United States District Court, E.D. California
CHARLES R. BRAND, Plaintiff,
ANNE MARIE SCHUBERT, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding in forma pauperis without
counsel in an action brought under 42 U.S.C. § 1983. His
initial complaint (ECF No. 1) was dismissed with leave to
amend. ECF No. 7. Plaintiff has filed an amended complaint
(ECF No. 13) which is before the court for screening.
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).
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. §
“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and internal quotations omitted), superseded by statute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 (1969).
alleges that, on April 27, 2015, deputy district attorney
Scott Schweibish made false statements in court. ECF No. 13
at 1-2. He claims that Schweibish made these statements
during an ex-parte proceeding and in connection with a
declaration of probable cause used to support a hold on
plaintiff's bail release. Id. at 2. Plaintiff
alleges this false testimony deprived him of his liberty
interest in posting bail. Id. at 4.
allegations do not state a cognizable claim. Prosecutors are
absolutely immune from civil suits for damages under §
1983 which challenge activities related to the initiation and
presentation of criminal prosecutions. Imbler v.
Pachtman, 424 U.S. 409, 427-28 (1976). This extends to
prosecutorial conduct during bail proceedings. See
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)
(“We have not retreated, however, from the principle
that acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate for the State,
are entitled to the protections of absolute
immunity.”). Further, assuming that Schweibish acted as
a witness during the relevant proceeding, he is protected by
the Supreme Court's holding in Briscoe v. Lahue,
wherein it emphasized that testifying government officials -
like police officers and prosecutors - were protected from
section 1983 liability based on their witness testimony. 460
U.S. 325, 342-343 (1983) (“Subjecting government
officials, such as police officers, to damages liability
under § 1983 for their testimony might undermine not
only their contribution to the judicial process but also the
effective performance of their other public duties.”).
court notes that the caption of the complaint indicates the
existence of other defendants, namely “John Does
1-100”, but there are no explicit allegations against
any Doe defendants in the body of the complaint.
Leave to Amend
plaintiff's second complaint and he is no closer to
identifying a cognizable claim upon which this action might
proceed. Indeed, the only defendant explicitly mentioned in
the amended complaint is, as noted above, immune from suit
under section 1983. Accordingly, the court finds that
granting further leave to amend would be futile. Plumeau
v. School Dist. # 40, 130 F.3d 432, 439 (9th Cir. 1997)
(denial of leave to amend appropriate where further amendment
would be futile).