(PS)Harding v. De Canio ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRENT LEE HARDING, Case No. 2:21-cv-02239-KJM-JDP (PS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 AARON DE CANIO, et al., ECF No. 2 15 Defendants. SCREENING ORDER THAT PLAINTIFF: 16 (1) STAND BY HIS COMPLAINT SUBJECT TO A 17 RECOMMENDATION OF DISMISSAL, OR 18 (2) FILE AN AMENDED 19 COMPLAINT 20 ECF No. 1 21 THIRTY-DAY DEADLINE 22 23 24 Plaintiff Brent Lee Harding alleges that defendants, three detectives of the Rancho 25 Cordova Police Department, violated his right to due process by failing to timely execute, and to 26 provide him notice of, several search warrants. ECF No. 1 at 3-6. Plaintiff’s allegations fail to 27 state a federal claim. I will give him a chance to amend his complaint before recommending 28 1 dismissal. I will also grant plaintiff’s application to proceed in forma pauperis, ECF No. 2, which 2 makes the showing required by 28 U.S.C. §§ 1915(a)(1) and (2). 3 Screening and Pleading Requirements 4 Plaintiff’s complaint is subject to screening under 28 U.S.C. § 1915(e). That statute 5 requires the court to dismiss any action filed by a plaintiff proceeding in forma pauperis that is 6 frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks 7 monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 Analysis 26 Plaintiff, a pretrial detainee confined in county jail, alleges that defendants executed seven 27 search warrants—one to search his vehicle and six seeking to search electronic devices. ECF No. 28 1 at 1, 3-5. He appears to contend that defendants failed to provide him timely notice that these 1 warrants had been executed as required by state law. Id. at 4-6. He also appears to allege that at 2 least two of the warrants were not timely executed. Id. at 5-6. Plaintiff’s complaint vaguely 3 references Due Process and that the defendants are state actors, suggesting that he is attempting to 4 state a federal constitutional claim under 42 U.S.C. § 1983. Delay in executing a search warrant 5 can raise a constitutional issue if it causes the probable cause upon which the warrant was issued 6 to cease to exist. United States v. Grubbs, 547 U.S. 90, n.2 (2006); United States v. Gann, 732 7 F.2d 714, 722 (9th Cir. 1984) (“The test for judging the timeliness of a search warrant is whether 8 there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the 9 items to be seized are still on the premises.”). 10 Here, plaintiff does not specifically allege that probable cause terminated during the delay 11 in executing the warrants. Furthermore, defendants’ alleged failure to comply with California 12 law’s notice requirement does not give rise to a claim under section 1983. See Ove v. Gwinn, 264 13 F.3d 817, 824 (9th Cir. 2001) (“To the extent that the violation of a state law amounts to the 14 deprivation of a state-created interest that reaches beyond that guaranteed by the federal 15 Constitution, Section 1983 offers no redress.”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir 16 1996) (holding that a plaintiff cannot “transform a state-law issue into a federal one merely by 17 asserting a violation of due process”). 18 Moreover, to the extent plaintiff’s challenges to the validity of the warrants relate to 19 ongoing criminal proceedings, his claims are barred by the abstention doctrine set forth in 20 Younger v. Harris, 401 U.S. 37 (1971). Under that doctrine, federal courts are generally 21 prohibited from interfering with ongoing, state court criminal proceedings. 22 Accordingly, plaintiff’s complaint cannot proceed past screening. I will allow plaintiff a 23 chance to amend his complaint before recommending that this action be dismissed. Should he 24 choose to amend the complaint, the amended complaint should be brief, Fed. R. Civ. P. 8(a), but 25 must state what each named defendant did that led to the deprivation of plaintiff’s rights. See 26 Iqbal, 556 U.S. at 678. Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim to 27 relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Plaintiff should note 28 that a short, concise statement of the allegations in chronological order will assist the court in 1 | identifying his claims. Plaintiff should name each defendant and explain what happened, 2 | describing personal acts by each individual defendant that resulted in the violation of □□□□□□□□□□□ 3 | rights. Plaintiff should also describe any harm he suffered from the violation of his rights. 4 | Plaintiff should not add unrelated issues. See Fed. R. Civ. P. 18; George v. Smith, 507 F.3d 605, 5 | 607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in different suits 6] ....”). 7 An amended complaint will supersede the current complaint. See Lacey v. Maricopa 8 | Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint 9 | will need to be complete on its face without reference to the prior pleading. See E.D. Cal. Local 10 | Rule 220. Once an amended complaint is filed, the current complaint no longer serves any 11 function. Therefore, in an amended complaint, as in an original complaint, plaintiff will need to 12 | assert each claim and allege each defendant’s involvement in sufficient detail. The amended 13 | complaint should be titled “First Amended Complaint” and refer to the appropriate case number. 14 | If plaintiff does not file an amended complaint, I will recommend that this action be dismissed. 15 Accordingly, it is hereby ORDERED that: 16 1. Plaintiffs application to proceed in forma pauperis, ECF No. 2, is granted. 17 2. Within thirty days from the service of this order, plaintiff must either file an 18 | Amended Complaint or advise the court that he wishes to stand by his current complaint. If he 19 | selects the latter option, I will recommend that this action be dismissed. 20 3. Failure to comply with this order will result in the dismissal of this action. 21 IT IS SO ORDERED. 23 ( q oy — Dated: _ June 15, 2022 □□ 24 JEREMY D,. PETERSON 95 UNITED STATES MAGISTRATE JUDGE 26 27 28