1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TAMMY S POWERS, Case No. 21-cv-06382-AGT
8 Plaintiff, SCREENING ORDER v. 9
10 SEAN LAYTON, et al., Defendants. 11
12 13 Having granted pro se plaintiff Tammy Powers’s application to proceed in forma pauperis, 14 see Dkt. 8, the undersigned magistrate judge now screens her complaint, pursuant to 28 U.S.C. 15 § 1915(e)(2)(B), and concludes that it is deficient. The Clerk of the Court is accordingly 16 instructed not to issue summonses or to serve Powers’s complaint on the defendants. If Powers 17 fails to file a satisfactory amendment, the undersigned will recommend that a district judge 18 dismiss her case.1 19 A. Complaint Allegations 20 On June 2, 2021, Powers was riding her motorcycle on Highway I-580 in Emeryville, 21 California, when she was rear-ended by a pickup truck and “sent to the pavement at 70 mph.” 22 Dkt. 1, Compl. at 4–5. Powers sustained a broken right thumb and she continues to experience 23 pain in her neck and back from the impact. Id. at 5. She alleges that the other driver was at fault 24 for the accident. Id. 25
26 1 Powers declined to consent to magistrate judge jurisdiction. See Dkt. 6. But that decision by her does not affect the undersigned’s ability to issue this screening order, which is not dispositive of 27 Powers’s claims. See 28 U.S.C. § 636(b)(1)(A); Mitchell v. Valenzuela, 791 F.3d 1166, 1168–69 1 Shortly after the accident, the California Highway Patrol (“CHP”) completed a traffic 2 collision report, authored by CHP Officer Sean Layton and signed and approved by CHP Officer 3 K. Yamaguchi, which concludes that Powers was at fault for the accident. Id. at 4. According to 4 Powers, the CHP’s collision report is inaccurate, speculative, omits all evidence in her favor, and 5 wrongfully concludes that she caused the collision. Id. Powers also claims that the other driver 6 “lied to a gullible California Highway Patrolman [] about doing the crime.” Id. at 5. She alleges 7 that as a result of the CHP’s “bogus” collision report, the other driver’s insurer has refused to pay 8 for her medical bills and treatment costs resulting from the accident, and she cannot afford to pay 9 for those expenses out-of-pocket. Id. 10 On July 12, 2021, Powers spoke on the phone with CHP Lieutenant Oliver about her 11 “disagreements” with the collision report. Id. at 4–5. Following that phone call, Powers filed this 12 42 U.S.C. § 1983 action against Officer Layton, Officer Yamaguchi, and Lieutenant Oliver, 13 alleging that they violated her due process rights “by writing and/or endorsing a completely 14 inaccurate and speculative collision report.” Id. at 3. Powers alleges that Officer Layton 15 “wrongfully conclude[ed] that [she] was at fault” and “chose to write a completely speculative and 16 nonsensical collision report”; that Officer Yamaguchi “signed his name endorsing [the] report”; 17 and that Lieutenant Oliver “has direct knowledge of [her] disagreements with the report” and “is 18 being named as respondeat superior.” Id. at 4–5. Powers seeks various forms of relief, including 19 $60,000,000 in compensatory and punitive damages and a court order requiring the CHP to 20 “reexamine the evidence of the collision.” Id. at 5. Powers also requests that the other driver “be 21 arrested, charged, and prosecuted for assult [sic] with a deadly weapon: motor vehicle, to the 22 fullest extent of the law.” Id. 23 B. Analysis 24 Powers is proceeding in forma pauperis, which means that she has been allowed to 25 commence her case without paying filing fees. The Court, in consequence, must screen and 26 dismiss her complaint if it “fails to state a claim on which relief may be granted.” 28 U.S.C. 27 § 1915(e)(2)(B)(ii); see Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000). “The 1 granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 2 standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 3 Thus, the complaint must include a “short and plain statement,” Fed. R. Civ. P. 8(a)(2), and 4 “sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face,’” 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 6 547 (2007)); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) 7 (“Dismissal [under Rule 12(b)(6)] can be based on the lack of a cognizable legal theory or the 8 absence of sufficient facts alleged under a cognizable legal theory.”). Powers’s allegations here 9 fall short of that standard. 10 As an initial matter, to the extent Powers seeks to assert a violation of her Fifth 11 Amendment due process rights, that claim fails as a matter of law.2 All three defendants are state 12 law enforcement officials employed by the CHP, and “the Fifth Amendment’s due process clause 13 only applies to the federal government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 14 2008); see Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment 15 prohibits the federal government from depriving persons of due process, while the Fourteenth 16 Amendment explicitly prohibits deprivations without due process by the several States.”). 17 Because none of the defendants are federal officials, Powers “has no cause of action under the 18 Fifth Amendment.” Bingue, 512 F.3d at 1174. 19 Powers has also failed to state a due process claim under the Fourteenth Amendment. The 20 Fourteenth Amendment protects individuals against the deprivation of liberty or property by the 21 government without due process. A § 1983 claim for violation of procedural due process has three 22 elements: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the 23 interest by the government; (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 24 904 (9th Cir. 1993); see also Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (“To 25 establish a substantive due process claim, a plaintiff must, as a threshold matter, show a 26 government deprivation of life, liberty, or property.”). To have a constitutionally protected 27 1 property interest, a plaintiff must have “a legitimate claim of entitlement.” Bd. of Regents of State 2 Colleges v. Roth, 408 U.S. 564
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TAMMY S POWERS, Case No. 21-cv-06382-AGT
8 Plaintiff, SCREENING ORDER v. 9
10 SEAN LAYTON, et al., Defendants. 11
12 13 Having granted pro se plaintiff Tammy Powers’s application to proceed in forma pauperis, 14 see Dkt. 8, the undersigned magistrate judge now screens her complaint, pursuant to 28 U.S.C. 15 § 1915(e)(2)(B), and concludes that it is deficient. The Clerk of the Court is accordingly 16 instructed not to issue summonses or to serve Powers’s complaint on the defendants. If Powers 17 fails to file a satisfactory amendment, the undersigned will recommend that a district judge 18 dismiss her case.1 19 A. Complaint Allegations 20 On June 2, 2021, Powers was riding her motorcycle on Highway I-580 in Emeryville, 21 California, when she was rear-ended by a pickup truck and “sent to the pavement at 70 mph.” 22 Dkt. 1, Compl. at 4–5. Powers sustained a broken right thumb and she continues to experience 23 pain in her neck and back from the impact. Id. at 5. She alleges that the other driver was at fault 24 for the accident. Id. 25
26 1 Powers declined to consent to magistrate judge jurisdiction. See Dkt. 6. But that decision by her does not affect the undersigned’s ability to issue this screening order, which is not dispositive of 27 Powers’s claims. See 28 U.S.C. § 636(b)(1)(A); Mitchell v. Valenzuela, 791 F.3d 1166, 1168–69 1 Shortly after the accident, the California Highway Patrol (“CHP”) completed a traffic 2 collision report, authored by CHP Officer Sean Layton and signed and approved by CHP Officer 3 K. Yamaguchi, which concludes that Powers was at fault for the accident. Id. at 4. According to 4 Powers, the CHP’s collision report is inaccurate, speculative, omits all evidence in her favor, and 5 wrongfully concludes that she caused the collision. Id. Powers also claims that the other driver 6 “lied to a gullible California Highway Patrolman [] about doing the crime.” Id. at 5. She alleges 7 that as a result of the CHP’s “bogus” collision report, the other driver’s insurer has refused to pay 8 for her medical bills and treatment costs resulting from the accident, and she cannot afford to pay 9 for those expenses out-of-pocket. Id. 10 On July 12, 2021, Powers spoke on the phone with CHP Lieutenant Oliver about her 11 “disagreements” with the collision report. Id. at 4–5. Following that phone call, Powers filed this 12 42 U.S.C. § 1983 action against Officer Layton, Officer Yamaguchi, and Lieutenant Oliver, 13 alleging that they violated her due process rights “by writing and/or endorsing a completely 14 inaccurate and speculative collision report.” Id. at 3. Powers alleges that Officer Layton 15 “wrongfully conclude[ed] that [she] was at fault” and “chose to write a completely speculative and 16 nonsensical collision report”; that Officer Yamaguchi “signed his name endorsing [the] report”; 17 and that Lieutenant Oliver “has direct knowledge of [her] disagreements with the report” and “is 18 being named as respondeat superior.” Id. at 4–5. Powers seeks various forms of relief, including 19 $60,000,000 in compensatory and punitive damages and a court order requiring the CHP to 20 “reexamine the evidence of the collision.” Id. at 5. Powers also requests that the other driver “be 21 arrested, charged, and prosecuted for assult [sic] with a deadly weapon: motor vehicle, to the 22 fullest extent of the law.” Id. 23 B. Analysis 24 Powers is proceeding in forma pauperis, which means that she has been allowed to 25 commence her case without paying filing fees. The Court, in consequence, must screen and 26 dismiss her complaint if it “fails to state a claim on which relief may be granted.” 28 U.S.C. 27 § 1915(e)(2)(B)(ii); see Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000). “The 1 granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 2 standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 3 Thus, the complaint must include a “short and plain statement,” Fed. R. Civ. P. 8(a)(2), and 4 “sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face,’” 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 6 547 (2007)); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) 7 (“Dismissal [under Rule 12(b)(6)] can be based on the lack of a cognizable legal theory or the 8 absence of sufficient facts alleged under a cognizable legal theory.”). Powers’s allegations here 9 fall short of that standard. 10 As an initial matter, to the extent Powers seeks to assert a violation of her Fifth 11 Amendment due process rights, that claim fails as a matter of law.2 All three defendants are state 12 law enforcement officials employed by the CHP, and “the Fifth Amendment’s due process clause 13 only applies to the federal government.” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 14 2008); see Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment 15 prohibits the federal government from depriving persons of due process, while the Fourteenth 16 Amendment explicitly prohibits deprivations without due process by the several States.”). 17 Because none of the defendants are federal officials, Powers “has no cause of action under the 18 Fifth Amendment.” Bingue, 512 F.3d at 1174. 19 Powers has also failed to state a due process claim under the Fourteenth Amendment. The 20 Fourteenth Amendment protects individuals against the deprivation of liberty or property by the 21 government without due process. A § 1983 claim for violation of procedural due process has three 22 elements: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the 23 interest by the government; (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 24 904 (9th Cir. 1993); see also Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (“To 25 establish a substantive due process claim, a plaintiff must, as a threshold matter, show a 26 government deprivation of life, liberty, or property.”). To have a constitutionally protected 27 1 property interest, a plaintiff must have “a legitimate claim of entitlement.” Bd. of Regents of State 2 Colleges v. Roth, 408 U.S. 564, 577 (1972). A liberty interest, on the other hand, “may be derived 3 from the Due Process Clause itself or from the laws of the states.” Browning v. Vernon, 44 F.3d 4 818, 821 (9th Cir. 1995). 5 Here, Powers has not identified any constitutionally protected property or liberty interest of 6 which she was deprived. In alleging violations of her due process rights, Powers asserts that she 7 has anxiety and nightmares about the accident, she is no longer able to work as a mechanic 8 because her right hand is permanently injured, and she continues to experience pain in her neck 9 and back—all injuries she appears to attribute to “defendants’ Due Process violating report that 10 wrongfully blamed [her] for this collision.” Compl. at 5. These injuries and losses, however, 11 resulted from Powers’s motorcycle accident, not the CHP’s collision report. Moreover, as other 12 courts have recognized, there is no constitutional right to an accurate or favorable accident report. 13 See, e.g., Chang v. Beauchamp, 2021 WL 667498, at *3 (N.D. Cal. Jan. 19, 2021) (“Plaintiff does 14 not have a constitutionally protected right to a favorable accident report or the outcome of CHP’s 15 internal investigation.”), aff’d, 2022 WL 576022 (9th Cir. Feb. 25, 2022); Mendoza v. United 16 States, 2017 WL 1198924, at *12 (S.D. Cal. Mar. 31, 2017 (recognizing the “non-existence of a 17 fundamental right to a correct traffic report, protected by the United States Constitution”); see also 18 Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (holding that allegations of an inadequate 19 investigation by law enforcement will not support a § 1983 due process claim). Thus, to the extent 20 Powers is attempting to state a due process claim based upon the CHP’s “speculative and 21 nonsensical collision report,” such a claim is not viable. 22 Powers’s conclusory allegations that Officer Layton “chose to describe evidence that 23 doesn’t exist” and “chose to hide evidence that does exist” are also insufficient to support a due 24 process claim. Even if these assertions were true, “the fact that a false, incomplete or fraudulent 25 police report has been filed is insufficient to state a § 1983 claim.” Bronner v. San Francisco 26 Superior Ct., 2010 WL 2650500, at *5 (N.D. Cal. July 1, 2010) (citation omitted). Rather, “there 27 must be some constitutional deprivation that flows from the report.” Id. Powers has not identified ] Although Powers may believe she is entitled to recover from the other driver’s insurer for the 2 || accident, her allegations fail to establish that she has a “legitimate claim of entitlement” to any 3 || payment that is being withheld. See Roth, 408 U.S. at 577. 4 Finally, the Court notes that there is no respondeat superior liability under § 1983. Taylor 5 vy. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see Iqbal, 556 US. at 676 (“Government officials 6 || may not be held liable for the unconstitutional conduct of their subordinates under a theory of 7 || respondeat superior.”). This means that Powers cannot sue Lieutenant Oliver under § 1983 8 simply because he is a supervisor; rather, she must allege facts showing that Lieutenant Oliver, 9 || “through [his] own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 662. 10 || Powers must also do the same for Officer Yamaguchi. Her allegation that Officer Yamaguchi 11 “knows the report exists, he checked it over and approved it” is far from enough to support a 12 || § 1983 claim against him. See Baker v. McCollan, 443 U.S. 137, 142 (1979) (“[A] public official E 13 is liable under § 1983 only ‘if he causes the plaintiff to be subjected to deprivation of his 14 || constitutional rights.’”) (citation omitted). 3 15 In sum, because Powers has failed to state a claim for relief against any of the defendants, 16 || her claims against them cannot move forward at this time. See 28 U.S.C. § 1915(e)(2)(B)(i1). i 17 C. Conclusion Z 18 Powers may file an amended complaint, by September 18, 2022, to correct the identified 19 || deficiencies. If she does not file an amended complaint by that date, or if her amended complaint 20 || is still deficient, the undersigned will recommend that a district judge dismiss this case. 21 Powers is encouraged to visit the Northern District of California’s website, where she can 22 || obtain information and resources about appearing pro se. See U.S. District Court, N.D. Cal., 23 Representing Yourself, https://cand.uscourts.gov/pro-se-litigants/. 24 IT IS SO ORDERED. 25 || Dated: August 19, 2022 26 27 ALEX G. TSE 28 United States Magistrate Judge