On September 12, 2013, the City's custodian of records advised Plaintiff that it was unable to provide Plaintiff with information related to his 2004 arrest because the records had been destroyed pursuant to policy. ( Id. at 5 (Claim I), Ex. A.)
Plaintiff refers to a civil rights complaint he filed in this court in 2007: Harmon v. Glendale, Case No. CV 07-398-JLS-AGR (" Harmon I "). (Complaint at 5a.) In Harmon I, Plaintiff alleged a claim of malicious prosecution in connection with a criminal trial for a 2004 burglary and possession of stolen property. On March 29, 2005, a jury acquitted Plaintiff. Harmon I, Dkt. No. 145 at 3-4.) On June 10, 2008, the district court adopted this court's Report and Recommendation and entered judgment for defendants. Id., Dkt. No. 149. On August 26, 2010, the Ninth Circuit affirmed. Id., Dkt. No. 160.
On January 26, 2011, the district court denied Plaintiff's Rule 60(b) motion. Id., Dkt. No. 173. On April 7, 2011, the district court denied Plaintiff's motion for reconsideration. Id., Dkt. No. 180. On June 15, 2011, the district court denied Plaintiff's Rule 60(d) motion. Id., Dkt. No. 184. On December 7, 2011, the Ninth Circuit found Plaintiff's appeal to be frivolous. Id., Dkt. No. 195.) On December 18, 2012, the Ninth Circuit denied Plaintiff's petition for a writ of mandamus. Id., Dkt. No. 204. On May 28, 2013, the Ninth Circuit denied another petition for writ of mandamus. Id., Dkt. No. 210. On September 25, 2013, Plaintiff filed a motion pursuant to Rule 60(d)(b)(3) in which he makes the same claims as he does in the instant complaint. Id., Dkt. No. 215. On October 11, 2013, the district court denied Plaintiff's motion. Id., Dkt. No. 216.
Plaintiff alleges that the City's destruction of the documents is "illegal." (Complaint at 5a.)
Plaintiff alleges that his First Amendment right to redress was violated by the "illegal destruction of exculpatory and/or relevant evidence." ( Id. at 5 (Claim I).) Plaintiff also alleges his Due Process rights were violated. ( Id. at 5 (Claim II).)
Plaintiff seeks damages and an injunction "as to the continuing violation of Plaintiff's constitutional rights." ( Id. at 6.)