Redick v. Sonora Police Department

District Court, E.D. California·Decided May 14, 2021·No. 1:21-cv-00287·Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 STANLEY E. REDICK, III, Case No. 1:21-cv-00287-NONE-SAB

11 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE A SECOND 12 v. AMENDED COMPLAINT

13 SONORA POLICE DEPARTMENT, et al., (ECF No. 7)

14 Defendants. THIRTY (30) DAY DEADLINE

15 16 I. 17 INTRODUCTION 18 Stanley E. Redick, III (“Plaintiff”), proceeding pro se and in forma pauperis, filed this 19 action pursuant to 42 U.S.C. § 1983. Currently before the Court for screening is Plaintiff’s first 20 amended complaint, filed March 24, 2021. (ECF No. 7.)1 21 II. 22 INSTRUCTIONS FOR PRO SE PLAINTIFF 23 Plaintiff is proceeding pro se, meaning he is not represented by an attorney in this case. 24 Given Plaintiff is pro se, the Court will first provide a summary of the primary reasons Plaintiff’s 25 complaint is insufficient, and the instructions Plaintiff must follow if he decides to file a second 26 amended complaint.

27 1 While the docket reflects a filing date of March 24, 2021, the first amended complaint was not entered on the docket in this case until April 7, 2021, due to Plaintiff incorrectly filing the document in a different case that he has 1 A. The Court will not Accept Multiple Types of Attached Documents and Plaintiff must Clearly State the Facts and Claims against each Named 2 Defendant 3 When the Court reviewed Plaintiff’s original complaint, the Court took the time to 4 examine the various types of summaries and documents that Plaintiff submitted as part of, and 5 attached to the complaint, including: a document entitled “Grievance Letter,” a police narrative 6 report, a document entitled “Rebuttal to Sonora Police Department Narrative,” as well as three 7 separate summaries of claims directed at the three then named Defendants, the Sonora Police 8 Department, the Tuolumne County Jail, and the Tuolumne County District Attorney’s Office, 9 that were in large part identical, but differed slightly depending on the particular Defendant. 10 Plaintiff’s first amended complaint contains some of the same documents as the 11 previously filed complaint, as well as new attachments and summaries. However, rather than 12 putting forth a clear and simple statement of the facts and legal claims pertaining to each named 13 Defendant, in resubmitting the previous filings, Plaintiff has crossed words out, and added labels 14 such as Defendant # 1 and Defendant #2 to certain lines of the attachments and summaries. The 15 Court has read these documents and summaries, and while the Court must a pro se plaintiff’s 16 pleadings liberally, taken together, Plaintiff’s complaint does not comply with Federal Rules of 17 Civil Procedure of 8. The Rule requires Plaintiff to provide a short and plain statement of the 18 claim, meaning he must provide the Defendants notice of the factual basis for each legal claim 19 Plaintiff wishes to pursue against each Defendant. 20 Plaintiff’s complaint is vague and unclear as to each separate Defendant’s actions. The 21 complaint also improperly makes legal conclusions by alleging a legal claim without connecting 22 specific factual details to the types of alleged legal claims. Therefore, Plaintiff has not provided 23 sufficient factual content for the Court to find any claim is plausible as presented. 24 The Court warns Plaintiff that the Court will not review a second amended 25 complaint that is presented in the same form as the first amended complaint. The Court 26 will not review multiple types of attachments that force the Court to find and obtain facts 27 from the various documents and connect those facts to different claims and Defendants. Instead, the complaint must be retyped or rewritten in its entirety, preferably on the court- 1 approved form, and must be complete without reference to the original complaint, the first 2 amended complaint, or any other pleading, attachment, or document, because an amended 3 complaint supersedes the preceding complaint. 4 Plaintiff must present his claims in a clear manner describing what each Defendant 5 specifically did to Plaintiff that would form a claim against that specific Defendant and clearly 6 state the legal claim he is pursuing against each Defendant. The Court will provide the legal 7 standards below for what claims Plaintiff appears to try to claim. 8 B. Plaintiff must Clearly Identify the Defendants he Wants to Sue 9 It is unclear whether Plaintiff is still trying to sue the government agencies: the Sonora 10 Police Department, the Tuolumne County Jail, and the Tuolumne County District Attorney’s 11 Office, or is only now trying to sue individual persons that work for these government agencies 12 because of the way the names are written on the caption page of the complaint (the first page). If 13 Plaintiff wants to sue only the individual persons, he only needs to list the persons’ names on the 14 first page, and may list the agencies that employ the persons on the following pages where the 15 form contains spaces for “Job or Title.” If Plaintiff wants to also sue the agencies, he must list 16 the agencies as separate Defendants under Section I(B) of the complaint form. 17 Below, the Court will provide the legal standards for claims against individuals and 18 against the government entities. If Plaintiff chooses to file a second amended complaint, he must 19 clearly and separate identify each Defendant, whether an agency or a person. 20 C. Plaintiff’s Discovery Requests are Denied at this Stage 21 Plaintiff attaches a document entitled Freedom of Info Subpoena Requests, and lists six 22 types of subpoenas he would like to issue in this action. (ECF No. 7 at 29.) Such a request for 23 discovery is premature and shall be denied without prejudice. The Court has not ordered the 24 complaint served and no defendant has appeared in this action. Thus, Plaintiff will have to wait 25 for the Court to screen the complaint in this action and have the Defendants served before he 26 may proceed in issuing discovery. 27 To the extend he wishes to pursue a Freedom of Information Act Request, The Court 1 agencies for federal records. The equivalent for the state of California is the California Public 2 Records Act, and he may choose to file such California Public Records Act requests directly with 3 the agencies without involvement of this Court, if he wishes. 4 III. 5 SCREENING REQUIREMENT 6 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 7 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 8 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 9 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 10 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 11 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis 12 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 13 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 14 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 15 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 16 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 17 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 18 defendant who is immune from such relief.” 28 U.S.C.

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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 STANLEY E. REDICK, III, Case No. 1:21-cv-00287-NONE-SAB

11 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE A SECOND 12 v. AMENDED COMPLAINT

13 SONORA POLICE DEPARTMENT, et al., (ECF No. 7)

14 Defendants. THIRTY (30) DAY DEADLINE

2 As the Court instructed above, if Plaintiff is still attempting to name the government agencies, the Tuolumne 26 County District Attorney’s Office, the Sonora Police Department, and the Tuolumne County Jail, as he did in the initial complaint, Plaintiff must list these organizations as separate Defendants Section 1B of the complaint form, 27 under “The Defendants.” However, if he only means to list the individual Defendants, he is instructed to only write the first and last names on the first caption page, not the place of employment. Plaintiff should only write the Job or 1 accept a complaint that is a collection of various types of documents with writing scratched 2 out and Defendants identified by numbers written over the various documents. The 3 complaint in this form is impermissibly vague and unclear, and does not satisfy Federal 4 Rule of Civil Procedure 8’s requirement to provide a short and plain statement of the 5 claim. However, because the Court has already summarized some of the documents that were 6 attached to the original complaint that are again attached as part of the second amended 7 complaint, it will again provide those summaries now. However, the Court will not summarize 8 the additional documents attached to the second amended complaint. 9 A. The Grievance Letter 10 Plaintiff attaches an undated document entitled “Grievance Letter.” (FAC 25-26.) It is 11 not clear if the Grievance Letter was initially directed to the Court in this action, however, it does 12 provide a concise explanation of the Plaintiff’s allegations and basis for sought damages. 13 In sum, Plaintiff states that on December 19, 2018, he turned himself in to the County Jail 14 pursuant to an “unknown” felony warrant issued on December 13, 2018, that was issued based 15 on an incident that occurred at a Lowe’s store in Sonora California. (FAC 25) Plaintiff alleges 16 he attempted to make countless requests to utilize facial recognition and fingerprint evidence 17 from the Lowe’s store, but felt defeated and neglected by the system due to the lack of due 18 diligence by the arresting officer and the loss prevention office of Lowe’s. (Id.) Plaintiff 19 believes he was afforded no chance to clear his name and prove his innocence, and if the 20 evidence was examined in its entirety, it would have exonerated him as a possible suspect. (Id.) 21 After turning himself in, Plaintiff states he was “immediately handcuffed and thrown in 22 jail amongst murder[er]s and convicted rapists for 72 hours including one of my two cell mates 23 which was my cousin Elton Redick who had just recently [been] sentenced to 67 years for first 24 degree murder [and] [it] was one of the scariest times” of Plaintiff’s life. (Id.) Plaintiff states 25 that when he was arraigned, he was finally informed by the judge that the reason he was arrested 26 was because he had been accused of stealing tools from Lowe’s, which Plaintiff alleges is not 27 true because he never purchased or stole tools on that day because he was with friends and his 1 Thereafter, Plaintiff says over the next two years he lost his career, job opportunities, and 2 his family suffered greatly. (Id.) Plaintiff states he should have never faced the gross negligence 3 from different corporations and law enforcement, and at a minimum, he deserved the proper time 4 from the authorities to look into the case before such rash decisions were made. Plaintiff alleges 5 the district attorney rushed into a presumption of guilt only to move onto the next case and this 6 shows the fault in the justice system in Tuolumne County, which carries one of the heaviest 7 caseloads in the United States, resulting in not giving proper time to complete the due diligence 8 each citizen deserves before presumed guilty. (FAC 26.) 9 Plaintiff alleges he was a victim of malicious prosecution by the District Attorney’s 10 Office and the Police Department, as his case was dismissed on November 2, 2020, 11 approximately two years after turning himself in. (Id.) Plaintiff avers to receiving a call from 12 his attorney who had “received paperwork and the name of the actual person who committed the 13 crimes at Lowe’s” on November 3, 2018. (Id.) 14 B. Allegations in the Police Narrative Report 15 Plaintiff attaches a November 16, 2018 report from the Police Department describing 16 events that occurred on November 3, 2018, and November 10, 2018. (FAC 13.) According to 17 the report, a Lowe’s security official reported three male subjects arrived at the store in the same 18 vehicle on November 3, 2018. One of the individuals was later identified as the Plaintiff.3 19 Plaintiff was alleged to have entered the store first, and the other two subjects entered 20 after. Subject #1 got into the electric service cart for disabled individuals. The three subjects 21 selected merchandise totaling $2,077.98. Plaintiff and Subject #2 allegedly exited through the 22 entrance with shopping carts containing unpaid items. Subject #2 abandoned one shopping cart 23 containing $655.84 worth of merchandise when store employees approached the vehicle, and 24 both Plaintiff and Subject #2 are alleged to have driven away with a 2200 watt inverter valued at 25 $649.00, and a $449.00 chainsaw that Plaintiff was alleged to have stolen. 26 3 The Court will refer to this subject as Plaintiff, however, the Court only means to refer to Plaintiff here as the 27 person alleged to have been identified as one of the subjects, and does not mean to imply that Plaintiff was in fact the subject involved in the incident. The Court will refer to the other two individuals as Subject #1 and Subject #2. 1 The Lowe’s security official told the police officer that Plaintiff and Subject #2 2 abandoned Subject #1 at the store, who had also stolen merchandise valued at $315.19. Subject 3 #1 waited in the parking lot until an uninvolved elderly female customer offered him a ride and 4 he left in the vehicle with the merchandise. The official also stated several Lowe’s customers 5 posted photos and videos on the Tuolumne County Incident Feed of a Buick leaving the parking 6 lot, and the officer requested footage from Lowe’s. 7 On November 10, 2018, an officer was dispatched to Lowe’s when the official reported 8 that Subject #1 and Plaintiff allegedly came back to the store to return some of the stolen 9 merchandise, consisting of flooring which Subject #1 was alleged to have stolen. The officer 10 identified Subject #1 and Plaintiff outside the store and made contact with them. The report 11 specifically notes that Plaintiff was allegedly wearing the same clothing that he was identified as 12 wearing on November 3, 2018, at the Lowe’s store.4 Not knowing the full details of the case, the 13 officer allowed Plaintiff and Subject #1 to leave the store with the merchandise, and the officer 14 brought the initial report from the security official, the still images, and the video evidence of the 15 initial theft, back to the Sonora Police Department. The report states the officer watched the 16 video and recognized the third subject. 17 C. Rebuttal to Sonora Police Department Narrative 18 Plaintiff also attaches a document entitled “Rebuttal to Sonora Police Department 19 Narrative.” (FAC 17.) Plaintiff essentially proffers he was not involved in the theft on 20 November 3, 2018, and was not at Lowe’s on such date. Plaintiff states that he did in fact go to 21 Lowe’s on November 10, 2018, to exchange wood flooring which belonged to the individual 22 identified as Subject #1. However, Plaintiff argues he was installing wood flooring for Subject 23 #1, was informed from Subject #1 that the flooring was from Lowe’s, and that it could be 24 exchanged at Lowe’s due to the wood flooring chipping off of the corners. Plaintiff disputes the 25 report that he was wearing the same clothing as the individual identified on November 3, 2018. 26 (Compl. 17-18.)

27 4 The police report appears to mistakenly refer to November 4, 2018, the date the initial report was taken, rather than November 3, 2018, the date of the alleged crime. Plaintiff correctly highlights this is the incorrect date in his 1 D. Plaintiff’s Individually Listed Claims and Allegations 2 Plaintiff lists ten (10) individual claims, or allegations containing legal citations. All ten 3 (10) are alleged against the Police Department Defendants. Seven (7) are alleged against the 4 District Attorney’s Office Defendants. Three (3) are alleged against the County Jail Defendants. 5 1. Claims Against all Defendants 6 Plaintiff lists three claims in an essentially identical way directed against all Defendants. 7 Plaintiff claims intentional infliction of emotional distress from slander, and or 8 defamation of character, and appears to cite California Penal Code § 4030 pertaining to strip and 9 body cavity searches, and 42 U.S.C. § 1983. Plaintiff alleges the Defendants deprived him of 10 rights and privileges under the United States Constitution. 11 Plaintiff claims gross maliciousness and negligence by the arresting officer, who 12 subjected Plaintiff to unreasonable force in connection with the arrest, subjected Plaintiff to a 13 strip search humiliating him during the booking process, and made Plaintiff an accused citizen 14 when he was not guilty. 15 Plaintiff claims a violation of California’s Tom Bane Civil Rights Act, Civil Code § 52.1 16 for: (a) humiliating battery against Plaintiff for an illegal search and seizure, and strip search; (b) 17 placement in a highly volatile incarceration room with accused murderers for a period of 72 18 hours without Plaintiff even knowing what his alleged charges were; and (c) “[i]impeach the 19 accusers as they did not do their [due] diligence into ownership to the alleged crime,” and 20 Plaintiff motioned the District Attorney’s Office and the courts multiple times asking for a 21 dismissal of this case based on a false warrant without probable cause.

22 2. Claims Against the Police Department Defendants and District Attorney’s Office Defendants 23 24 In addition to the three claims discussed in the previous subsection, Plaintiff lists four 25 additional claims that are directed against the Police Department Defendants and the District 26 Attorney’s Office Defendants. 27 Plaintiff lists a claim for mistaken identity for claiming a United States citizen committed 1 Plaintiff lists a claim for a malicious false accusation that Plaintiff was involved in the 2 crime at Lowe’s on November 3, 2018. 3 Plaintiff then appears to cite the United States Court of Appeals for the Eighth Circuit, 4 but does not provide the Court with a workable citation to locate the specific case. The citation 5 appears to refer to the probable cause standard, and that an officer must perform at least a 6 cursory investigation to avoid a wrongful accusation, and states that at a minimum, an 7 investigation should have involved interviewing other witnesses and video from Lowe’s 8 claiming facial recognition, before establishing for a definite fact that Plaintiff was guilty of such 9 crimes. 10 Finally, Plaintiff lists a claim under 42 U.S.C. § 1983 for lack of probable cause for the 11 arrest, and under the totality of the circumstances standard requiring a prudent person to 12 conclude there was a fair probability that Plaintiff had committed a crime. 13 3. Claims Against the Police Department Defendants Only 14 Plaintiff lists three additional claims against the Police Department Defendants only. 15 First, for “misrecolection [sic],” described as remembering the details of the crime 16 committed. 17 Second, for official misconduct of the Sonora Police Department in handling witness 18 statements, and for misleading the forensic evidence as the police should not have asked leading 19 questions which caused witnesses to create false memories. 20 Last, Plaintiff again appears to refer to the United States Court of Appeals for the Eighth 21 Circuit for a probable cause standard, stating an officer need not conduct a mini trial before 22 making an arrest, but probable cause does not exist where minimal further investigation would 23 have exonerated Plaintiff from these charges. 24 E. Claimed Damages 25 Where Plaintiff lists individual claims against each Defendant, Plaintiff also lists the 26 following types of damages: (1) lost wages; (2) medical and incarceration fees; (3) attorneys’ 27 fees; (4) pain and suffering, mental distress; and (5) presumed damages from violation of civil 1 Further, Plaintiff attaches a document entitled “Itemized Special Damages.” (FAC 27- 2 28.) In this attachment, Plaintiff appears to claim lost wages from three different professions: (1) 3 as a California Licensed Fight Promotor for Cagebound Fighting Championship, with lost wages 4 from four events per year at $60,000 per event, over two years, for a total of $480,000.00; (2) as 5 a Licensed California Contractor with total lost wages since November 2018 of $260,000.00, 6 with future loss of profit estimated at $10,400,000.00 over the next forty (40) years, and an 7 additional $2,340,000.00 from loss of credibility in the profession; and (3) Licensed Power Pole 8 Fielding Engineer with total lost wages of approximately $336,000.00, in addition to 9 $244,000.00, for the loss of credibility relating to thirty years of prior training. 10 V. 11 DISCUSSION 12 A. Federal Rule of Civil Procedure 8 13 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 14 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement must 15 simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which 16 it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal 17 quotation marks omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals 18 of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Iqbal, 556 U.S. at 678 (citation omitted). This is because, while factual allegations are accepted 20 as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss v. U.S. 21 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Therefore, Plaintiff must set forth “sufficient 22 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” A claim 23 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 24 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 25 678 (citations and internal quotation marks omitted). 26 As currently pled, Plaintiff’s complaint does not contain enough factual details to permit 27 the Court to draw the reasonable inference that any of the Defendants are liable for the 1 misconduct alleged. Iqbal, 556 U.S. at 678. Most of Plaintiff’s allegations are vague and 2 conclusory statements that his rights were violated. 3 It appears Plaintiff’s only allegations against the investigating officers are vague claims 4 that they misled witnesses when they made statements, and that he was subjected to a strip 5 search when he was arrested and booked into jail for seventy-two (72) hours. Plaintiff does not 6 allege any officer arrested or performed a search of Plaintiff until a warrant was issued, as 7 Plaintiff alleges he turned himself to the County Jail pursuant to a warrant. The Court will 8 provide the relevant legal standards concerning searches under the Fourth Amendment below, as 9 well as the relevant standards pertaining to a jail or prison’s right to perform strip searches prior 10 to booking a pre-trial detainee into jail and excessive force standards. The Court will also 11 provide the standard for falsifying a police report. 12 Other than generally arguing he is innocent of the crime was he was accused of, that he 13 motioned the District Attorney’s Office multiple times for a dismissal of this action, and that a 14 better investigation should have been completed, Plaintiff does not present sufficient facts 15 specifically pertaining to the Defendants from the District Attorney’s Office to state a claim 16 under the legal standards explained below. Plaintiff essentially only provides legal conclusions 17 that his rights were violated without explaining who did what or how. 18 Further, as explained above, Plaintiff’s second amended complaint contains various 19 documents and attachments, with words crossed out and Defendants’ labels such as Defendant # 20 1 and Defendant #2 to certain lines of the attachments and summaries. Plaintiff’s complaint is 21 vague and unclear as to each separate Defendant’s actions. The complaint also improperly 22 makes legal conclusions by alleging a legal claim without connecting specific factual details to 23 the types of alleged legal claims. Therefore, Plaintiff has not provided sufficient factual content 24 for the Court to find any claim is plausible as presented. For these reasons, Plaintiff’s complaint 25 does not comply with the requirements of Rule 8(a)(2). 26 The Court will grant Plaintiff leave to file a second amended complaint to allow Plaintiff 27 to provide additional factual details to the Court and present his claims in a clear fashion. 1 the legal standards discussed below, when deciding whether to file a first amended complaint. If 2 Plaintiff files a second amended complaint, he must present his claims in a clear manner 3 describing what each Defendant specifically did to Plaintiff that would form a claim against that 4 specific Defendant and clearly state the legal claim he is pursuing against each Defendant. 5 B. Unlawful Arrest, Search, and Excessive Force under the Fourth Amendment 6 Plaintiff avers to the probable cause standard for officers making an arrest. Plaintiff also 7 claims the arresting officer subjected Plaintiff to unreasonable force in connection with the 8 arrest, subjected Plaintiff to a humiliating strip search during the booking process, and 9 committed battery in conducting such alleged illegal search and seizure. 10 The Fourth Amendment to the Constitution of the United States provides:

11 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 12 shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be 13 seized. 14 U.S. Const., amend. IV. 15 Warrantless searches would violate the Fourth Amendment unless the search falls within 16 an exception to the Fourth Amendment’s warrant requirement. See United States v. Ojeda, 276 17 F.3d 486, 488 (9th Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). 18 “A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth 19 Amendment, provided the arrest was made without probable cause or other justification.” 20 Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause to 21 arrest exists when officers have knowledge or reasonably trustworthy information sufficient to 22 lead a person of reasonable caution to believe that an offense has been or is being committed by 23 the person being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). “While 24 conclusive evidence of guilt is of course not necessary under this standard to establish probable 25 cause, [m]ere suspicion, common rumor, or even strong reason to suspect are not enough.” Id. 26 (internal quotations and citation omitted) (alteration in original). 27 Plaintiff fails to state a claim for unlawful arrest because he specifically states he turned 1 officers to have probable cause to make an arrest if they do not have an arrest warrant.” Braden 2 v. Los Angeles Police Dep’t, No. CV 16-7633 JVS(JC), 2017 WL 78467, at *3 (C.D. Cal. Jan. 9, 3 2017) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); see also Blankenhorn v. City of Orange, 4 485 F.3d 463, 476 (9th Cir. 2007) (Stating it was “clearly established long ago that an officer 5 may not conduct a warrantless arrest absent probable cause.”). While Plaintiff did not directly 6 name the Tuolumne County Superior Court nor a judge in the complaint, to the extent Plaintiff 7 alleges the warrant was not based on probable cause, the Court provides the standards for judicial 8 immunity below. 9 To the extent Plaintiff claims the search conducted during the booking process was 10 unlawful or amounted to excessive force, Plaintiff has not stated facts that would support a 11 finding that his constitutional rights were violated. Aside from stating the emotional impact of 12 the process, Plaintiff does not describe what happened in any detail. The Court will provide the 13 Plaintiff with the legal standards governing searches conducted at booking for pre-trial detainees, 14 and notifies Plaintiff that routine strip searches performed at booking are generally not unlawful 15 absent extraordinary circumstances. 16 Both convicted prisoners and pretrial detainees retain some Fourth Amendment rights 17 upon commitment to a corrections facility, however, the Fourth Amendment only prohibits 18 unreasonable searches. See, e.g., Bell v. Wolfish, 441 U.S. 520, 558 (1979). “The test of 19 reasonableness under the Fourth Amendment is not capable of precise definition or mechanical 20 application [and] each case it requires a balancing of the need for the particular search against the 21 invasion of personal rights that the search entails.” Id. “Courts must consider the scope of the 22 particular intrusion, the manner in which it is conducted, the justification for initiating it, and the 23 place in which it is conducted.” Id. 24 The Ninth Circuit has recognized that strip searches may be unreasonable if “excessive, 25 vindictive, harassing, or unrelated to any legitimate penological interest.” Michenfelder v. 26 Sumner, 860 F.2d 328, 332 (9th Cir. 1988). “ ‘Correctional officials have a significant interest in 27 conducting a thorough search as a standard part of the intake process,’ and the Supreme Court 1 searches even without reasonable suspicion that a specific individual is concealing weapons or 2 other contraband.” Belyew v. Honea, No. 217CV0508KJMACP, 2020 WL 6305866, at *2–3 3 (E.D. Cal. Oct. 28, 2020) (quoting Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 30-39 4 (2012)), report and recommendation adopted, No. 217CV0508KJMACP, 2021 WL 720231 (E.D. 5 Cal. Feb. 24, 2021); see also Fouche v. Holencik, No. ED CV 10-0087-MMM, 2012 WL 6 1901826, at *2–3 (C.D. Cal. Apr. 17, 2012) (“Applying the Bell and Turner factors, the United 7 States Supreme Court recently held that a jail’s policy requiring all detainees—including those 8 being held on misdemeanor charges—to be strip searched prior to being placed in the general 9 population is reasonable under the Fourth Amendment.”) (citing Florence, 566 U.S. 318). “In 10 examining the conditions of pretrial detention, the question ‘is whether those conditions amount 11 to punishment of the detainee.’ ” Belyew, 2020 WL 6305866, at *4 (quoting Bell, 441 U.S. at 12 535). 13 Plaintiff has not alleged any specific facts that would support a claim that the strip search 14 performed at booking was unlawful or violated his constitutional rights, whether Plaintiff states it 15 was an exercise of excessive force, or an unlawful search. See Bell, 441 U.S. 520; Belyew, 2020 16 WL 6305866; Michenfelder v. Sumner, 860 F.2d at 332; Cf. Moore v. Howell, No. 17 219CV02108GMNBNW, 2020 WL 7081580, at *3 (D. Nev. Dec. 2, 2020) (finding cognizable 18 claim where defendant “conducted a vindictive strip search of Plaintiff and other inmates in 19 retaliation for another inmate filing a PREA complaint . . . [that] was not related to any 20 legitimate penological interest and was only conducted to punish Plaintiff and other inmates for 21 the PREA complaint.”). 22 C. Falsification of Police Records 23 Plaintiff avers to a claim for official misconduct by the Police Department in handling 24 witness statements, and for misleading the forensic evidence as the police should not have asked 25 leading questions which caused witnesses to create false memories. 26 Individuals have a constitutional due process right “not to be subjected to criminal 27 charges on the basis of false evidence that was deliberately fabricated by the government.” 1 process violation, a plaintiff must, at a minimum, allege either: (1) that government officials 2 continued their investigation “despite the fact that they knew or should have known that 3 [Plaintiff] was innocent;” or (2) “used investigative techniques that were so coercive and abusive 4 that [they] knew or should have known those techniques would yield false information.” 5 Cunningham v. Perez, 345 F.3d 802, 811 (9th Cir. 2003) (quoting Devereaux, 263 F.3d at 1076). 6 While Plaintiff attaches a police report and a rebuttal stating certain facts are incorrect, 7 such as his presence on the date of the crime or that he was not wearing the same clothing as the 8 person in the video, aside from now writing in Defendant Nos. 3 and 5 on various parts of the 9 attachments, as explained above, the complaint as submitted in this fashion does not satisfy Rule 10 8 of the Federal Rules of Civil Procedure, and the Court will not review documents or 11 attachments submitted in this fashion again. Plaintiff fails to indicate in any specific detail how 12 any officer mishandled witnesses or any specific forensic evidence in a manner that demonstrates 13 intentional falsification of any record or evidence. Further, if Plaintiff wishes to pursue claims 14 against the agencies, Plaintiff has not alleged any misconduct was part of a practice, custom, or 15 policy, in order to establish municipal liability against the Police Department or District 16 Attorney’s Office, and has not described how any prosecutor knowingly used false information 17 in pursuing criminal charges that was obtained by any police officer. Plaintiff’s bare conclusory 18 allegations are not sufficient to establish a claim, and does not satisfy the requirements of Federal 19 Rule of Civil Procedure 8 as the Court found above. 20 D. Malicious Prosecution and Prosecutorial/Judicial Immunity 21 Plaintiff states he was subjected to a malicious false accusation that he was involved in 22 the crime on November 3, 2018. (FAC 23.) 23 A claim for malicious prosecution or abuse of process is not generally cognizable under 24 Section 1983 if a process is available within the state judicial system to provide a remedy. Usher 25 v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citations omitted). The exception is 26 “when a malicious prosecution is conducted with the intent to deprive a person of equal 27 protection of the laws or is otherwise intended to subject a person to denial of constitutional 1 prosecution, a plaintiff “must show that the defendants prosecuted [him] with malice and without 2 probable cause, and that they did so for the purpose of denying [him] equal protection or another 3 specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) 4 (citations omitted); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); 5 Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012). A malicious prosecution claim 6 may be brought against prosecutors or against the individuals who wrongfully caused the 7 prosecution. Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011). Probable cause is an absolute 8 defense to malicious prosecution. Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 9 2009). 10 In order to state a malicious prosecution claim, Plaintiff must show that the prior 11 proceeding was commenced by or at the direction of a defendant and it was: 1) pursued to a legal 12 termination favorable to plaintiff; 2) brought without probable cause; and 3) initiated with 13 malice. Ayala v. Environmental Health, 426 F.Supp.2d 1070, 1083 (E.D. Cal. 2006). For the 14 termination to be considered “favorable” to the malicious prosecution plaintiff, it must be 15 reflective of the merits of the action and of the plaintiff’s innocence of the charges. Villa v. 16 Cole, 4 Cal.App.4th 1327, 1335 (1992); Awabdy, 368 F.3d at 1068 (“An individual seeking to 17 bring a malicious prosecution claim must generally establish that the prior proceedings 18 terminated in such a manner as to indicate his innocence.”). In this regard, “a dismissal in the 19 interests of justice satisfies this requirement if it reflects the opinion of the prosecuting party or 20 the court that the action lacked merit or would result in a decision in favor of the defendant,” and 21 “[w]hen such a dismissal is procured as the result of a motion by the prosecutor and there are 22 allegations that the prior proceedings were instituted as the result of fraudulent conduct, a 23 malicious prosecution plaintiff is not precluded from maintaining his action unless the 24 defendants can establish that the charges were withdrawn on the basis of a compromise among 25 the parties or for a cause that was not inconsistent with his guilt.” Id. 26 Again, Plaintiff’s complaint as submitted with attachments and various conclusory 27 allegations with Defendants’ numbers written throughout the documents does not provide a clear 1 any individual caused the case to be prosecuted against Plaintiff with malice and without 2 probable cause nor presented any specific facts about any prosecution following his release after 3 the seventy-two (72) hour hold after turning himself in. Plaintiff alleges he was a victim of 4 malicious prosecution because his case was dismissed approximately two years after turning 5 himself in. (FAC 26.) Plaintiff avers to receiving a call from his attorney who had “received 6 paperwork and the name of the actual person who committed the crimes at Lowe’s” on 7 November 3, 2018. (Id.) 8 Plaintiff has not provided sufficient facts regarding the dismissal for the Court to 9 determine whether a malicious prosecution claim can be stated. Plaintiff is advised that a 10 dismissal resulting from negotiation, settlement or agreement is generally not deemed a 11 favorable termination of the proceedings. Villa, 4 Cal.App.4th at 1335. “[A]s a matter of law. . . 12 the favorable termination which is essential to the plaintiff in a malicious prosecution action can 13 not be based on the dismissal of the criminal charges remaining after the defendant in a criminal 14 proceeding has entered a plea of nolo contendere to one or more of the charges in the accusatory 15 pleading pursuant to a plea bargain. Cote v. Henderson, 218 Cal. App. 3d 796, 804 (1990). 16 Therefore, if the charges were dismissed as part of a plea bargain it would not be a favorable 17 termination because it would not indicate that Plaintiff was innocent of the charges. 18 Further, Plaintiff is advised that judges and prosecutors are immune from liability under § 19 1983 when they are functioning in their official capacities under proper jurisdiction. See Imbler 20 v. Pactman, 424 U.S. 409, 427 (1976); see also Olsen v. Idaho State Bd. of Medicine, 363 F.3d 21 916, 922 (9th Cir.2004) (“Absolute immunity is generally accorded to judges and prosecutors 22 functioning in their official capacities”); Ashelman v. Pope, 793 F.2d 1072, 1075-77 (9th 23 Cir.1986) (noting that judges are generally immune from § 1983 claims except when acting in 24 “clear absence of all jurisdiction . . . or performs an act that is not ‘judicial’ in nature,” and 25 prosecutors are generally immune unless acting without “authority”) (internal citations omitted); 26 Walters v. Mason, No. 215CV0822KJMCMKP, 2017 WL 6344319, at *2 (E.D. Cal. Dec. 12, 27 2017) (same); Forte v. Merced Cty., No. 1:15-CV-0147 KJM-BAM, 2016 WL 159217, at *12– 1 when they are acting pursuant to their official role as advocate for the state”), report and 2 recommendation adopted, No. 1:15-CV-0147-KJM-BAM, 2016 WL 739798 (E.D. Cal. Feb. 25, 3 2016); Torres v. Saba, No. 16-CV-06607-SI, 2017 WL 86020, at *3–4 (N.D. Cal. Jan. 10, 2017). 4 Where a prosecutor acts within his authority “ ‘in initiating a prosecution and in presenting the 5 state’s case,’ absolute immunity applies.” Ashelman, 793 F.2d at 1076 (quoting Imbler, 424 6 U.S. at 431). This immunity extends to actions during both the pre-trial and posttrial phases of a 7 case. See Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). 8 Accordingly, Plaintiff has not stated a claim for malicious prosecution. 9 E. Section 1983, Supervisory Liability, and Municipal Liability 10 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 11 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 12 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 13 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, a 14 plaintiff is required to show that (1) each defendant acted under color of state law and (2) each 15 defendant deprived her of rights secured by the Constitution or federal law. Long, 442 F.3d at 16 1185 (9th Cir. 2006). There is no respondeat superior liability under section 1983, and 17 therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. 18 To state a claim, Plaintiff must demonstrate that each defendant personally participated in the 19 deprivation of his rights. Jones, 297 F.3d at 934. 20 In other words, to the extent Plaintiff is attempting to make a claim against a district 21 attorney or police officer that was not personally involved but was only acting as a supervisor 22 over an officer or assistant district attorney, Plaintiff cannot state a claim unless they were 23 personally and directly involved int eh violation of his rights. 24 Further, a local government unit may not be held responsible for the acts of its employees 25 under a respondeat superior theory of liability. Monell v. Department of Social Services, 436 26 U.S. 658, 691 (1978). Rather, a local government unit may only be held liable if it inflicts the 27 injury complained of through a policy or custom. Waggy v. Spokane County Washington, 594 1 that a constitutional right was violated, the municipality had a policy, that policy was deliberately 2 indifferent to plaintiff’s constitutional rights, and the policy was “the moving force” behind the 3 constitutional violation. Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 400 4 (1997); Burke v. County of Alameda, 586 F.3d 725, 734 (9th Cir. 2009); Gibson v. County of 5 Washoe, Nev., 290 F.3d 1175, 1185-86 (9th Cir. 2002). “The custom or policy must be a 6 ‘deliberate choice to follow a course of action . . . made from among various alternatives by the 7 official or officials responsible for establishing final policy with respect to the subject matter in 8 question.’ ” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (quoting 9 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). 10 A failure to train may establish liability where such omission of training amounts to 11 deliberate indifference to a constitutional right. Clouthier v. Cty. of Contra Costa, 591 F.3d 12 1232, 1249-50 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d 1060. This 13 standard is met when “the need for more or different training is so obvious, and the inadequacy 14 so likely to result in the violation of constitutional rights, that the policymakers of the city can 15 reasonably be said to have been deliberately indifferent to the need.” Id. at 1249 (quoting City of 16 Canton v. Harris, 489 U.S. 378, 390 (1989). “For example, if police activities in arresting 17 fleeing felons ‘so often violate constitutional rights that the need for further training must have 18 been plainly obvious to the city policymakers,’ then the city’s failure to train may constitute 19 ‘deliberate indifference.’ ” Id. “Only where a failure to train reflects a ‘deliberate’ or 20 ‘conscious’ choice by the municipality can the failure be properly thought of as an actionable 21 city ‘policy.’ ” City of Canton, 489 U.S. at 379. “A pattern of similar constitutional violations 22 by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for 23 purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (citation omitted). 24 A plaintiff seeking to impose liability upon a municipality is required to identify the 25 policy or custom that caused the constitutional injury. Bd. of Cty. Comm’rs of Bryan Cty., Okl., 26 520 U.S. at 403. If Plaintiff is attempting to bring claims against the Police Department, the 27 County Jail., or the District Attorney’s Office, as agencies and not the individuals involved, 1 F. Allegations of Slander and Defamation 2 Plaintiff claims emotional distress from slander, and or defamation of character, and 3 appears to cite California Penal Code § 4030 pertaining to strip and body cavity searches in 4 relation to the claim. Slander is an oral defamatory statement. To bring a claim for defamation 5 in a Section 1983 action, Plaintiff must meet the “stigma-plus,” or “defamation-plus” standard. 6 “To establish a claim for defamation under Section 1983, a plaintiff must first establish 7 defamation under state law.” Flores v. City of Bakersfield, No. 1:17-CV-1393-JLT, 2019 WL 8 7038385, at *17 (E.D. Cal. Dec. 20, 2019) (citing Crowe v. County of San Diego, 242 F.Supp.2d 9 740, 746 (S.D. Cal. 2003)). Under California law, the elements of a defamation claim are: “(a) a 10 publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural 11 tendency to injure or that causes special damage.” Kaufman v. United Health Group Inc., 546 12 Fed. Appx. 691, 692 (9th Cir.2013) (quoting Taus v. Loftus, 40 Cal.4th 683, 54 Cal.Rptr.3d 775, 13 151 P.3d 1185, 1209 (Cal.2007)). To be actionable, an allegedly defamatory statement must, 14 among other things, “contain a provably false factual connotation.” Gilbrook v. City of 15 Westminster, 177 F.3d 839, 861 (9th Cir.) (citation omitted). “Under California law, although a 16 plaintiff need not plead the allegedly defamatory statement verbatim, the allegedly defamatory 17 statement must be specifically identified, and the plaintiff must plead the substance of the 18 statement. Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1216 (C.D. Cal. 2004). 19 In a § 1983 action, injury to reputation alone is not enough to state a claim. “The 20 procedural due process rights of the Fourteenth Amendment apply only when there is a 21 deprivation of a constitutionally protected liberty or property interest.” WMX Techs., Inc. v. 22 Miller (“WMX II”), 197 F.3d 367, 373 (9th Cir. 1999). The Supreme Court has made it clear 23 that reputation alone is not an interest protected by the Constitution. WMX II, 197 F.3d at 373; 24 see Paul v. Davis, 424 U.S. 693, 706 (1976) (“the Court has never held that the mere defamation 25 of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the 26 guarantees of procedural due process absent an accompanying loss of government 27 employment”). “[R]eputational harm alone does not suffice for a constitutional claim.” Miller 1 injury to that interest . . . inflicted by an officer of the State, does not result in a deprivation of 2 any ‘liberty’ or ‘property’ recognized by state or federal law.” Paul, 424 U.S at 712. Plaintiff 3 must demonstrate the loss of a recognizable property or liberty interest in conjunction with the 4 allegation that they suffered injury to reputation. Miller, 355 F.3d at 1179; Cooper v. Dupnik, 5 924 F.2d 1520, 1532 (9th Cir. 1991), rev’d on other grounds, 963 F.2d 1220, 1235 n.6 (9th Cir. 6 1992)). A plaintiff can meet this test by showing that “injury to reputation was inflicted in 7 connection with a federally protected right” or that “injury to reputation caused the denial of a 8 federally protected right.” Herb Hallman Chevrolet, Inc. v. Nash–Holmes, 169 F.3d 636, 645 9 (9th Cir. 1999); Cooper, 924 F.2d at 1532-33. This is referred to both as a “defamation-plus” or 10 “stigma-plus” claim. See, e.g., Flores, 2019 WL 7038385, at *17. 11 Plaintiff has not put forth factual allegations that his reputation was injured in connection 12 with a federally protected right or that the damage caused him to be denied a federally protected 13 right. Even if Plaintiff could not meet the defamation-plus standard but was able to demonstrate 14 defamation under California law, the Court would also decline to exercise supplemental 15 jurisdiction over such state claim because Plaintiff failed to state a separate cognizable federal 16 claim, as explained above. See Ward v. Webber, No. 118CV00916SABPC, 2018 WL 3615853, 17 at *3 (E.D. Cal. July 26, 2018) (“Because Plaintiff fails to state a cognizable federal claim, the 18 Court will not exercise supplemental jurisdiction over his state law [slander] claim, even if he 19 cures the deficiencies and states a claim.”) (citing 28 U.S.C. § 1367(a); Herman Family 20 Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001)). 21 G. Intentional Infliction of Emotional Distress 22 Plaintiff lists a claim for intentional infliction of emotional distress, averring to slander, 23 defamation, and violation of his constitutional rights. 24 The elements for a claim of intentional infliction of emotional distress under California 25 law are: “(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of 26 the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and 27 proximate causation of the emotional distress.” Wong v. Tai Jing, 189 Cal.App.4th 1354, 1376 1 ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” Simo 2 v. Union of NeedleTrades, Industrial & Textile Employees, 322 F.3d 602, 622 (9th Cir. 2002) 3 (quoting Saridakis v. United Airlines, 166 F.3d 1272, 1278 (9th Cir. 1999)). The emotional 4 distress must be “of such a substantial quantity or enduring quality that no reasonable man in a 5 civilized society should be expected to endure it.” Simo, 322 F.3d at 622. 6 Given the legal standards and facts discussed above pertaining to the Fourth Amendment 7 pertaining to the strip search of Plaintiff, Section 1983 linkage, prosecutorial/judicial immunity, 8 and defamation/slander, Plaintiff has not stated sufficient facts pertaining to any named 9 Defendant or unnamed individual that would rise to the level of intentional infliction of 10 emotional distress. 11 VI. 12 CONCLUSION AND ORDER 13 Based on the foregoing, Plaintiff’s first amended complaint fails to state a cognizable 14 claim for relief. The Court will grant Plaintiff an opportunity to amend his complaint to cure the 15 above-identified deficiencies to the extent he is able to do so in good faith. Lopez v. Smith, 203 16 F.3d 1122, 1130 (9th Cir. 2000). 17 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 18 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 19 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to 20 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 21 omitted). Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 22 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 23 “buckshot” complaints). 24 Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey 25 v. Maricopa Cnty., 693 F.3d 896, 927. Therefore, Plaintiff’s first amended complaint must be 26 “complete in itself without reference to the prior or superseded pleading.” Local Rule 220. 27 Finally, Plaintiff is notified that he must write and describe and all facts and claims in the 1 | words crossed out or with labels such as Defendant # 1 and Defendant #2 placed next to 2 | certain lines of the attachments and summaries, and the Court will not again review 3 | attached documents, letters, rebuttals, or police reports unless the facts relevant to his 4 | claim are also fully described in the body of the complaint. 5 Based on the foregoing, it is HEREBY ORDERED that: 6 1. Plaintiff's requests for discovery and issuance of subpoenas is premature and is 7 DENIED at time without prejudice; 8 2. The Clerk’s office shall send Plaintiff a complaint form; 9 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 10 second amended complaint curing the deficiencies identified by the Court in this 11 order; and 12 4. If Plaintiff fails to file a second amended complaint in compliance with this order, 13 the Court will recommend to the district judge that this action be dismissed, with 14 prejudice, for failure to obey a court order, failure to prosecute, and for failure to 15 state a claim. 16 17 IT IS SO ORDERED. OF. nf ee 18 | Dated: _May 13, 2021 __ ef 19 UNITED STATES MAGISTRATE JUDGE

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