United States District Court, N.D. California
ORDER ON PLAINTIFF'S THIRD AMENDED COMPLAINT;
ORDER DIRECTING CLERK OF COURT TO ISSUE SUMMONS AND U.S
MARSHALS TO SERVE DEFENDANT WITH SUMMONS AND THIRD AMENDED
M. Ryu United States Magistrate Judge
Cynthia Shavers filed a complaint along with an application
to proceed in forma pauperis (“IFP”).
[Docket Nos. 1, 2.] Plaintiff then filed an amended
complaint. [Docket No. 10]. The court granted Plaintiff's
IFP application and dismissed the complaint and the amended
complaint with leave to amend. [Docket No. 12.] Plaintiff
thereafter filed a second amended complaint, which the court
dismissed with leave to amend. [Docket Nos. 15, 16].
Plaintiff has now filed a timely third amended complaint
(“TAC”). [Docket No. 17 (“TAC”)]. For
the reasons contained herein, the court finds that the TAC
sufficiently states a claim for the purposes of 28 U.S.C.
§ 1915(a). The court orders the Clerk of the Court to
issue summons and the U.S. Marshals to serve the summons and
the TAC on Defendant.
court is under a continuing duty to dismiss a case filed
without the payment of the filing fee under 28 U.S.C. §
1915(a) whenever it determines that the action “(i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). To make the determination
under 28 U.S.C. § 1915(e)(2)(B), courts assess whether
there is an arguable factual and legal basis for the asserted
wrong, “however inartfully pleaded.” Franklin
v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). A
court may dismiss a complaint where it is based solely on
conclusory statements, naked assertions without any factual
basis, or allegations that are not plausible on their face.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009);
see also Erickson v. Pardus, 551 U.S. 89 (2007) (per
the complaint has been filed by a pro se plaintiff, such as
here, courts must “construe the pleadings liberally . .
. to afford the petitioner the benefit of any doubt.”
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
“A pro se litigant must be given leave to amend his or
her complaint unless it is absolutely clear that the
deficiencies in the complaint could not be cured by
amendment.” Noll v. Carlson, 809 F.2d 1446,
1448 (9th Cir. 1987) (quotation omitted), superseded on
other grounds by statute, as recognized in Lopez v.
Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc); see
also Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
2000) (en banc).
TAC, Plaintiff asserts a claim for relief under 42 U.S.C.
§ 1983 against Defendant Officer Michael Murphy
(“Murphy”) of the Oakland Police Department.
According to Plaintiff, Murphy signed the affidavit for the
arrest warrant which resulted in her false arrest on March
24, 2015, knowing that the District Attorney
(“DA”) had declined to press charges against
Plaintiff. Id. at 4. Plaintiff alleges that Murphy
was intentionally harassing her. Id. at 5. Plaintiff
seeks monetary damages including $150, 000.00 in punitive
damages, and compensation for pain and suffering and lost
wages. TAC at 8.
the court's review of the TAC is limited to its
allegations, the court briefly summarizes the allegations in
Plaintiff's prior pleadings to provide background for the
allegations against Murphy in the TAC.
prior pleadings, Plaintiff alleges that an incident occurred
in December 2014 which involved family members and others.
She attempted to intervene, and was subsequently arrested and
placed in custody. Plaintiff was thereafter released on $30,
to the TAC, following the December 2014 arrest, Plaintiff
contacted the DA numerous times in January 2015 attempting to
exonerate herself. TAC at 4. The DA eventually declined to
press charges. TAC at 5.
on March 23, 2015, a number of officers appeared at
Plaintiff's sister's house with the intention of
arresting Plaintiff for violation California Penal Code
Section 1399. TAC at 5. Plaintiff spoke with the
officers because she was concerned about the arrest warrant
and was out on bail. Id. Plaintiff declined to give
her address to the officers until she contacted her bail
bonds person. Id. Plaintiff then contacted the DA
and the Sheriff's Office about the arrest warrant.
Id. The DA mentioned that Plaintiff's case was
“rejected” and that no further information was
needed from Plaintiff. TAC at 6.
March 24, 2015, Plaintiff got off work and was driving toward
the highway on her way to another job when she was pulled
over by five cars of officers. Id. at 6. The
officers asked Plaintiff to state her name and told her to
exit her car. Id. The officers handcuffed Plaintiff
and searched her car. Id. The officers said they had
an arrest warrant, so Plaintiff asked to see it. Id.
The officers, however, did not present the arrest warrant to
Plaintiff. Id. Plaintiff was then taken to Santa
Rita County jail without an arrest warrant. Id.
Because the officers did not have an arrest warrant, the
officers made a telephone call to have the arrest warrant
faxed over to the jail. Id. Plaintiff was then
booked, but thereafter posted $80, 000.00 bail. Id.
March 26, 2015, Plaintiff appeared in court, but the judge
never called Plaintiff's case. TAC at 6. Plaintiff and
the bailiff then called the DA's office. TAC at 6-7. The
DA's office repeatedly told Plaintiff and the bailiff
that Plaintiff's cases were rejected and that the office
did not know why Plaintiff was arrested on March 24, 2015.
TAC at 7.