United States District Court, C.D. California
Present: The Honorable Steve Kim, U.S. Magistrate Judge
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER TO SHOW CAUSE
a California state prisoner, filed a complaint under 42
U.S.C. § 1983, alleging that numerous probation
officers, police detectives, deputy sheriffs, and
municipalities violated his constitutional rights in at least
10 incidents since 2015. (Compl., ECF 1 at 1-11). But because
Plaintiff requests to proceed in forma pauperis, the Court
must screen his complaint to “identify cognizable
claims” and dismiss those that are “frivolous,
malicious, or 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(a), (b)(1)-(2) (2018). As currently pled,
Plaintiff's discursive complaint does not survive these
begin with, Plaintiff challenges a 2015 arrest for unlawful
possession of a firearm and ammunition. (Compl. at 3-8). He
claims that the involved defendants maliciously prosecuted
him. But that is a tort claim under California state law, so
it is not actionable under § 1983. See Usher v. City
of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even
if it were actionable, Plaintiff cannot state a claim for
malicious prosecution. To do that, he must allege first and
foremost that the underlying action “was pursued to a
legal termination in [his] favor.” Mills v. City of
Covina, 921 F.3d 1161, 1169 (9th Cir. 2019). But
Plaintiff admits that he pled guilty to the charges against
him (Compl. at 7), so he cannot demonstrate a favorable
termination of the underlying case. Moreover, if
Plaintiff's complaint about the 2015 arrest is intended
to attack his conviction from that arrest, it is barred by
Heck v. Humphrey, 512 U.S. 477 (1994). Civil rights
actions that amount to a collateral attack on the legality of
a state conviction and sentence cannot be raised under §
1983. See Id. at 486-87. And even if they were not
Heck-barred, Plaintiff's claims would be
time-barred because they arise from events between September
2015 and January 2016. (Compl. at 6, 7). Plaintiff had to
bring his suit based on these events within two years.
See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.
2004) (section 1983 suit in California federal court has
two-year statute of limitations); Stavropoulos v.
Superior Court, 45 Cal.Rptr.3d 705, 706 (Ct. App. 2006)
(“[M]alicious prosecution actions are subject to a
two-year statute of limitations.”).
claims arising from events in 2017 fare no better. (Compl. at
10-11). He contends that after he pled guilty to a
misdemeanor, he was incarcerated 16 days past his sentence.
(Id.). But “[c]onfinement beyond the end of an
inmate's sentence only gives rise to § 1983
liability if the inmate's continued detention was the
result of ‘deliberate indifference' by state
actors.” Barnacascel v. Montana, Dep't of
Corr., 103 Fed. App'x 195, 196 (9th Cir. 2004)
(citing Haygood v. Younger, 769 F.2d 1350, 1354 (9th
Cir. 1985) (en banc)). Plaintiff has alleged no facts meeting
that deliberate indifference standard. See Farmer v.
Brennan, 511 U.S. 825, 847 (1994). Nor has he alleged
facts plausibly showing that he was denied due process.
See Haygood, 769 F.2d at 1355-59. Conclusory
assertions like those in the complaint do not suffice.
See Fed. R. Civ. P. 8(a)(2). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
third set of allegations stems from a congeries of encounters
in 2019 with unidentified law enforcement officers. (Compl.
at 8, 10). He asserts that various Doe defendants seized or
searched him without probable cause or reasonable suspicion
at random locations like a drug store, a car wash, or on the
street. (Id.). He also claims that other Doe
defendants used excessive force. (Id. at 10). But
“not all personal intercourse between policemen and
citizens involves ‘seizures' of persons.”
Terry v. Ohio, 392 U.S. 1, 20 (1968). And
probationers like Plaintiff have diminished expectations of
privacy against searches. See United States v. Lara,
815 F.3d 605, 610 (9th Cir. 2016). As for excessive force,
“[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates
the Fourth Amendment.” Graham v. Connor, 490
U.S. 386, 396 (1989). In short, much more than what Plaintiff
has alleged based on these scattershot incidents in 2019 is
needed to state a plausible claim under Rule 8.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
fourth group of claims relates to his current conditions of
confinement. (Compl. at 9). But none of these appear
administratively exhausted as required by the Prison
Litigation Reform Act (“PLRA”). The PLRA requires
that a state prisoner seeking relief for alleged civil rights
violations during confinement exhaust all prison
administrative remedies before filing a federal lawsuit.
See 42 U.S.C. § 1997e(a) (2018). In California,
an inmate must complete three levels of formal review to
exhaust a complaint. See 15 Cal. Code Reg. §
3084.7 (2011). An appeal is not exhausted until a prisoner
has completed the third level of review. See id.
§ 3084.1(b). So Plaintiff's grievances about
inadequate medical treatment, inadequate nutrition,
misclassification as a level five inmate, and denial of
prison library access cannot be entertained in federal court
until after Plaintiff has exhausted his state prison remedies
first. See Ross v. Blake, 136 S.Ct. 1850, 1859-60
(2016); Jones v. Bock, 549 U.S. 199, 211 (2007).
Even then, as discussed below, Plaintiff must comply with the
joinder requirements of Rule 20(a)(2) by not commingling in a
single complaint different events, legal claims, and state
actors that should be raised in separate actions.
Plaintiff's claims against municipalities-and his
official-capacity claims against employees of those
municipalities-are too conclusory to state actionable claims.
An “official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity”
and “not a suit against the official personally.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985). And to
sue a municipality properly, Plaintiff must allege:
“(1) that he possessed a constitutional right of which
he was deprived; (2) that the municipality had a policy; (3)
that this policy ‘amounts to deliberate
indifference' to the plaintiff's constitutional
right; and (4) that the policy is the ‘moving force
behind the constitutional violation.'” Oviatt
ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992) (quoting City of Canton v. Harris, 489 U.S.
378, 389-91 (1989)). If he believes that the municipalities
had unlawful practices, Plaintiff must still allege facts
that plausibly suggest a widespread practice “so
permanent and well settled as to constitute a ‘custom
or usage' with the force of law.” City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
“Liability for improper custom may not be predicated on
isolated or sporadic incidents; it must be founded upon
practices of sufficient duration, frequency and consistency
that the conduct has become a traditional method of carrying
out policy.” Trevino v. Gates, 99 F.3d 911,
918 (9th Cir. 1996).
Plaintiff has alleged no non-conclusory facts that plausibly
suggest such a widespread custom and practice by the
municipalities. At most, Plaintiff has alleged discrete and
isolated incidents of misconduct by their employees, but
there is no respondeat superior liability for municipalities
under § 1983. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978) (“[A] local
government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.”).
Furthermore, “[l]iability under section 1983 arises
only upon a showing of personal participation by the
defendant.” Taylor v. List, 880 F.2d 1040,
1045 (9th Cir. 1989). Yet Plaintiff alleges no facts
plausibly showing that any municipality supervisors
personally participated in any alleged constitutional
deprivation. They may not be held liable just because they
are the titular heads of certain departments, unless there is
“a sufficient causal connection between the
supervisor's wrongful conduct and the constitutional
violation.” Hansen v. Black, 885 F.2d 642, 646
(9th Cir. 1989). Just alleging that they employed other
individually named defendants within a department-and then
merely asserting without plausible facts that they were
complicit in their subordinates' conduct-is not enough to
impose supervisory liability. See Starr v. Baca, 652
F.3d 1202, 1207 (9th Cir. 2011).
* * * *
* * * * *
these reasons, Plaintiff is ORDERED TO SHOW CAUSE on or
before October 16, 2019, why his in
forma pauperis application should not be denied and this
action dismissed because of the legal and factual
deficiencies outlined above. If Plaintiff cannot cure these
deficiencies, he may voluntarily dismiss this action without
prejudice using the attached form CV-09. See Fed. R.
Civ. P. 41(a). Prisoner complaints dismissed voluntarily do
not count as strikes under 28 U.S.C. § 1915(g), which
caps the number of federal civil rights lawsuits prisoners
may file in their lifetime without prepayment of filing fees.
Plaintiff may file an amended complaint that not only cures
all these deficiencies and meets the pleading requirements of
Rules 8 and 12(b)(6), but that also satisfies the strict
joinder requirements of Rule 20(a)(2). Multiple claims based
on disparate legal theories against numerous defendants
arising from unrelated events without common questions of law
or fact may not be combined in one complaint. See
Fed. R. Civ. P. 20(a)(2); George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007). They must be raised in separate
lawsuits. Here, Plaintiff has improperly joined at least four
to five, if not more, discrete incidents that must be brought
in separate actions if he wants to pursue all of them in
REQUIRED: If Plaintiff does not file either a notice of
voluntary dismissal, an amended complaint, or other timely
response to this order by October 16, 2019, this
action may be involuntarily dismissed for lack of
prosecution.See Fed. R. Civ. P. 41(b);
L.R. 41-1. In addition, if court mail directed to
Plaintiff's address of record is returned undeliverable
and Plaintiff fails to notify the Court in writing within 15
days of his ...