United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is proceeding without counsel in an action brought under 42
U.S.C. § 1983. His filings indicate that he was
incarcerated at the time he filed this action. See
ECF No. 2 at 1. Recent filings indicate that he has been
released on probation, however. See ECF No. 18 at 1.
In addition to filing a complaint (ECF No. 1), plaintiff has
filed an application to proceed in forma pauperis. ECF No. 2.
Application to Proceed In Forma Pauperis
light of the filings indicating that plaintiff is no longer
incarcerated (ECF No. 18 at 2), the court will deny the
pending application to proceed in forma pauperis by a
prisoner as moot. Plaintiff must file a non-prisoner
application to proceed in forma pauperis within thirty days
of this order's filing. The court will direct the clerk
to send plaintiff the proper form. Alternatively, plaintiff
may pay the full filing fee of 400 dollars.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
Even though it appears plaintiff is no longer incarcerated,
the court is still required to screen his complaint because
he seeks to proceed in forma pauperis. 28 U.S.C. §
1915(e)(2). The court must dismiss a complaint or portion
thereof if the prisoner has raised claims that are legally
“frivolous or malicious, ” that fail to state a
claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1), (2).
“is [legally] frivolous where it lacks an arguable
basis either 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).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, in order to survive dismissal for failure
to state a claim, a complaint must contain more than “a
formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure ' 1216
(3d ed. 2004)).
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, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Bell Atl.
Corp., 550 U.S. at 556). In reviewing a complaint under
this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex
Hosp. Trs., 425 U.S. 738, 740 (1976), as well as
construe the pleading in the light most favorable to the
plaintiff and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
alleges that each of the named defendants had some
involvement in the illegal towing of his automotive trailer
and denial of his subsequent county tort claim. ECF No. 1 at
8-9. After review of the complaint and, for the reasons
stated below, the court finds that plaintiff has failed to
state a cognizable claim against any defendant. Accordingly,
plaintiff's complaint will be dismissed with leave to
well established that sub-departments or bureaus of
municipalities are not considered “persons” who
may be sued under section 1983. See United States v.
Kama, 394 F.3d 1236, 1240 (9th Cir. 2005) (concurring)
(“[M]unicipal police departments and bureaus are
generally not considered ‘persons' within the
meaning of Section 1983.”); Rodriguez v. Cnty. of
Contra Costa, No. C 13-02516 SBA, 2013 U.S. Dist. LEXIS
158511, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013)
(citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir.
1995)) (“Although municipalities, such as cities and
counties, are amenable to suit under Monell, sub-departments
or bureaus of municipalities, such as the police departments,
are not generally considered ‘persons' within the
meaning of § 1983.”). Accordingly, plaintiff may
not pursue this action against defendants Fairfield Police
Department, Programs Office of Solano County Jail, and Solano
County Board of Supervisors.