(PC) Turner v. Sacramento City Police ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, No. 2:19-cv-0417 CKD P 12 Plaintiff, 13 v. ORDER AND 14 SACRAMENTO CITY POLICE, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. On July 17, 2019, the court screened plaintiff’s complaint as the court is required to do 19 under 28 U.S.C. §1915A(a) and dismissed with leave to amend. Plaintiff has now filed an 20 amended complaint. 21 Again, the court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 23 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 24 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 25 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 26 U.S.C. § 1915A(b)(1), (2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 The court has reviewed plaintiff’s amended complaint. Plaintiff asks that a criminal 19 conviction be vacated. However, as plaintiff was already informed, when a prisoner challenges 20 the legality of his custody and the relief he seeks is the determination of his entitlement to an 21 earlier or immediate release, his sole federal remedy is a writ of habeas corpus which plaintiff 22 would seek under 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). To the 23 extent plaintiff seeks damages, plaintiff was also informed he cannot proceed on a §1983 claim 24 for damages if the claim implies the invalidity of his conviction or sentence. Heck v. Humphrey, 25 512 U.S. 477, 487 (1994). 26 Further, although plaintiff identifies non-governmental workers as defendants, he fails to 27 point to anything suggesting they violated any rights afforded to plaintiff under federal law. 28 1 Finally, plaintiff identifies a City of Sacramento housing inspector as a defendant, but, 2 || again, makes no coherent allegations which amount to a claim arising under federal law. 3 In light of the foregoing, plaintiff's amended complaint must be dismissed. Considering 4 | the instructions and guidance provided plaintiff as to the contents of his amended complaint, and 5 | then the amended complaint, providing leave to amend a second time appears futile. 6 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 7 | assign a district court judge to this case. 8 IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff's amended complaint be dismissed for failure to state a claim upon which 10 | relief can be granted; and 11 2. This case be closed. 12 These findings and recommendations are submitted to the United States District Judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen after 14 | being served with these findings and recommendations, plaintiff may file written objections with 15 | the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 16 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time 17 | waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 18 | 1991). 19 | Dated: April 1, 2020 i; dp. | bie 20 CAROLYN K DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 | | 25 tum0417.frs 26 27 28