Lozada v. Santa Rosa Police Department ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 EUREKA DIVISION 4 5 VICTOR MELESIO LOZADA, Case No. 20-cv-01896-RMI 6 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 7 v. TO AMEND 8 SANTA ROSA POLICE DEPARTMENT, et al., 9 Defendants. 10 11 Plaintiff, a detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has 12 been granted leave to proceed in forma pauperis (dkt. 5) and has consented to the jurisdiction of a 13 Magistrate Judge (dkt. 4). 14 DISCUSSION 15 Standard of Review 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 18 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 19 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 21 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 22 Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 24 claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement 25 need only “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 26 rests.’”” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in order to state 27 a claim a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide 1 formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 2 enough to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v. Twombly, 3 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 4 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 5 recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can 6 provide the framework of a complaint, they must be supported by factual allegations. When there 7 are well-pleaded factual allegations, a court should assume their veracity and then determine 8 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 9 (2009). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 11 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 12 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 13 487 U.S. 42, 48 (1988). 14 Legal Claims 15 Plaintiff alleges that he was improperly arrested and the arresting police officer falsified 16 information, and he seeks monetary damages. A claim of unlawful arrest is cognizable under § 17 1983 for violation of the Fourth Amendment’s prohibition against unreasonable search and seizure 18 if the complaint alleges that the arrest was without probable cause or other justification. See 19 Pierson v. Ray, 386 U.S. 547, 555-558 (1967); Yousefian v. City of Glendale, 779 F.3d 1010, 1014 20 n.1. (9th Cir. 2015) (absence of probable cause is essential element of § 1983 false arrest claim). 21 And a claim of unlawful detention/imprisonment is cognizable under § 1983 for violation of the 22 Fourteenth Amendment’s guarantee of due process if the arrest was without probable cause or 23 other justification and the defendant knew or should have known that plaintiff was entitled to 24 release. See Baker v. McCollan, 443 U.S. 137, 142-145 (1979); Lee v. County of Los Angeles, 250 25 F.3d 668, 684-85 (9th Cir. 2001) (plaintiff stated due process claim where police allegedly 26 arrested plaintiff’s son without probable cause, detained him without verifying that he was the 27 person for whom police had an arrest warrant, despite his obvious mental incapacity, and detained 1 years); but cf. Gant v. County of Los Angeles, 772 F.3d 608, 619, 621-22 (9th Cir. 2014) (because 2 plaintiff did not inform defendants of his mistaken identity and because he received a prompt 3 hearing, his due process claim based on unlawful post-arrest detention failed). 4 In order to recover damages for an allegedly unconstitutional conviction or imprisonment, 5 or for other harm caused by actions whose unlawfulness would render a conviction or sentence 6 invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed 7 on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to 8 make such determination, or called into question by a federal court’s issuance of a writ of habeas 9 corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim for damages bearing that 10 relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 11 1983. Id. at 487. 12 In Wallace v. Kato, 549 U.S. 384, 393 (2007), the Court held that the “Heck rule for 13 deferred accrual is called into play only when there exists ‘a conviction or sentence that has not 14 been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’” Id. at 391-93 (quoting 15 Heck, 512 U.S. at 486-87). The Heck rule delays accrual only if there is an existing conviction on 16 the date the statute of limitations begins to run, which in the case of wrongful arrest or wrongful 17 imprisonment claims is when the plaintiff's confinement is no longer without legal process, but 18 rather becomes a confinement pursuant to legal process – that is, for example, when he or she is 19 bound over by a magistrate or arraigned on charges. Id. at 389-90. The Court stated that the 20 contention that “an action which would impugn an anticipated future conviction cannot be brought 21 until that conviction occurs and is set aside” goes “well beyond Heck” and rejected it. Id. at 393 22 (italics in original). Although the Court was only considering when the statute of limitations began 23 running on a false arrest/false imprisonment claim, the discussion quoted suggests that Heck does 24 not apply if there is no extant conviction – for instance, if plaintiff has only been arrested or 25 charged. 26 If a plaintiff files a § 1983 false arrest claim before he or she is convicted, or files any other 27 claim related to rulings that likely will be made in a pending or anticipated criminal trial, it is 1 until the criminal case or the likelihood of a criminal case is ended. Id. at 393-94. If the plaintiff is 2 then convicted, and if the stayed civil suit would impugn that conviction, Heck requires dismissal; 3 otherwise, the case may proceed. Id. at 394. 4 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where official 5 policy or custom causes a constitutional tort, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 6 690 (1978); however, a city or county may not be held vicariously liable for the unconstitutional 7 acts of its employees under the theory of respondeat superior. See Board of Cty. Comm'rs. of 8 Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. To impose municipal 9 liability under § 1983 for a violation of constitutional rights resulting from governmental inaction 10 or omission, a plaintiff must show: “(1) that he possessed a constitutional right of which he or she 11 was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 12 indifference to the plaintiff's constitutional rights; and (4) that the policy is the moving force 13 behind the constitutional violation.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 14 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal 15 quotation marks omitted). 16 Plaintiff states that he was improperly arrested on November 12, 2019, after the arresting 17 officer falsified information so Plaintiff would be charged with a felony. He argues that the initial 18 allegations involved theft, but he was charged with robbery. Plaintiff is currently in custody. 19 Plaintiff cannot obtain money damages unless the charges were dropped, or the conviction has 20 been expunged. If the prosecution is ongoing, this case must be stayed until the criminal case is 21 finished. The complaint is dismissed with leave to amend to provide more information about the 22 status of the criminal case and if plaintiff is in custody related to this arrest. 23 Plaintiff also names the Santa Rosa Police Department as defendant. The court assumes 24 that Plaintiff wishes to name Sonoma County as defendant. To properly plead a claim under 25 Monell, it is insufficient to allege simply that a policy, custom, or practice exists that caused the 26 constitutional violations. AE v. County of Tulare, 666 F.3d 631, 636-37 (9th Cir. 2012). Pursuant 27 to the more stringent pleading requirements set forth in Iqbal, 556 U.S. at 670, and Twombly, 550 1 specific nature of the alleged policy, custom or practice to allow the defendant to effectively 2 || defend itself, and these facts must plausibly suggest that plaintiff is entitled to relief. AE, 666 F.3d 3 at 636-37 (citing Starr, 652 F.3d at 1216, which summarized new pleading standards derived from 4 || Igbal, Twombly and related Supreme Court decisions). In an amended complaint, Plaintiff should 5 provide more information if he seeks to present a Monell claim. He must also add Sonoma County 6 as defendant. 7 CONCLUSION 8 The complaint is DISMISSED with leave to amend in accordance with the standards set 9 forth above. The amended complaint must be filed within twenty-eight (28) days of the date this 10 || order is filed and must include the caption and civil case number used in this order and the words 11 AMENDED COMPLAINT on the first page. Because an amended complaint completely replaces 12 || the original complaint, Plaintiff must include in it all the claims he wishes to present. See Ferdik v. 5 13 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the original 14 || complaint by reference. Failure to amend within the designated time will result in the dismissal of 3 15 this case. a 16 It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed 3 17 of any change of address by filing a separate paper with the clerk headed “Notice of Change of 18 || Address,” and must comply with the court's orders in a timely fashion. Failure to do so may result 19 in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 20 || 41(b). 21 IT IS SO ORDERED. 22 || Dated: April 17, 2020 23 Me Z 24 RQBERT M. ILLMAN 25 United States Magistrate Judge 26 27 28