United States District Court, E.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (Doc. 17)
Phillips Sanders (“Plaintiff”) appearing pro
se and in forma pauperis, filed a complaint
alleging civil rights violations pursuant to 42 U.S.C. §
1983 against numerous defendants. (Doc. 1). The Court
screened the pleading and dismissed the complaint with leave
to amend. (Doc. 8). On February 22, 2016, Plaintiff filed a
Motion for Reconsideration, as well as a Notice of Appeal
with the United States Court of Appeals for the Ninth Circuit
(“Ninth Circuit”). (Docs. 11 and 12). While the
appeal was pending, Plaintiff filed a First Amended Complaint
(“FAC”) on March 4, 2016. (Doc. 17).
Plaintiff’s Motion for Reconsideration was denied on
March 9, 2016. (Doc. 18). The Ninth Circuit dismissed
Plaintiff’s appeal on April 7, 2016, and issued the
mandate on May 2, 2016. (Docs. 19 and 20). The Court now
screens Plaintiff’s FAC.
is disorganized but appears to allege causes of action under
42 U.S.C. § 1983 for violations under the Fourth, Sixth,
Eighth, and Fourteenth Amendments of the United States
Constitution, as well as several state law claims including
intentional infliction of emotional distress, negligent
infliction of emotional distress, assault with a deadly
weapon, and California Civil Codes §§ 43, 51.7 and
52.1. Plaintiff lists eight individuals as Defendants
including: Fresno Police Officers Matthew and Sturgeon;
Fresno Public Defender Sabrina Ashjian; Fresno County
Assistant District Attorneys Stacy Phillips and John
Gatschet; Probation Officer Keyana Davis; Frenso County
Superior Court Appeals Clerk R. Arreola: and Kate Dashiel of
the Central California Appellate Program
(“CCAP”). The Court has screened the FAC and
dismisses the FAC with leave to amend.
noted in its previous screening order, Plaintiff’s
lawsuit challenges his a state criminal conviction and names
various court and attorney personnel who participated in that
conviction. In the last screening order, Plaintiff was
advised that many of his claims were barred and that he
needed to more clearly articulate his claims which he has not
done. Plaintiff has requested that the Court provide him a
legal team to assess his case. The Court cannot give
Plaintiff legal advice about his case, but will provide
Plaintiff with the appropriate legal standards and give
Plaintiff one more opportunity to amend his
Legal Standard for Screening
28 U.S.C. § 1915(e)(2), the Court must conduct an
initial review of the Complaint to determine whether it
“state[s] a claim on which relief may be granted,
” is “frivolous or malicious, ” or
“seek[s] monetary relief against a defendant who is
immune from such relief.” If the Court determines that
the Complaint fails to state a claim, it must be dismissed.
Id. Leave to amend may be granted to the extent that
the deficiencies in the Complaint can be cured by amendment.
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
1995). Courts deem a complaint “frivolous” when
it lacks “basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319 (1989). In other
words, a complaint is frivolous where the litigant asserts
“not only the inarguable legal conclusion, but also the
fanciful factual allegation.” Neitzke, 490
U.S. at 325.
state a claim, a complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2).
Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Plaintiff must set forth
“sufficient factual matter, accepted as true, to
‘state a claim that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. at
663 (quoting Twombly, 550 U.S. at 555). While
factual allegations are accepted as true, legal conclusions
are not. Id. at 678.
determine whether a Complaint states an actionable claim, the
Court must accept the allegations in the Complaint as true,
Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738,
740 (1976), construe pro se pleadings liberally in
the light most favorable to the Plaintiff, Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve
all doubts in the Plaintiff’s favor. Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). Pleadings of
pro se plaintiffs “must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010) (holding that pro se complaints
should continue to be liberally construed after
allegations in Plaintiff’s FAC appear to stem from an
incident on or about July 17, 2013, when he was arrested for
assault with a deadly weapon, and a domestic violence
offense. Plaintiff contends that a disagreement
occurred when a “young lady that did not live with him,
” asked him for some money. (Doc. 1, pgs. 15, lines
3-15). When he told her, “no, ” she became angry.
Id. He alleges he ran to his house and locked the
gate and the front door to get away from the woman, but she
climbed the gate and kicked in his front door. Id.
He was in shock and dragged the woman out of his house,
“without any bodily injury, ” and told her to
leave. Id. He realized that she was calling the
police, so he ran after her and yelled that she had kicked in
his door so the police could hear his version of events on
the 911 call. The police arrived at the scene and arrested
Plaintiff. In the FAC, Plaintiff contends that he was not
convicted of an offense as a result of this incident.
However, the Court takes judicial notice that in The
People v. Phillip Sanders, Case No.
F13906789 Fresno County Superior Court records
indicate that Plaintiff pled nolo contendere to the
misdemeanor offense of Corporal Injury to a Spouse/Cohabitant
in violation of California Penal Code § 273.5 on July
30, 2013. Plaintiff filed an appeal on September 18, 2013.
The judgment was reversed and the case was remanded to the
trial court for resentencing on September 5, 2014. Plaintiff
did not appear at the resentencing hearing on September 9,
2014 as ordered.
bulk of Plaintiff’s complaint revolves around
allegations that his public defender Sabrina Ashjian engaged
in ineffective assistance of counsel during his criminal
proceedings because she failed to get any discovery, did not
properly investigate his case before encouraging him to
plead, improperly permitted the imposition of felony
probation on a misdemeanor conviction, and failed to request
a stay of probation pending an appeal. (Doc. 17, pg. 13). He
also alleges that his bail was too high, and he was
improperly ordered to pay fees that he could not afford.
FAC further contends Officers Matthew and Sturgeon
manipulated their police reports as well as the 911 CD, and
engaged in malicious prosecution by bringing the charges
against him. (Doc. 17, pg. 4-5, 7, 9). Plaintiff also alleges
that at the time of his arrest, he was approached by two
Fresno patrol units including a K-9 unit. (Doc. 17, pg. 5-6).
Officer Sturgeon ordered Plaintiff to the ground with guns
drawn. After Plaintiff complied, Officer Sturgeon handcuffed
Plaintiff and placed him on the curb. He searched Plaintiff
and placed Plaintiff in the back of the patrol car for five
minutes. (Doc. 17, pgs. 6-7). Plaintiff contends that Officer
Sturgeon drove Plaintiff to his house where Officer Matthews
was located. (Id. at pg. 7). Once they arrived at
the residence, he contends that Officer Matthew placed his
handcuffs on Plaintiff “tightly and in a rough house
manner, ” leaving two pairs of handcuffs on Plaintiff
before removing Sturgeon’s handcuffs. (Id. at
on the above, Plaintiff alleges a violation of the Sixth
Amendment for ineffective assistance of Counsel, an Eighth
Amendment violation for cruel and unusual punishment based on
excessive bail, and a violation of due process under the
Fourteen Amendment against Public Defender Sabrina Ashjian.
(Id. at 13-15). Plaintiff also alleges a Fourth and
Fourteenth Amendment violation against Officers Matthew and
Sturgeon based on conspiracy, malicious prosecution, and
alleges they fabricated a police report resulting in his
illegal arrest. (Id. at pgs. 7, 9-10). Additionally,
he alleges state law claims pursuant to California Civil Code
§§ 43, 51.7 and 52.1, as well as intentional
infliction of emotional distress and negligent infliction of
emotional distress against Public Defender Ashjian, Officers
Matthew and Sturgeon (Doc. 17, pgs. 7-15). Finally, he
asserts a claim of assault with a deadly weapon against
Officer Sturgeon. (Doc. 17, pg. 8).
without any explanation, Plaintiff alleges causes of action
pursuant to California Civil Code § 52.1 against Fresno
County District Attorney Stacy Phillips and John Gatschet;
Probation Officer Keyana Davis; Frenso County Superior Court
Appeals Clerk R. Arreola: and Kate Dashiel of the Central
California Appellate Program
review of the Complaint reveals that Plaintiff has not stated
a cognizable claim and that several of his claims appear to
be barred for the reasons set forth below. However, Plaintiff
will be provided with the following legal standards so that
he can determine if he would like to pursue his case.
Moreover, Plaintiff is advised that any amended complaint
must include a request for relief as the FAC currently does
not identify any relief he is seeking.
42 U.S.C. § 1983 Claims
Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] ... subjects, or
causes to be subjected, any citizen of the United States ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution... shall be liable to the party
injured in an action at law …
42 U.S.C. § 1983.
to state a claim under section 1983, a plaintiff must allege
a deprivation of a right secured by the Constitution or other
law of the United States, and must show that the alleged
deprivation was committed by a person acting under color or
state law. West v. Atkins, 487 U.S. 42 (1988).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.
Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002). This requires the presentation of factual allegations
sufficient to state a plausible claim for relief.
Iqbal, 556 U.S. 662, 129 S.Ct. at 1949-50; Moss
v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
2009). The mere possibility of misconduct falls short of
meeting this plausibility standard. Iqbal, 129 S.Ct.
at 1949-50; Moss, 572 F.3d at 969. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Plaintiff
must set forth “sufficient factual matter, accepted as
true, to ‘state a claim that is plausible on its
face.’” Iqbal, 129 S.Ct. at 1949-50.
While factual allegations are accepted as true, legal
conclusion are not. Id. Any amended complaint must
meet this standard and Plaintiff must identify how each
defendant’s conduct resulted in a violation of his
constitutional rights in order to state a cognizable claim
under section 1983.