United States District Court, E.D. California
SCREENING ORDER SECOND AMENDED COMPLAINT DUE IN
THIRTY DAYS ECF NO. 13 ORDER DENYING MISCELLANEOUS MOTIONS
ECF NOS. 6, 8, AND 9 ORDER GRANTING PLAINTIFF'S MOTION
FOR A COPY OF THE DOCKET ECF NO. 12
Devon Dante Harris is a pre-trial detainee proceeding without
counsel in this civil rights action brought under 42 U.S.C.
§ 1983. Plaintiff's first amended complaint, filed
September 6, 2019, is before the court for screening under 28
U.S.C. § 1915A. Harris claims that numerous individuals
engaged in a conspiracy to deprive him of his identity,
property, and other rights. See ECF No. 13 at 6.
Plaintiff also accuses his public defender of legal
malpractice, id. at 9; accuses the Kern County
district attorney of maliciously prosecuting him,
id. at 10; and accuses the Kern County sheriff's
department of violating his right to equal protection by
failing to protect him from the conspiracy, id. at
11. I have screened plaintiff's complaint and find that
it fails to state a claim. Plaintiff may file an amended
complaint within thirty days.
SCREENING AND PLEADING REQUIREMENTS
district court is required to screen a prisoner's
complaint that seeks relief against a governmental entity,
officers, or employees. See 28 U.S.C. §
1915A(a). The court must identify any cognizable claims and
dismiss any portion of the complaint that is frivolous or
malicious, that fails to state a claim upon which relief may
be granted, or that seeks monetary relief from a defendant
who is immune from such relief. See 28 U.S.C.
§§ 1915A(b)(1), (2). The court must construe an
unrepresented litigant's complaint liberally. Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
complaint must contain a short and plain statement that
plaintiff is entitled to relief, Fed.R.Civ.P. 8(a)(2), and
provide “enough facts to state a claim to relief that
is plausible on its face, ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The short and plain
statement “need only give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Twombly, 550 U.S. at 555 (internal
quotation marks omitted)). The complaint need not identify
“a precise legal theory.” Kobold v. Good
Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1038 (9th
Cir. 2016) (quoting Skinner v. Switzer, 562 U.S.
521, 530 (2011)). The plausibility standard does not require
detailed allegations, but legal conclusions do not suffice.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If
the allegations “do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint states no claim. Id. at 679.
1983 allows a private citizen to sue for the deprivation of a
right secured by federal law. See 42 U.S.C. §
1983; Manuel v. City of Joliet, Ill., 137 S.Ct. 911,
916 (2017). To state a claim under 42 U.S.C. § 1983, a
plaintiff must (1) allege the deprivation of a right secured
by the U.S. Constitution and laws of the United States, and
(2) show that the alleged deprivation was committed by a
person acting under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988). A defendant has acted
under color of state law where he or she has “exercised
power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.” Id. at 49 (1988) (internal quotation
marks and citation omitted). Such a person deprives another
of a constitutional right, “within the meaning of
§ 1983, ‘if he does an affirmative act,
participates in another's affirmative act, or omits to
perform an act which he is legally required to do that causes
the deprivation of which complaint is made.'”
Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479
F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v.
Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
first amended complaint does not state a claim under 42
U.S.C. § 1983. Almost all of the individuals or
government institutions mentioned in the complaint do not
appear to be acting under color of state law; instead, they
seem to be private individuals who-for example- stole from
plaintiff or provided him with legal defense. While the
behavior of such individuals may run afoul of the law and may
entitle plaintiff to some form of legal relief, it cannot,
without more, serve as the basis for a § 1983 claim.
two of the defendants appear to have acted under color of
state law. First, plaintiff alleges that his rights were
violated by the Kern County District Attorney's Office.
But, while this institution or its officers may indeed have
acted under color of state law, plaintiff has not alleged any
facts that would amount to a violation of a federal right.
Plaintiff states only that the district attorneys
“fraudulently and maliciously decided to
prosecute” him despite his alleged innocence, ECF No.
13 at 10.
only federal claim that plaintiff is attempting to
raise is an equal protection claim against the second
defendant that may have acted under color of state law: the
Kern County Sheriff's Department. Plaintiff alleges that
the sheriff's department “routinely ignored and
failed to investigate numerous reports” from plaintiff
in violation of his right to equal protection. Id.
at 11. But this vague allegation is insufficient to state an
equal protection claim, which requires “that the
defendants acted with an intent or purpose to discriminate
against the plaintiff based upon membership in a protected
class.” Furnace v. Sullivan, 705 F.3d 1021,
1030 (9th Cir. 2013). Plaintiff has made no allegation of
discriminatory intent or discrimination based on membership
in a protected class-such as, for example, his racial group
or religious affiliation.
screened plaintiff's complaint and find that it fails to
state a cognizable claim against any defendant. Plaintiff may
file an amended complaint if he wishes to proceed with this
suit. As explained below, such an amended complaint would
need to allege what each defendant did and why each
defendant's actions violated plaintiff's
constitutional rights. If plaintiff fails to amend his
complaint within thirty days, we will recommend that the
court dismiss plaintiff's complaint for the reasons
stated in this order.
plaintiff choose to amend the complaint, the amended
complaint should be brief, Fed.R.Civ.P. 8(a), but must state
what each named defendant did that led to the deprivation of
plaintiff's constitutional or other federal rights.
See Iqbal, 556 U.S. at 678; Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff
must set forth “sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). The defendants must have
“exercised power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law.” West, 487 U.S. at 48.
Each defendant is only liable for his or her own misconduct,
not that of any employees. See Id. at 677. Plaintiff
must allege that each defendant personally participated in
the deprivation of his rights. Jones, 297 F.3d at
934 (emphasis added). A short, concise statement of the
allegations in chronological order will assist the court in
identifying his claims. Plaintiff should name each defendant
and explain what happened, describing personal acts by the
individual defendant that resulted in the violation of
plaintiff's rights. Plaintiff should also describe any
harm he suffered from the violation of his rights. Plaintiff
should not fundamentally alter his complaint or add unrelated
issues. See Fed. R. Civ. P. 18; George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007)
(“Unrelated claims against different defendants belong
in different suits . . . .”).
amended complaint will supersede the original complaint,
Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th
Cir. 2012) (en banc), and must be complete on its face
without reference to the prior, superseded pleading,
see E.D. Cal. Local Rule 220. Once an amended
complaint is filed, the original complaint no longer serves
any function in the case. Therefore, in an amended complaint,
each claim and the involvement of each defendant must be
sufficiently alleged. An amended complaint should be titled
“Second Amended Complaint, ” refer to the
appropriate case number, and be an original signed under
penalty of perjury.