Hernandez v. Holt ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ERNIE HERNANDEZ, III, Case No. 1:20-cv-01127-AWI-SAB 10 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED 11 v. COMPLAINT 12 A. HOLT, et al., (ECF No. 1) 13 Defendants. THIRTY DAY DEADLINE 14 15 Ernie Hernandez, III (“Plaintiff”), a state prisoner, is appearing pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is 17 Plaintiff’s complaint, filed on August 13, 2020. (ECF No. 1.) 18 I. 19 SCREENING REQUIREMENT 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 22 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 23 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or 24 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 25 1915(e)(2)(B). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 3 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 4 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 5 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 6 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 7 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 8 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 9 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 10 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 11 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 12 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 13 F.3d at 969. 14 II. 15 ALLEGATIONS IN COMPLAINT 16 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 17 the sua sponte screening requirement under 28 U.S.C. § 1915. 18 Plaintiff brings this action against Officer A. Holt, Corporal J. Dominguez, an 19 unidentified Sergeant (“Doe”), and District Attorney Leah Alvarez in their official and individual 20 capacities alleging violations of the Fourth, Fifth, and Fourteenth Amendments. He is seeking 21 monetary damages. 22 Plaintiff alleges that on April 10, 2019, Defendants Holt and Dominguez manufactured 23 evidence which caused him to be held in custody for 180 days until he was acquitted. (Compl. 24 3,1 ECF No. 1.) Plaintiff contends that the officers wrote fraudulent police reports, provided 25 false statements in their reports, and conspired with Defendant Doe who reviewed their police 26 reports, to charge him with violations of California Penal Code sections 466 and 496(d) and 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 California Vehicle Code sections 10851(a) and 2800.4. (Id.) Plaintiff contends that exculpatory 2 evidence contained within body cam footage was withheld from their reports. (Id.) The body 3 cam footage included the officers doubt which was not included in the reports. (Id.) Plaintiff 4 contends this deprived him of his right to due process and led to a criminal complaint and 5 wrongful incarceration. (Id.) 6 Defendants Holt and Dominguez travelled to Strathmore, another city which is five to 7 seven minutes away and under the jurisdiction of the Sheriff’s Department, to prosecute Plaintiff. 8 (Id. at 4.) Defendants Holt and Dominguez drove their individual department vehicles and did 9 not know the individual who was alleged to be Plaintiff. (Id.) They provided false police reports 10 by writing that they could positively identify Plaintiff when their body cam clearly revealed their 11 doubt which was “clipped” in trial to cover up the doubt. (Id.) Due to the false allegations in the 12 reports, Plaintiff believed he would face an additional 20 years and spent 180 days in jail. (Id.) 13 Defendant Alvarez knowingly showed tampered evidence, the “clipped” body cam video, to the 14 jury in prosecuting Plaintiff for extortion. (Id.) 15 Defendants Holt, Dominguez, and Doe had more than a metaphysical doubt as to the 16 material facts. (Id. at 5.) The Porterville Police Department is under scrutiny for their pattern of 17 misconduct. (Id.) Officers Holt and Dominguez provided perjured testimony at trial and 18 encouraged Defendant Alvarez to prosecute Plaintiff. (Id.) Plaintiff was badgered through 19 social media outlets such as Facebook. (Id.) 20 Around April 10, 2019, the Porterville Police Department utilized several newspaper 21 publications and media platforms along with the Tulare County Sheriff’s Office and department 22 personal to slander Plaintiff such that the fraudulent, fabricated crimes and outstanding warrants 23 spread throughout Tulare County and the surrounding counties. (Id. at 8.) The publications 24 ranged from Facebook to the Visalia Times Delta, Porterville Recorder, Instagram, etc. (Id.) 25 During Plaintiff’s jury trial, from October 1st through 14th, 2019, Defendant Alvarez 26 attempted to incarcerate Plaintiff for longer periods of time. She presented the “clipped” video 27 footage which showed that Defendants Holt and Dominguez were not 100 percent certain that it 1 years of incarceration. (Id. at 9.) 2 For the reasons discussed below, Plaintiff has failed to state a cognizable claim against 3 any named defendant. Plaintiff shall be provided with the legal standards that apply to his claims 4 and shall be granted leave to file an amended complaint. 5 III. 6 DISCUSSION 7 Plaintiff’s complaint is largely composed of conclusory allegations of misconduct and 8 threadbare recitals of elements of the causes of action that are not entitled to the presumption of 9 truth. Iqbal, 556 U.S. at 678. “[A] complaint [that] pleads facts that are ‘merely consistent with’ 10 a defendant’s liability . . . ‘stops short of the line between possibility and plausibility of 11 entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Therefore, 12 the complaint must contain sufficient factual content for the court to draw the reasonable 13 conclusion that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. 14 Here, it appears that the basis of Plaintiff’s complaint is that the officers who arrested him 15 expressed some doubt about the crime for which he was being arrested and that discussion was 16 “clipped” from the body cam footage. Although Plaintiff also contrarily alleges that the video 17 containing the “clipped” footage which showed that the officers were not one hundred percent 18 certain was shown at trial. Additionally, it would also appear from the allegations in the 19 complaint that Plaintiff was convicted on some of the charges brought against him. Notably, 20 Plaintiff alleges that due to the allegations in the report he believed he would be incarcerated for 21 an additional twenty years. (Compl. at 4.) The prosecutor presented the “clipped” video footage 22 which showed that Defendants Holt and Dominguez were not 100 percent certain that it was 23 Plaintiff who had committed the crimes in the hope that he would be given twenty seven years of 24 incarceration. (Id. at 9.) Plaintiff is currently in custody after the jury returned a guilty verdict 25 on some of the charges during the trial.2 26 2 The Court takes judicial notice of records of the Tulare County Superior Court, People v. Ernie Hernandez III, Case No. PCF373627 (filed April 17, 2019). Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th 27 Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). On October 7, 2019, the jury returned a guilty verdict for violation of Vehicle Code section 2800.2(a) and three counts of violation of Penal Code section 1 A. Section 1983 2 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 3 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 4 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 5 Jones, 297 F.3d at 934. There is no respondeat superior liability under section 1983, and 6 therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. 662, 677 7 (2009). To state a claim under section 1983, Plaintiff must demonstrate that each defendant 8 personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 677; Simmons v. 9 Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 10 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. 11 B. Official Capacity Claims 12 Plaintiff brings this action against the defendants in their official capacity seeking 13 monetary damages. “The Eleventh Amendment bars suits for money damages in federal court 14 against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. 15 Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). The Eleventh Amendment does not 16 bar claims for prospective injunctive relief against an officer of the state who acts in his official 17 capacity. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Cerrato v. San Francisco Cmty. 18 Coll. Dist., 26 F.3d 968, 973 (9th Cir. 1994). Plaintiff cannot receive monetary damages against 19 any defendant for actions taken in their official capacity. 20 Further, a suit brought against government officials in their official capacity is generally 21 equivalent to a suit against the government itself. McRorie v. Shimoda, 795 F.2d 780, 783 (9th 22 Cir. 1986). Therefore, officials may be held liable where a “‘policy or custom’ . . . played a part 23 in the violation of federal law.” McRorie, 795 F.2d at 783 (quoting Kentucky v. Graham, 473 24 U.S. 159, 166 (1985); Hafer v. Melo, 502 U.S. 21, 25 (1991). The official may be liable where 25 the act or failure to respond reflects a conscious or deliberate choice to follow a course of action 26 when various alternatives were available. Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) 27 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989). Plaintiff has failed to allege that 1 any named defendant in his or her official capacity. 2 C. Fourth Amendment 3 Plaintiff’s fifth cause of action alleges wrongful and false imprisonment and arrest. The 4 Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, 5 papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. 6 Const. amend. IV. “[T]he Fourth Amendment is enforceable against the States through the 7 Fourteenth Amendment.” Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 8 528 (1967). “To establish a viable Fourth Amendment claim, a plaintiff must show not only that 9 there was a search and seizure as contemplated by the Fourth Amendment, but also that said 10 search and seizure was unreasonable and conducted without consent.” Rakas v. Illinois, 439 11 U.S. 128, 143 (1978); United States v. Rubio, 727 F.2d 786, 796–97 (9th Cir. 1983). 12 Under the Fourth Amendment, a law enforcement officer can make an arrest without a 13 warrant where there is probable cause. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 14 2007). “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy 15 information sufficient to lead a person of reasonable caution to believe that an offense has been 16 or is being committed by the person being arrested.” Rodis v. City, Cty. of San Francisco, 558 17 F.3d 964, 969 (9th Cir. 2009) (citing Lopez, 482 F.3d at 1072 and Beck v. Ohio, 379 U.S. 89, 91 18 (1964)). The Ninth Circuit has defined probable cause as “under the totality of circumstances 19 known to the arresting officers, a prudent person would have concluded that there was a fair 20 probability that [the defendant] had committed a crime.” Lopez, 482 F.3d at 1072 (quoting 21 United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)). “The probable-cause standard is 22 incapable of precise definition or quantification into percentages because it deals with 23 probabilities and depends on the totality of the circumstances.” Rodis, 558 F.3d at 969 (quoting 24 Maryland v. Pringle, 540 U.S. 366, 371 (2003)). “[P]robable cause is a fluid concept-turning on 25 the assessment of probabilities in particular factual contexts-not readily, or even usefully, 26 reduced to a neat set of legal rules.” Rodis, 558 F.3d at 969 (quoting Illinois v. Gates, 462 U.S. 27 213, 232 (1983)). 1 their actions were reasonable for Fourth Amendment purposes. Lopez, 482 F.3d at 1072. The 2 officer’s “subjective reason for making the arrest need not be the criminal offense as to which the 3 known facts provide probable cause.” Id. (quoting Devenpeck v. Alford, 543 U.S. 146, 153 4 (2004)). In some cases, there may be probable cause that would justify an arrest, but additional 5 information obtained at the scene could indicate that there is less than a fair probability that the 6 defendant has committed or is committing a crime. Lopez, 482 F.3d at 1073. 7 Here, Plaintiff alleges that he was arrested with an illegally issued warrant. (Compl. at 8 7.) The complaint is devoid of any facts by which the Court could reasonably infer that the 9 warrant was illegally issued. Officers who have conducted a search or arrest pursuant to a 10 facially valid search warrant and reasonably relied on that warrant are entitled to qualified 11 immunity. Vandenburg v. Cty. of Riverside, 722 F. App’x 657, 659 (9th Cir. 2018); see also Los 12 Angeles Cty. v. Rettele, 550 U.S. 609, 616 (2007) (The Fourth Amendment is not violated when 13 officers execute a valid warrant and act in a reasonable manner to protect themselves from 14 harm); Michigan v. Summers, 452 U.S. 692, 703–05 (1981) (Where “a judicial officer has 15 determined that police have probable cause to believe that someone in the home is committing a 16 crime” it is constitutionally reasonable to require him to open the doors of his home to allow the 17 officers inside.). 18 Plaintiff’s allegation that Defendants Holt and Dominguez expressed some doubt or had 19 more than a metaphysical doubt regarding some elements of the offense is insufficient to state a 20 claim. Generally, “an officer need not have probable cause for every element of the offense.” 21 Lopez, 482 F.3d at 1072 (quoting Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)). 22 Further, the Fourth Amendment is not violated by an arrest where there is probable cause to 23 arrest for a different offense. Lopez, 482 F.3d at 1076. Plaintiff has failed to allege sufficient 24 facts for the Court to reasonably infer that he was seized in violation of the Fourth Amendment. 25 D. Fifth Amendment 26 Plaintiff alleges violations of the Fifth Amendment. “[T]he Fifth Amendment’s due 27 process clause applies only to the federal government.” Bingue v. Prunchak, 512 F.3d 1169, 1 Fifth Amendment does not apply. 2 E. Due Process 3 Plaintiff contends that right to due process was violated by Defendants Holt and 4 Dominguez filing a false police report and Defendant Doe’s review of the manufactured 5 evidence and the withholding of the body cam footage showing that the officers had doubts 6 which was not recorded in their reports. 7 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 8 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 9 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due 10 process clause of the Fourteenth Amendment protects two distinct but related rights: procedural 11 due process and substantive due process. Albright v. Oliver, 510 U.S. 266, 272 (1994). 12 The substantive protections of the due process clause bar certain governmental actions 13 regardless of the fairness of the procedures that are used to implement them. Cty. of Sacramento 14 v. Lewis, 523 U.S. 833, 840 (1998). Therefore, the substantive protections of the due process 15 clause are intended to prevent government officials from abusing their power or employing it as 16 an instrument of oppression. Lewis, 523 U.S. at 846. The Supreme Court has held that “the 17 substantive component of the Due Process Clause is violated by executive action only when it 18 ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’ ” 19 Id. at 847. “[O]nly the most egregious official conduct can be said to be arbitrary in a 20 constitutional sense.” Brittain v. Hansen, 451 F.3d 982, 990 (9th Cir. 2006) (quoting Lewis, 523 21 U.S. at 846). 22 Plaintiff’s first cause of action alleges that his due process rights were violated by the 23 submission of the false police reports which did not include the information that the officers had 24 doubt which resulted in a criminal complaint being filed and Plaintiff being wrongfully 25 incarcerated. To the extent that Plaintiff is seeking to base his claim on the submission of false 26 police reports, the Due Process Clause itself does not contain any language that grants a broad 27 right to be free from false accusations, but guarantees certain procedural protections to defend 1 first cause of action alleging that the police reports were false fails to state a cognizable claim for 2 violation of the Due Process Clause. 3 In order to state a cause of action for a deprivation of due process, a plaintiff must first 4 identify a life, liberty, or property interest for which the protection is sought. Wilkinson, 545 5 U.S. at 221; Brittain, 451 F.3d at 991. Here, Plaintiff is arguing that he was deprived of his 6 freedom for 180 days, which is sufficient to allege a protected interest. But it is also apparent 7 that Plaintiff received due process. He was changed with a criminal complaint and the charges 8 were ultimately tried by jury. 9 1. Tampering with Evidence 10 Plaintiff’s seventh cause of action alleges tampering with evidence. Plaintiff contends 11 that Defendant Alvarez knowingly used the “clipped” video footage during trial to gain an unjust 12 conviction. “[T]here is a clearly established constitutional due process right not to be subjected 13 to criminal charges on the basis of false evidence that was deliberately fabricated by the 14 government.” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001). To state a claim 15 for fabrication of evidence, at a minimum the plaintiff must allege “at least one of the following 16 two propositions: (1) Defendants continued their investigation of [the plaintiff] despite the fact 17 that they knew or should have known that he was innocent; or (2) Defendants used investigative 18 techniques that were so coercive and abusive that they knew or should have known that those 19 techniques would yield false information.” Devereaux, 263 F.3d at 1076. 20 Here, Plaintiff has not alleged that any evidence was fabricated against him. The 21 substance of Plaintiff’s tampering claim is unclear. It would appear that the substance of 22 Plaintiff’s claim is that the officers expressed some type of doubt during his arrest and did not 23 record such in their police reports. While Plaintiff alleges that there was a “clipped” video cam 24 recording, he also alleges that the video was played at trial and it apparently included the 25 evidence that he contends was clipped from the recording. 26 In this instance, Plaintiff appears to be asserting a claim that potentially exculpatory 27 evidence, the video tape in which the officers expressed doubt, was not disclosed. Under Brady 1 disclose exculpatory evidence to criminal defendants. To state a Brady claim, “the plaintiff must 2 allege that (1) the withheld evidence was favorable either because it was exculpatory or could be 3 used to impeach, (2) the evidence was suppressed by the government, and (3) the nondisclosure 4 prejudiced the plaintiff.” Smith v. Almada, 640 F.3d 931, 939 (9th Cir. 2011). In addressing the 5 prejudice prong, “the Supreme Court has stated that ‘strictly speaking, there is never a real 6 ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability 7 that the suppressed evidence would have produced a different verdict.’ ” Smith, 640 F.3d at 939 8 (quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)). 9 Here, it is not clearly alleged that any material exculpatory evidence was withheld. Even 10 assuming that Plaintiff had alleged that evidence of the officers’ doubt was withheld, the 11 evidence was presented at trial and the jury found Plaintiff not guilty on the charges. Therefore 12 there is not a reasonably possibility that the suppressed evidence would have produced a 13 different verdict. Plaintiff has failed to state a Brady claim. 14 2. Defamation 15 Plaintiff’s sixth cause of action alleges defamation. In Paul v. Davis, the Supreme Court 16 rejected the argument that the Due Process Clause protected the reputation of an individual. 424 17 U.S. 693, 706 (1976) (“the Court has never held that the mere defamation of an individual, 18 whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of 19 procedural due process absent an accompanying loss of government employment”). “Rather his 20 interest in reputation is simply one of a number which the State may protect against injury by 21 virtue of its tort law, providing a forum for vindication of those interests by means of damages 22 actions.” Paul, 424 U.S at 712. Absent a change in status, “any harm or injury to that interest . . 23 . inflicted by an officer of the State, does not result in a deprivation of any ‘liberty’ or ‘property’ 24 recognized by state or federal law.” Id. 25 “[T]here is no constitutional protection for the interest in reputation.” WMX Techs., Inc. 26 v. Miller, 197 F.3d 367, 373 (9th Cir. 1999). To state a claim under § 1983, the plaintiff “must 27 show that the stigma was accompanied by some additional deprivation of liberty or property.” 1 plus” test. Under the “stigma-plus” test, Plaintiffs must allege a loss of a recognizable property 2 or liberty interest in conjunction with the allegation that they suffered injury to reputation. 3 Miller, 355 F.3d at 1179; Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991), rev’d on other 4 grounds, 963 F.2d 1220, 1235 n.6 (9th Cir. 1992)). Additionally, the “stigma-plus” test requires 5 that the defamation be accompanied by an injury directly caused by the state, rather than an 6 injury caused by the act of some third party in reaction to the State’s defamatory statements. 7 Mazzeo v. Gibbons, 649 F.Supp.2d 1182, 1197 (D. Nev. 2009); Douglas v. Oregonian Pub. Co., 8 465 F. App’x 714, 715 (9th Cir. 2012) (unpublished); Ooley v. Citrus Heights Police Dep’t, 603 9 F. App’x 628, 629 (9th Cir. 2015) (unpublished). Under the test, a plaintiff must either show that 10 “injury to reputation was inflicted in connection with a federally protected right” or that “injury 11 to reputation caused the denial of a federally protected right.” Herb Hallman Chevrolet, Inc. v. 12 Nash–Holmes, 169 F.3d 636, 645 (9th Cir. 1999). 13 “In order to state a due process claim, [the plaintiff] must allege that the defendants’ 14 statements were substantially false.” Campanelli v. Bockrath, 100 F.3d 1476, 1484 (9th Cir. 15 1996). Here, Plaintiff alleges injury to reputation but he fails to identify any false statements 16 made by the named defendants. While Plaintiff alleges that Defendants Holt and Dominguez 17 expressed some doubt about elements some of the crimes for which he was arrested and charged, 18 his defamation claim is based on statements of fabricated crimes made by the Porterville Police 19 Department, the Tulare County Sheriff’s Office, and department personnel. Plaintiff has failed 20 to identify any false statement that was made to the public by any named defendant or to link the 21 named defendants to any statement that was made to the public. Plaintiff has failed to state a 22 plausible claim for defamation in violation of the Fourteenth Amendment. 23 F. Conspiracy 24 Plaintiff’s second cause of action alleges a conspiracy between Defendants Holt, 25 Dominguez and Doe. In the context of conspiracy claims brought pursuant to section 1983, a 26 complaint must “allege [some] facts to support the existence of a conspiracy among the 27 defendants.” Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992); Karim- 1 allege that defendants conspired or acted jointly in concert and that some overt act was done in 2 furtherance of the conspiracy. Sykes v. California, 497 F.2d 197, 200 (9th Cir. 1974). 3 A conspiracy claim brought under section 1983 requires proof of “an agreement or 4 meeting of the minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th 5 Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540- 6 41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional right, Hart v. 7 Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 8 866 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each participant in the conspiracy need not 9 know the exact details of the plan, but each participant must at least share the common objective 10 of the conspiracy.” Franklin, 312 F.3d at 441 (quoting United Steel Workers, 865 F.2d at 1541). 11 Plaintiff has not alleged any facts supporting the existence of a conspiracy between 12 Defendants. While Plaintiff alleges that Defendants Holt and Dominguez drove their individual 13 department vehicles to Strathmore not knowing who Plaintiff was, and that their reports did not 14 include their doubt, this is insufficient for the Court to infer there was a meeting of the minds to 15 violate Plaintiff’s constitutional rights. Further, in order to state a cognizable claim for relief for 16 conspiracy, Plaintiff must establish that Defendants conspired to violate an underlying 17 constitutional right. Plaintiff has not alleged facts demonstrating that Defendants violated his 18 constitutional rights. Plaintiff’s second cause of action for conspiracy fails to state a plausible 19 claim for relief. 20 G. Malicious Prosecution 21 Plaintiff’s third cause of action alleges a claim for malicious prosecution. A claim for 22 malicious prosecution or abuse of process is not generally cognizable under Section 1983 if a 23 process is available within the state judicial system to provide a remedy. Usher v. City of Los 24 Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citations omitted). The exception is “when a 25 malicious prosecution is conducted with the intent to deprive a person of equal protection of the 26 laws or is otherwise intended to subject a person to denial of constitutional rights.” Id. (citations 27 omitted). In order to prevail on a Section 1983 claim of malicious prosecution, a plaintiff “must 1 did so for the purpose of denying [him] equal protection or another specific constitutional right.” 2 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (citations omitted); see also 3 Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Lacey v. Maricopa County, 4 693 F.3d 896, 919 (9th Cir. 2012). A malicious prosecution claim may be brought against 5 prosecutors or against the individuals who wrongfully caused the prosecution. Smith, 640 F.3d 6 at 938. Probable cause is an absolute defense to malicious prosecution. Lassiter v. City of 7 Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009). 8 In order to state a malicious prosecution claim, Plaintiff must show that the prior 9 proceeding was commenced by or at the direction of the defendant and it was 1) pursued to a 10 legal termination favorable to plaintiff; 2) brought without probable cause; and 3) initiated with 11 malice. Ayala v. Environmental Health, 426 F.Supp.2d 1070, 1083 (E.D. Cal. 2006). For the 12 termination be considered “favorable” to the malicious prosecution plaintiff, it must be reflective 13 of the merits of the action and of the plaintiff’s innocence of the charges. Villa v. Cole, 4 14 Cal.App.4th 1327, 1335 (1992). 15 “The ‘malice’ element of the malicious prosecution tort relates to the subjective intent or 16 purpose with which the defendant acted in initiating the prior action. . . .” Estate of Tucker ex 17 rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Sheldon 18 Appel Co. v. Albert & Oliker, 765 P.2d 498, 503 (1989)). “The California Court of Appeal has 19 emphasized that where malice must be shown, only ‘other, additional evidence” apart from a 20 lack of probable cause, is sufficient.’ ” Estate of Tucker ex rel. Tucker, 515 F.3d at 1032 (9th 21 Cir. 2008) (quoting Swat–Fame, Inc. v. Goldstein, 101 Cal.App.4th 613, 634 (2002). Although 22 Plaintiff alleges that the defendants “clipped” video from body cam footage, there are no facts 23 alleged in the complaint by which the Court could reasonably infer that any defendant prosecuted 24 Plaintiff with malice or without probable cause. 25 Further, Plaintiff has not alleged sufficient facts to state a claim for a violation of his 26 federal rights. Plaintiff alleges that the prosecutor was aware of exonerating evidence, 27 supposedly this clipped footage, and chose to go forward with the prosecution in an attempt to 1 potentially exonerating information and his conclusory allegations of knowledge are insufficient 2 to state a plausible claim. 3 Finally, although Plaintiff alleges that he was found not guilty of certain charges, it 4 appears from complaint and the records of the Tulare Superior Court that he was charged with 5 multiple offenses and was convicted on some of those offenses during the October 2019 trial and 6 still remains in custody on those convictions. Plaintiff has failed to state a cognizable claim for 7 malicious prosecution. 8 H. Abuse of Power and Process 9 Plaintiff’s fourth cause of action alleges abuse of process. Courts find that, to the extent 10 that an abuse of process claim under section 1983 would exist, it would be governed by state 11 law. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994); Hart v. Mannina, 798 F.3d 578, 593 (7th 12 Cir. 2015) Erikson v. Pawnee Cty. Bd. of Cty. Comm’rs, 263 F.3d 1151, 1155 n.5 (10th Cir. 13 2001). The essence of an abuse of process claim is “misuse of the power of the court; it is an act 14 done in the name of the court and under its authority for the purpose of perpetrating an injustice.” 15 Rusheen v. Cohen, 37 Cal.4th 1048, 1057 (2006). To prevail on an abuse of process claim under 16 California law, “a litigant must establish that the defendant (1) contemplated an ulterior motive 17 in using the process, and (2) committed a willful act in the use of the process not proper in the 18 regular conduct of the proceedings.” Rusheen, 37 Cal.4th at 1057. 19 The Second Circuit has held that “[i]n order to state a [§ 1983] claim for abuse of 20 process, a plaintiff must establish that the defendants had an improper purpose in instigating the 21 action . . . [and] that they aimed to achieve a collateral purpose beyond or in addition to his 22 criminal prosecution.” Morales v. City of New York, 752 F.3d 234, 238 (2nd Cir. 2014) 23 (quoting Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003). To the extent that an 24 abuse of process claim would exist under section 1983, the plaintiff must allege facts to assert a 25 constitutional violation. Alvarez Castro v. Negron, 475 F.Supp.2d 147, 152 (D.P.R. 2007). 26 Plaintiff has not alleged any facts that the defendants acted to achieve a collateral purpose 27 beyond or in addition to his criminal prosecution. Plaintiff has also failed to allege facts to assert 1 I. Prosecutorial Immunity 2 Finally, Plaintiff brings this action against Defendant Alvarez for instituting and 3 prosecuting the charges against him. Prosecutors are absolutely immune from liability under 42 4 U.S.C. § 1983 for in initiating a prosecution and in presenting the State’s case. See Imbler v. 5 Pactman, 424 U.S. 409, 431 (1976); see also Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 6 922 (9th Cir. 2004) (“Absolute immunity is generally accorded to judges and prosecutors 7 functioning in their official capacities”); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) 8 (holding that judges and prosecutors are immune from liability for damages under section 1983). 9 Where a prosecutor acts within her authority “ ‘in initiating a prosecution and in presenting the 10 state’s case,’ absolute immunity applies.” Ashelman, 793 F.2d at 1076 (quoting Imbler, 424 11 U.S. at 431); Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005) (“Prosecutors are 12 absolutely immune from liability under § 1983 for their conduct insofar as it is ‘intimately 13 associated’ with the judicial phase of the criminal process.”) 14 IV. 15 CONCLUSION AND ORDER 16 For the reasons discussed, Plaintiff has failed to state a cognizable claim that any named 17 defendant violated his federal rights. Plaintiff shall be granted leave to file an amended 18 complaint to cure the deficiencies identified in this order. See Lopez v. Smith, 203 F.3d 1122, 19 1127 (9th Cir. 2000). 20 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 21 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 22 556 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to 23 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 24 omitted). Further, Plaintiff may not change the nature of this suit by adding new, unrelated 25 claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 26 “buckshot” complaints). 27 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. wOoOe 4:OU VELOPED RMU POO VO ea THe POY AV VE tN 1 | without reference to the prior or superseded pleading.” Local Rule 220. 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Within thirty (30) days from the date of service of this order, Plaintiff shall file 4 an amended complaint; and 5 2. If Plaintiff fails to file an amended complaint in compliance with this order, the 6 Court will recommend to the district judge that this action be dismissed consistent 7 with the reasons stated in this order. 8 9 IT IS SO ORDERED. OF a Se 10 | Dated: _August 24, 2020 _ Of 4 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28