United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se. This matter was
accordingly referred to the undersigned by E.D. Cal.
302(c)(21). Plaintiff has filed a request for leave to
proceed in forma pauperis (“IFP”), and has
submitted the affidavit required by that statute.
See 28 U.S.C. § 1915(a)(1). The motion to
proceed IFP (ECF No. 2) will therefore be granted.
federal IFP statute requires federal courts to dismiss a case
if the action is legally “frivolous or malicious,
” fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2). A claim
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). In reviewing a complaint under this
standard, the court will (1) accept as true all of the
factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those
allegations in the light most favorable to the plaintiff, and
(3) resolve all doubts in the plaintiff's favor. See
Neitzke, 490 U.S. at 327; Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir.
2010), cert. denied, 564 U.S. 1037 (2011).
court applies the same rules of construction in determining
whether the complaint states a claim on which relief can be
granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(court must accept the allegations as true); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (court must construe
the complaint in the light most favorable to the plaintiff).
Pro se pleadings are held to a less stringent standard than
those drafted by lawyers. Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the court need not accept as true
conclusory allegations, unreasonable inferences, or
unwarranted deductions of fact. Western Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic
recitation of the elements of a cause of action does not
suffice to state a claim. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
state a claim on which relief may be granted, the plaintiff
must allege enough facts “to state a claim to relief
that is plausible on its face.” Twombly, 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.” Iqbal, 556 U.S.
at 678. A pro se litigant is entitled to notice of the
deficiencies in the complaint and an opportunity to amend,
unless the complaint's deficiencies could not be cured by
amendment. See Noll v. Carlson, 809 F.2d 1446, 1448
(9th Cir. 1987), superseded on other grounds by statute as
stated in Lopez v. Smith, 203 F.3d 1122 (9th
Cir.2000)) (en banc).
brings suit against Officer B. Brandon of the CHP Bicycle
Patrol Unit, as well as the unnamed “Accomplice”
and “Public Official” who provided backup to
Officer Brandon at the time of the alleged incident. ECF No.
1 at 4. Plaintiff brings claims pursuant to 42 U.S.C. §
1983, stating that he was “deprived of my right to
freedom of movement, deprived of my right to enjoy liberty
and deprived of my right of private property, which
contributed to my peace, deprived of my right to
protest.” Id. at 3. Based on the contents of
the complaint, the court construes these claims as (1)
unlawful stop in violation of the Fourth Amendment; (2)
unlawful seizure in violation of the Fourth Amendment; and
(3) unlawful deprivation of the right to free speech in
violation of the First Amendment.
alleges that, when he was stopped at a traffic light, Officer
Brandon rode his bicycle in front of plaintiff's vehicle
and instructed plaintiff to pull over to the side of the
road. ECF No. 1 at 4. Plaintiff asked the Officer if he had
broken a law, and the Officer replied “yes” and
explained that a tag on his vehicle looked suspicious.
Id. The Officer asked plaintiff to present his
license, to which plaintiff replied, “I never applied
for permission to commit a licentious act. I am only
traveling and I am not for hire. This is my private
property.” Id. When the Officer asked
plaintiff to identify himself, plaintiff replied that he is a
civilian. Id. Plaintiff asked if anyone was injured
or if there were any reports fitting his description or
stating that plaintiff was connected to anything missing, and
the Officer said no. Id. Plaintiff asked if he was
under arrest and the Officer replied “technically,
Yes.” Plaintiff was commanded to give his keys to
Officer Brandon, and the Officer and “his
Accomplice” began searching the vehicle. Id.
Another “Public Official” arrived in a motor
vehicle behind Plaintiff. Id. Bystanders began
filming. Id. The search did not reveal any illegal
contraband, but Officer Brandon seized plaintiff's
vehicle. Id. at 5. Plaintiff told Officer Brandon
“I do not consent to this behavior” but his
“protest was ignored.” Plaintiff was allowed only
to take what he could carry from the vehicle before it was
towed. Id. Plaintiff asserts that the stop and
seizure were improper because he was not engaged in commerce,
he was not for hire, and he was “enjoying my right to
exercise use of consumer goods, as I am more than able to do
as a Freeman on the American Continental soil, and not to be
treated as if I were a STATUTORY CITIZEN and definitely NOT a
BLACK PERSON or MILITARY PERSONNEL.” Id.
complaint must be dismissed because it fails to, and cannot,
state a claim upon which relief may be granted. As to
plaintiff's claim of unlawful seizure of his vehicle, the
complaint itself makes clear that the seizure and impoundment
was proper. The Fourth Amendment, which applies to the states
through the Fourteenth Amendment, protects against
unreasonable searches and seizures by law enforcement
officers. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
“The impoundment of an automobile is a seizure within
the meaning of the Fourth Amendment.” Miranda v.
City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005).
However, the complaint alleges that the impoundment here
occurred after plaintiff acknowledged that he was driving
without a license. ECF No. 1 at 4. Taking the allegations as
true, the officer had the authority to cause the impoundment
of plaintiff's car. See Cal. Veh. Code §
14602.6(a)(1) (“Whenever a peace officer determines
that a person was driving a vehicle . . . without ever having
been issued a driver's license, . . . the peace officer
may . . . immediately arrest that person and cause the
removal and seizure of that vehicle . . . A vehicle so
impounded shall be impounded for 30 days.”). The fact
that plaintiff appears to believe that he did not need a
driver's license to drive a vehicle so long as he was not
engaging in commerce is irrelevant. There is no Fourth
Amendment violation here.
plaintiff's claim that he was unlawfully stopped, the
facts alleged do not support relief. Temporary detention of
individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose,
constitutes a “seizure” within the meaning of the
Fourth Amendment. See Delaware v. Prouse, 440 U.S.
648, 653 (1979). An automobile stop is thus subject to the
constitutional imperative that it not be
“unreasonable” under the circumstances. As a
general matter, the decision to stop an automobile is
reasonable where the police have probable cause or reasonable
suspicion to believe that a traffic violation has occurred.
See id. at 659; Pennsylvania v. Mimms, 434
U.S. 106, 109 (1977) (per curiam); Haynie v. County of
Los Angeles, 339 F.3d 1071, 1075 (9th Cir. 2003). Here,
plaintiff clearly states that the Officer identified a
problem with his license plate or vehicle registration (he
uses the word “tag”) as probable cause for
pulling him over. ECF No. 1 at 4.
as to plaintiff's claim that he was prevented from
“protesting, ” the facts alleged in the complaint
do not support a First Amendment claim. “The First
Amendment forbids government officials from retaliating
against individuals for speaking out.” Blair v.
Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010)
(citing Hartman v. Moore, 547 U.S. 250, 256 (2006)).
It also “protects a significant amount of verbal
criticism and challenge directed at police officers.”
City of Houston v. Hill, 482 U.S. 451, 461 (1987).
While an individual's critical comments may be
“provocative and challenging, ” they are
“nevertheless protected against censorship or
punishment, unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far
above public inconvenience, annoyance, or unrest.”
Id. (quoting Terminiello v. City of
Chicago, 337 U.S. 1, 4 (1949)). An individual has a
right “to be free from police action motivated by
retaliatory animus but for which there was probable
cause.” Skoog v. County of Clackamas, 469 F.3d
1221, 1235 (9th Cir. 2006). To recover for retaliation
brought on by the exercise of free speech under § 1983,
a plaintiff must prove: (1) he engaged in a constitutionally
protected activity; (2) as a result, he was subjected to an
adverse action by the defendant that would chill a person of
ordinary firmness from continuing to engage in the protected
activity; and (3) there was a substantial causal relationship
between the constitutionally protected activity and the
adverse action. Id.; see also Ford v. City of
Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (stating
that a plaintiff must be able “to prove the
officers' desire to chill [the plaintiff's] speech
was a but-for cause of their allegedly unlawful
case, plaintiff asserts that when he began to protest Officer
Brandon's stop, he was “warned by the ACCOMPLICE to
remain quiet with a ZIP IT SHUT gesture and smile.” ECF
No. 1 at 5. Plaintiff further states that he told Officer
Brandon “I do not consent to this behavior” but
his “protest was ignored.” Id.
Plaintiff's statement of the facts is clear, and it does
not support a First Amendment claim because there is no
indication that he was prevented from or punished in any way
for speaking. Indeed, beyond the assertion that the
Accomplice made a nonverbal gesture toward plaintiff, there
is no allegation ...