1 2 3 4 5 8 9 CHARLES DAVIS, 1:19-cv-01204-DAD-EPG (PC)
10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 v. RECOMMENDING THAT THIS CASE BE DISMISSED FOR FAILURE TO STATE A 12 HANFORD POLICE DEPARTMENT, et al., CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY WITH A COURT 13 Defendants. ORDER
(ECF Nos. 1, 7) 14
TWENTY-ONE DAY DEADLINE 15
16 Plaintiff, Charles Davis, is proceeding pro se in this civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff initiated this action on September 3, 2019, by filing a complaint (ECF 18 No. 1). In his complaint, Plaintiff alleges that Defendants, the Hanford Police Department and the 19 Department of Adult Parole Operations, violated Plaintiff’s constitutional rights when they 20 arrested him in retaliation for Plaintiff’s filing of a previous lawsuit. 21 On January 2, 2020, the Court screened the Complaint and found that it fails to state a 22 cognizable claim against Defendants. (ECF No. 7). The Court gave Plaintiff thirty days from the 23 date of service of the screening order to file an amended complaint or to notify the Court that he 24 wishes to stand on the Complaint, subject to findings and recommendations to the district judge 25 consistent with the screening order. (Id.) The Court also warned Plaintiff that failure to file an 26 amended complaint or to notify the Court that he wishes to stand on the Complaint could result in 27 the dismissal of this case. (Id. at 9.) The thirty-day period has expired, and Plaintiff has not filed 28 1 an amended complaint or notified the Court that he wishes to stand on the Complaint. 2 For the reasons discussed below, the Court recommends that the case be dismissed with 3 prejudice for failure to state a claim, failure to comply with a court order, and failure to prosecute. 5 Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma 6 pauperis, the Court must conduct a review of the complaint to determine whether it “state[s] a 7 claim on which relief may be granted,” is “frivolous or malicious,” or “seek[s] monetary relief 8 against a defendant who is immune from such relief.” If the Court determines that the complaint 9 fails to state a claim, it must be dismissed. Id. An action is frivolous if it is “of little weight or 10 importance: having no basis in law or fact” and malicious if it was filed with the “intention or 11 desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Leave to amend 12 may be granted to the extent that the deficiencies of the complaint can be cured by amendment. 13 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 14 A complaint must contain “a short and plain statement of the claim showing that the 15 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 19 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 663 20 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 21 conclusions are not. Id. at 678. 22 In determining whether a complaint states an actionable claim, the Court must accept the 23 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 24 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. 25 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, Jenkins 26 v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less 27 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 28 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after 1 Iqbal). 3 Plaintiff brings claims against the Hanford Police Department (“Hanford PD”) and the 4 Department of Adult Parole Operations, Hanford, CA (“DAPO”). Plaintiff also brought a prior 5 civil action, filed on August 21, 2019 (the “prior civil action”) against Defendant DAPO and two 6 other individuals. See Davis v. Mendoza, Case No. 1:19-cv-01142 (E.D. Cal. 2019). At the time 7 Plaintiff filed the prior civil action, he was incarcerated in the Kings County Jail. 8 Plaintiff alleges that after he filed the prior civil action, he was released from custody, and 9 that five days after being released, Defendants (DAPO and the Hanford PD) retaliated against him 10 by falsely arresting him for trespass and resisting arrest. Plaintiff appears to allege that the 11 property on which he is charged with trespassing is the property that bears his address of record 12 and that he thus could not have been trespassing on the property; and that the officer who arrested 13 Plaintiff was behind him, and because Plaintiff cannot hear and can only lip read, he could not 14 have heard or understood the officer’s commands or read the officer’s lips and thus could not 15 have been resisting arrest. Plaintiff alleges that he suffered abrasions and bruises during the 16 incident, that he is very afraid, that he suffers from disabilities under the Americans with 17 Disabilities Act (“ADA”) and is under chronic care, and that he is a mental health patient who 18 suffers from post-traumatic stress disorder (“PTSD”). Plaintiff also alleges that he has initiated an 19 internal investigation into the circumstances surrounding his arrest. 20 III. SECTION 1983 21 The Civil Rights Act under which this action was filed provides: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 23 subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, 24 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 25 proceeding for redress.... 26 42 U.S.C. § 1983. 27 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 28 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 1 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 2 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 3 1059, 1068 (9th Cir. 2012); Crowley v.
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1 2 3 4 5 8 9 CHARLES DAVIS, 1:19-cv-01204-DAD-EPG (PC)
10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 v. RECOMMENDING THAT THIS CASE BE DISMISSED FOR FAILURE TO STATE A 12 HANFORD POLICE DEPARTMENT, et al., CLAIM, FAILURE TO PROSECUTE, AND FAILURE TO COMPLY WITH A COURT 13 Defendants. ORDER
(ECF Nos. 1, 7) 14
TWENTY-ONE DAY DEADLINE 15
16 Plaintiff, Charles Davis, is proceeding pro se in this civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff initiated this action on September 3, 2019, by filing a complaint (ECF 18 No. 1). In his complaint, Plaintiff alleges that Defendants, the Hanford Police Department and the 19 Department of Adult Parole Operations, violated Plaintiff’s constitutional rights when they 20 arrested him in retaliation for Plaintiff’s filing of a previous lawsuit. 21 On January 2, 2020, the Court screened the Complaint and found that it fails to state a 22 cognizable claim against Defendants. (ECF No. 7). The Court gave Plaintiff thirty days from the 23 date of service of the screening order to file an amended complaint or to notify the Court that he 24 wishes to stand on the Complaint, subject to findings and recommendations to the district judge 25 consistent with the screening order. (Id.) The Court also warned Plaintiff that failure to file an 26 amended complaint or to notify the Court that he wishes to stand on the Complaint could result in 27 the dismissal of this case. (Id. at 9.) The thirty-day period has expired, and Plaintiff has not filed 28 1 an amended complaint or notified the Court that he wishes to stand on the Complaint. 2 For the reasons discussed below, the Court recommends that the case be dismissed with 3 prejudice for failure to state a claim, failure to comply with a court order, and failure to prosecute. 5 Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma 6 pauperis, the Court must conduct a review of the complaint to determine whether it “state[s] a 7 claim on which relief may be granted,” is “frivolous or malicious,” or “seek[s] monetary relief 8 against a defendant who is immune from such relief.” If the Court determines that the complaint 9 fails to state a claim, it must be dismissed. Id. An action is frivolous if it is “of little weight or 10 importance: having no basis in law or fact” and malicious if it was filed with the “intention or 11 desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Leave to amend 12 may be granted to the extent that the deficiencies of the complaint can be cured by amendment. 13 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 14 A complaint must contain “a short and plain statement of the claim showing that the 15 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 19 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 663 20 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 21 conclusions are not. Id. at 678. 22 In determining whether a complaint states an actionable claim, the Court must accept the 23 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 24 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. 25 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, Jenkins 26 v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less 27 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 28 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after 1 Iqbal). 3 Plaintiff brings claims against the Hanford Police Department (“Hanford PD”) and the 4 Department of Adult Parole Operations, Hanford, CA (“DAPO”). Plaintiff also brought a prior 5 civil action, filed on August 21, 2019 (the “prior civil action”) against Defendant DAPO and two 6 other individuals. See Davis v. Mendoza, Case No. 1:19-cv-01142 (E.D. Cal. 2019). At the time 7 Plaintiff filed the prior civil action, he was incarcerated in the Kings County Jail. 8 Plaintiff alleges that after he filed the prior civil action, he was released from custody, and 9 that five days after being released, Defendants (DAPO and the Hanford PD) retaliated against him 10 by falsely arresting him for trespass and resisting arrest. Plaintiff appears to allege that the 11 property on which he is charged with trespassing is the property that bears his address of record 12 and that he thus could not have been trespassing on the property; and that the officer who arrested 13 Plaintiff was behind him, and because Plaintiff cannot hear and can only lip read, he could not 14 have heard or understood the officer’s commands or read the officer’s lips and thus could not 15 have been resisting arrest. Plaintiff alleges that he suffered abrasions and bruises during the 16 incident, that he is very afraid, that he suffers from disabilities under the Americans with 17 Disabilities Act (“ADA”) and is under chronic care, and that he is a mental health patient who 18 suffers from post-traumatic stress disorder (“PTSD”). Plaintiff also alleges that he has initiated an 19 internal investigation into the circumstances surrounding his arrest. 20 III. SECTION 1983 21 The Civil Rights Act under which this action was filed provides: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 23 subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, 24 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 25 proceeding for redress.... 26 42 U.S.C. § 1983. 27 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 28 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 1 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 2 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 3 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 4 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 5 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 6 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 7 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 8 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 9 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 10 does an affirmative act, participates in another’s affirmative act, or omits to perform an act which 11 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 12 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 14 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 15 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 16 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 17 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 18 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 19 2008). 20 A plaintiff must demonstrate that each named defendant personally participated in the 21 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 22 connection or link between the actions of the defendants and the deprivation alleged to have been 23 suffered by the plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 695 24 (1978). 25 “Local governing bodies… can be sued directly under § 1983 for monetary, declaratory, 26 or injunctive relief where… the action that is alleged to be unconstitutional implements or 27 executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated 28 by that body’s officers.” Monell, 436 U.S. at 690 (footnote omitted). 1 “Plaintiffs who seek to impose liability on local governments under § 1983 must prove 2 that action pursuant to official municipal policy caused their injury. Official municipal policy 3 includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and 4 practices so persistent and widespread as to practically have the force of law. These are action[s] 5 for which the municipality is actually responsible.” Connick v. Thompson, 563 U.S. 51, 60–61 6 (2011) (internal citations and quotations omitted) (alteration in original). 8 “[A]s a general matter the First Amendment prohibits government officials from 9 subjecting an individual to retaliatory actions” for engaging in protected speech. Hartman v. 10 Moore, 547 U.S. 250, 256 (2006). “If an official takes adverse action against someone based on 11 that forbidden motive, and ‘non-retaliatory grounds are in fact insufficient to provoke the adverse 12 consequences,’ the injured person may generally seek relief by bringing a First Amendment 13 claim.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (citations omitted). 14 To prevail on a claim for retaliation, “a plaintiff must establish a ‘causal connection’ 15 between the government defendant’s ‘retaliatory animus’ and the plaintiff's ‘subsequent injury.’” 16 Id. (citing Hartman, 547 U.S. at 259). “It is not enough to show that an official acted with a 17 retaliatory motive and that the plaintiff was injured—the motive must cause the injury. 18 Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff 19 would not have been taken absent the retaliatory motive.” Id. (citing Hartman, 547 U.S. at 260 20 (recognizing that although it “may be dishonorable to act with an unconstitutional motive,” an 21 official’s “action colored by some degree of bad motive does not amount to a constitutional tort if 22 that action would have been taken anyway”)); see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 23 274, 283-285 (1977) (Even if a teacher’s protected conduct “played a part, substantial or 24 otherwise, in [the] decision not to rehire” him, the teacher was not entitled to reinstatement “if the 25 same decision would have been reached” absent his protected speech.). 26 “The plaintiff bringing a retaliatory arrest claim must plead and prove the absence of 27 probable cause for the arrest.” Nieves, 139 S. Ct. at 1724. “Absent such a showing, a retaliatory 28 arrest claim fails.” Id. “But if the plaintiff establishes the absence of probable cause, ‘then the Mt. 1 Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating 2 factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing 3 that the [arrest] would have been initiated without respect to retaliation.” Id. (citations omitted). 4 Here, Plaintiff alleges that he was arrested for trespass and resisting arrest in retaliation for 5 his filing of a prior civil rights lawsuit.1 Plaintiff’s filing of a lawsuit is conduct protected by the 6 First Amendment. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985). 7 Plaintiff has also alleged facts which, construed in the light most favorable to him, 8 indicate that there may have been a lack of probable cause to arrest him. Specifically, Plaintiff’s 9 allegations indicate that the property on which he was charged with trespassing is his address of 10 record. Plaintiff’s allegations also indicate that the arresting officer knew that Plaintiff could not 11 hear the officer and that Plaintiff was thus not intentionally disobeying that officer’s commands. 12 However, Plaintiff has not alleged facts demonstrating who the officer is that arrested him, how 13 the officer is connected with the prior lawsuit, how the arresting officer is connected to 14 Defendants, how Defendants are connected with the allegedly wrongful arrest, or any other 15 factual allegations demonstrating that Defendants’ retaliatory motive was a substantial or 16 motivating factor for the arrest of Plaintiff. Accordingly, Plaintiff has failed to state a cognizable 17 claim against Defendants.2 19 “In determining whether to dismiss [an action] for failure to prosecute or failure to comply 20 with a court order, the Court must weigh the following factors: (1) the public’s interest in 21 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 22 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 23 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 24 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 25 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” Id. 26
27 1 Plaintiff has also marked the excessive force box in his complaint, and alleged that he suffered “a lot of abrasions a lot of bruises” during the allegedly retaliatory arrest. 28 2 If Plaintiff has been convicted of offenses in relation to his arrest, his claim may also be barred under Heck v. 1 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Thus, this factor 2 weighs in favor of dismissal. 3 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 4 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, “delay 5 inherently increases the risk that witnesses’ memories will fade and evidence will become stale,” 6 id. at 643, and it is Plaintiff’s failure to file an amended complaint or to notify the Court that he 7 wishes to stand on the Complaint that is causing delay. The case is now stalled until Plaintiff files 8 an amended complaint or notifies the Court that he wishes to stand on the Complaint. Therefore, 9 the third factor weighs in favor of dismissal. 10 As for the availability of lesser sanctions, at this stage in the proceedings there is little 11 available to the Court that would constitute a satisfactory lesser sanction while protecting the 12 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 13 little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage of 14 these proceedings, the preclusion of evidence or witnesses is not available. 15 Finally, because public policy favors disposition on the merits, this factor weighs against 16 dismissal. Id. 17 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 19 The Court screened Plaintiff’s complaint and recommends finding that it fails to state a 20 claim under the relevant legal standards. Furthermore, Plaintiff has failed to comply with the 21 screening order, which directed Plaintiff to file an amended complaint or notify the Court that he 22 wishes to stand on the Complaint. Plaintiff has failed to timely file an amended complaint and has 23 not otherwise prosecuted this action. 24 Accordingly, the Court HEREBY RECOMMENDS that: 25 1. Pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), this action be DISMISSED, with 26 prejudice, based on Plaintiff’s failure to state a claim upon which relief may be granted under § 27 1983,3 failure to comply with a Court order, and failure to prosecute; and 28 1 2. The Clerk of Court be directed to close this case. 2 These findings and recommendations are submitted to the district judge assigned to the 3 || case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one days after being 4 | served with these findings and recommendations, Plaintiff may file written objections with the 5 | court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 6 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 7 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 8 | 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 | Dated: _ February 10, 2020 [sf ey 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § 1915(g). Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015).