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Harrell v. Fairfield Police Dept.

United States District Court, E.D. California

May 9, 2017

JOSHUA NEIL HARRELL, Plaintiff,
v.
FAIRFIELD POLICE DEPT., et. al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. Application to Proceed In Forma Pauperis

         In 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.

         II. Screening Requirements

         The 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).

         A claim “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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at 327.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 basis. Id.

         “Federal 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)).

         “[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, 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 (1969).

         III. Screening Order

         Plaintiff 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 amend.

         A. Municipality Sub-Departments

         It is 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.

         B. ...


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