Rodrick C Reed v Ty Labbe et al - Document 32

Court Description:

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Oswald Parada: (see document image for specifics). IT IS SO ORDERED. (ad)

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 RODRICK C. REED, v. Plaintiff, 13 14 15 TY LABBE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV 10-8315-SVW (OP) MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 16 17 I. 18 PROCEEDINGS 19 On November 3, 2010, Rodrick C. Reed (“Plaintiff”) filed a pro se Civil 20 Rights Complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown 21 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 22 29 L. Ed. 2d 619 (1971) (“Complaint”), after having paid the requisite filing fee. 23 (ECF No. 1.) The named Defendants are as follows: (1) Ty Labbe, investigative 24 agent, Los Angeles County Sheriff’s Department/Federal Bureau of Investigation 25 (“FBI”); (2) David Hand, FBI; (3) Carlos Quezada, investigative agent, L.A. 26 County Sheriff’s Dept.; (4) John Sieder, investigative agent, Drug Enforcement 27 Administration (“DEA”); (5) Groenow, investigative agent, L.A. County Sheriff’s 28 Dept.; (6) Bradley Clemmer, investigative agent, DEA; (7) Heather Thomas, 1 1 Verizon Telephone Company; (8) Verizon Telephone Company; (9) David 2 Stinnett, intelligence analyst/investigative agent, DEA; (10) Kevin Pang, special 3 agent, DEA; (11) Steven Woodland; (12) Charles Duncan, investigative agent, 4 L.A. County Sheriff’s Dept.; (13) Laverne Mathews, investigative agent, DEA; 5 (14) Dennis Barpon, investigative agent, L.A. County Sheriff’s Dept.; (15) Sandra 6 Lopez, investigative agent, DEA; (16) William Tackaberry, investigative agent, 7 L.A. County Sheriff’s Dept.; (17) Phillip Marquez, investigative agent, L.A. 8 County Sheriff’s Dept.; (18) Joe Moussiauy, investigative agent, DEA; (19) John 9 Maxwell, investigative agent, L.A. County Sheriff’s Dept.; (20) Jorre Valdez, 10 investigative agent, L.A. County Sheriff’s Dept.; (21) Jeffrey Boset, investigative 11 agent, L.A. County Sheriff’s Dept.; (22) Quilnes Rodriguez, investigative agent, 12 L.A. County Sheriff’s Dept.; (23) Jerry Ortiz, investigative agent, L.A. County 13 Sheriff’s Dept.; (24) Chris Cline, investigative agent, DEA; (25) Grey Cunneis, 14 investigative agent, DEA; (26) Tom Cielecy, investigative agent, DEA; (27) DEA, 15 California Division; (28) FBI, California Division; (29) L.A. County Sheriff’s 16 Dept.; (30) Debra Yang, United States Attorney; (31) Jacqueline Chooljian, 17 Assistant United States Attorney; (32) Janet Hudson, Assistant United States 18 Attorney; (33) Office of the United States Attorney; and (34) United States of 19 America. All individual Defendants are being sued in their individual and official 20 capacities. Plaintiff seeks damages, as well as injunctive and declaratory relief. 21 On June 7, 2011, the federal agency and employee defendants (“Federal 22 Defendants”) filed a Motion to Dismiss the Complaint. (ECF No. 10.) On August 23 16, 2011, Plaintiff filed an Opposition to the Motion to Dismiss. (ECF No. 27.) 24 On August 29, 2011, Federal Defendants filed a Reply to Plaintiff’s Opposition. 25 (ECF No. 30.) 26 On June 6, 2011, Heather Thomas and Cellco Partnership, dba Verizon 27 Wireless (“Verizon Defendants”), filed a Motion to Quash Plaintiff’s Attempted 28 2 1 Service of Process. (ECF No. 8.) Plaintiff’s Opposition to the Motion to Dismiss 2 also addressed the issue of defective service. (ECF No. 27 at 7-12.) 3 II. 4 PLAINTIFF’S ALLEGATIONS 5 A. Plaintiff’s Claims. 6 Plaintiff’s claims arise out of the issuance of wiretap orders and the 7 interception of telephone conversations which were used to prosecute him for 8 federal drug and firearm violations in this District, case number EDCR 03-849 VAP.1 10 In Claim 1, Plaintiff alleges a statutory violation of the Wiretap Act (18 11 U.S.C. §§ 2510, et seq.) against Federal Defendants Sieder, Clemmer, Pang, 12 Cielecy, Labbe, and Hand, in addition to Defendants Verizon Wireless, Quezada, 13 and Duncan based on conduct that took place between February 26, 2003, and 14 March 28, 2003. (Compl. ¶¶ 45-49.) 15 In Claim 2, Plaintiff alleges additional statutory violations of the Wiretap 16 Act against Federal Defendants Cielecy, Hand, Labbe, Clemmer, and Sieder, in 17 addition to Defendant Duncan based on conduct that took place on May 8, 2003. 18 (Id. ¶¶ 50-51.) 19 In Claim 3, although unclear, Plaintiff appears to allege a statutory violation 20 of the Wiretap Act and civil conspiracy against Federal Defendants Labbe, Hand, 21 Sieder, Clemmer, and Cielecy, in addition to Defendants Duncan, Thomas, and 22 Verizon Wireless based on conduct that took place between April 4, 2003, and 23 April 16, 2003. (Id. ¶¶ 52-54.) 24 25 1 On July 28, 2005, Plaintiff was convicted after a jury trial. (EDCR 03-84VAP ECF Nos. 1001, 1002.) On January 17, 2006, Defendant was sentenced to 27 life imprisonment in the custody of the Bureau of Prisons. (Id. ECF No. 1190.) 28 The Court takes judicial notice of its own records. 26 3 1 In Claim 4, Plaintiff alleges a statutory violation of the Wiretap Act and 2 civil conspiracy against Federal Defendants Labbe, Hand, Sieder, Clemmer, 3 Stinnett, Pang, Woodland, Matthews, Moussiaux, Cline, Conners, and Cielecy, in 4 addition to Defendants Starkey, Quezada, Duncan, Groenow, Thomas, Verizon 5 Wireless, Barpon, Tackaberry, Marquez, Maxwell, Valdez, Bosket, Rodriguez, 6 and Ortiz based on conduct that took place between April 4, 2003, and April 16, 7 2003. (Id. ¶¶ 55-57.) 8 In Claim 5, Plaintiff alleges statutory violations of the Wiretap Act, the Pen 9 Register Statutes (18 U.S.C. §§ 3121, et seq.), civil conspiracy, and fraud against 10 Federal Defendants Matthews, Labbe, Hand, and Sieder, in addition to Defendants 11 Thomas, Verizon Wireless, and Starkey based on conduct that took place between 12 April 4, 2003, and April 16, 2003. (Id. ¶¶ 58-67.) 13 In Claim 6, Plaintiff alleges statutory violations of the Wiretap Act, the Pen 14 Register Statutes, and civil conspiracy against Federal Defendants Labbe and 15 Hand, in addition to Defendants Duncan, Thomas, and Verizon Wireless based on 16 conduct that took place on or about January 24, 2003. (Id. ¶¶ 68-74.) 17 In Claim 7, Plaintiff alleges violations of the First and Fourth Amendment 18 pursuant to 42 U.S.C. § 1983 and civil conspiracy against Federal Defendants 19 Labbe, Hand, Clemmer, Sieder, Stinnett, Pang, Woodland, Matthews, Moussiaux, 20 Cline, Conners, and Cielecy, in addition to Defendants Duncan, Thomas, Verizon 21 Wireless, Barpon, Tackaberry, Marquez, Maxwell, Valdez, Bosket, Rodriguez, 22 and Ortiz. (Id. ¶¶ 75-77.) 23 In Claim 8, Plaintiff alleges a Fifth Amendment due process violation 24 pursuant to 42 U.S.C. § 1983 against Federal Defendants Yang, the United States 25 26 27 28 4 1 Attorney’s Office, the United States of America, Labbe, Hand, Sieder, Clemmer, 2 and Matthews, in addition to Defendant Duncan. (Id. ¶¶ 78-80.)2 3 In Claim 9, Plaintiff alleges perjury and the offering of false declarations in 4 violation of 18 U.S.C. § 1623 (a criminal statute3) against Federal Defendants 5 Labbe, Hand, Sieder, Clemmer, Stinnett, Pang, Woodland, Matthews, Moussiaux, 6 Cline, Conners, and Cielecy, in addition to Defendants Quezada, Thomas, Verizon 7 Wireless, Starkey, Duncan, Barpon, Tackaberry, Marquez, Maxwell, Valdez, 8 Bosket, Rodriguez, and Ortiz. (Id. ¶¶ 81-83.) 9 In Claim 10, Plaintiff alleges a vague conspiracy claim pursuant to 18 10 U.S.C. § 241 (a criminal statute4) against all defendants based on conduct that took 11 place between April 4, 2003, and April 16, 2003, and in July 2005. (Id. ¶¶ 84-86.) 12 In Claim 11, alleges a vague claim of deprivation of rights pursuant to 18 13 U.S.C. § 242 (a criminal statute5) against all defendants based on conduct that took 14 place between April 4, 2003, and April 16, 2003, and in July 2005. (Id. ¶¶ 87-89.) 15 16 17 18 19 2 The Court notes that Plaintiff erroneously labeled paragraph 78 as paragraph 76. In addition, Plaintiff has omitted a paragraph 79. 3 There is no private right of action or basis for a civil suit based on violations of criminal statutes. See Allen v. Gold Country Casino, 464 F.3d 1044, 21 1048 (9th Cir. 2006) (affirming dismissal of claims under 18 U.S.C. §§ 241 and 22 242 as criminal statutes not giving rise to civil liability); Peabody v. United States, 394 F.2d 175, 177 (9th Cir. 1968). 23 4 There is no private right of action or basis for a civil suit based on 24 violations of criminal statutes. See Allen, 464 F.3d at 1048; Peabody, 394 F.2d at 25 177. 26 5 There is no private right of action or basis for a civil suit based on 27 violations of criminal statutes. See Allen, 464 F.3d at 1048; Peabody, 394 F.2d at 28 177. 20 5 1 In Claim 12, Plaintiff alleges unlawful interception of telephone 2 conversations pursuant to 18 U.S.C. § 306, 902, 903, 30046 against Federal 3 Defendants Labbe, Hand, Sieder, Clemmer, Stinnett, Pang, Woodland, Moussiaux, 4 Cline, and Conners, in addition to Defendants Quezada, Groenow, Thomas, 5 Verizon Wireless, Starkey, Duncan, Barpon, Tackaberry, Marquez, Maxwell, 6 Valdez, Bosket, Rodriguez, and Ortiz based on conduct that took place between 7 April 4, 2003, and April 16, 2003. (Id. ¶¶ 92-93.) 8 In Claim 13, Plaintiff alleges a violation of his common law right to privacy 9 against all Defendants. (Id. ¶ 94.) 10 In Claim 14, Plaintiff alleges a common law claim of abuse of process 11 against all Defendants. (Id. ¶¶ 95-96.) 12 In Claim 15, Plaintiff alleges a common law conspiracy against all 13 Defendants. (Id. ¶ 97.) 14 B. Factual Background. 15 The crux of Plaintiff’s allegations is that Defendants used wiretap orders 16 issued by a district judge of this Court to unlawfully intercept telephone 17 conversations not covered by the orders. Plaintiff further alleges that law 18 enforcement personnel provided faulty affidavits in seeking the wiretap orders, 19 disregarded the “rules en[]umerated in the Court Orders and Supervising 20 Attorney’s Memorandum,” failed to preserve wiretap data and destroyed evidence 21 of their wrongdoings, and offered misleading testimony at Plaintiff’s criminal trial 22 regarding the wiretaps and evidence thereof. 23 Before his criminal trial, Plaintiff filed two motions to suppress the wiretap 24 evidence, asserting similar arguments he raises in the current Complaint. After 25 hearings before the trial court, the motions were denied. United States v. Reed, 26 27 6 Sections 306, 902, and 903 do not exist in the United States Code and 28 section 3004 is entitled “Decorum in the court room.” 6 1 575 F.3d 900, 907 (9th Cir. 2009). On appeal of his conviction, Plaintiff again 2 challenged the wiretap evidence, but his claims failed. The Ninth Circuit held as 3 follows: (1) the Government’s wiretap application satisfied the necessity 4 requirement; (2) the district court did not err in finding that the Government had 5 not intercepted telephone calls on a line for which there was no court order; (3) the 6 Government was not required to seal call data content, and it timely sealed the 7 wiretap recordings under 18 U.S.C. § 2518(8); and (4) the Government did not 8 violate the statutory wiretap monitoring requirements of 18 U.S.C. § 2518(5). Id. 9 at 904-05, 908-19. 10 C. Motion to Dismiss Pursuant to Rule 12 (b)(6). 11 Federal Defendants move to dismiss the Complaint pursuant to Rules 4(m), 12 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure on the 13 following grounds: (1) the Court lacks subject matter jurisdiction over any 14 constitutional tort claims against Federal Defendants because the United States has 15 not waived its sovereign immunity; (2) the Court lacks subject matter jurisdiction 16 over any claims under the Federal Tort Claims Act because Plaintiff failed to 17 exhaust administrative remedies; (3) the United States of America is the only 18 proper defendant under the Federal Tort Claims Act; (4) Plaintiff’s Bivens claims 19 against the federal prosecutors are barred by prosecutorial immunity; (5) Plaintiff 20 has not properly pled a Bivens claim; (6) Federal Defendants are entitled to 21 qualified immunity against Plaintiff’s Bivens claims; (7) the entire action is Heck22 barred;7 and (8) Plaintiff has not properly effected service of the Complaint on any 23 federal defendant. (ECF No. 10 at 1-2.)8 24 25 7 26 (1994). 27 8 28 Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 Federal Defendants also listed the statute of limitations under the Federal (continued...) 7 1 Defendants Heather Thomas and Verizon Wireless have also move to quash 2 Plaintiff’s attempted service of process. (ECF No. 8.) 3 III. 4 STANDARD OF REVIEW 5 Complaints such as Plaintiff’s are subject to the court’s sua sponte review 6 under provisions of the Prison Litigation Reform Act of 1995 (“PLRA”). See 28 7 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the 8 court finds that it (1) is frivolous or malicious, (2) fails to state a claim on which 9 relief may be granted, or (3) seeks monetary relief from a defendant immune from 10 such relief. See Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en 11 banc); 28 U.S.C. § 1915A(b) (prisoner complaints against government 12 defendants).9 13 14 8 (...continued) 15 Tort Claims Act as a grounds for dismissal but does not include argument to this 16 effect in the motion. As a result, it is unclear whether Federal Defendants intended to raise this ground in the motion to dismiss. Thus, the Court does not 17 consider this issue. 18 9 Initial screening of complaints is covered by overlapping provisions of the 19 PLRA. Lopez, 203 F.3d at 1126-27 & n.7. Screening of complaints by plaintiffs 20 (prisoner or non-prisoner) who seek to proceed in forma pauperis is governed by 21 28 U.S.C. § 1915(e)(2). Lopez, 203 F.3d at 1126-27 & n.7; Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (§ 1915 applies to all applicants for in 22 forma pauperis status, prisoner or non-prisoner). Under 28 U.S.C. § 1915A, courts 23 are directed to review, as soon as practicable, “a complaint in a civil action in 24 which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, § 1915A screening 25 applies to prisoner complaints even if the filing fee has been paid in full. See, e.g., 26 Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (§ 1915 governs proceedings in forma pauperis and § 1915A applies to civil complaints by prisoners against 27 governmental defendants regardless of whether the prisoner has paid a filing fee); 28 (continued...) 8 1 PLRA review for failure to state a claim applies the same standard applied 2 in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of 3 the Federal Rules of Civil Procedure. See Barren v. Harrington, 152 F.3d 1193, 4 1194 (9th Cir. 1998). A Rule 12(b)(6) motion tests the formal sufficiency of a 5 statement of claim for relief. A complaint may be dismissed as a matter of law for 6 failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or 7 (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica 8 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A plaintiff’s allegations of 9 material fact must be taken as true and construed in the light most favorable to the 10 plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Since 11 Plaintiff is appearing pro se, the Court must construe the allegations of the 12 complaint liberally and must afford Plaintiff the benefit of any doubt. See Karim13 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 14 Under Rule 8(a)(2) of the Federal Rule of Civil Procedure, a complaint must 15 contain a “short and plain statement of the claim showing that the pleader is 16 entitled to relief.” The Supreme Court has explained the pleading requirements of 17 Rule 8(a)(2) and the requirements for surviving a Rule 12(b)(6) motion to dismiss. 18 See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); 19 Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per 20 21 22 23 24 25 26 27 28 9 (...continued) Muhammad v. Ortiz, No. F 04-5534-AWI-WMW-P, 2006 WL 845640, at *11 & n.2 (E.D. Cal. March 30, 2006) (§ 1915A screening applies even if prisoner plaintiff paid full filing fee); Hernandez v. Terhune, No. C 00-0848-WHA(PR), 2000 WL 1847645, at *1 (N.D. Cal. Dec.12, 2000) (Second, Fifth, Sixth, Seventh, and Tenth Circuits have all found that § 1915A applied “even if the prisoner is not proceeding in forma pauperis” ). A third provision governs screening of prisoner complaints about prison conditions not restricted to in forma pauperis actions. See 42 U.S.C. § 1997e(c); Lopez, 203 F.3d at 1126 n.7. 9 1 curiam); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 2 929 (2007); Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). 3 With respect to a plaintiff’s pleading burden, the Supreme Court held that 4 while a complaint does not need detailed factual allegations, “a plaintiff’s 5 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 6 than labels and conclusions, and a formulaic recitation of the elements of a cause 7 of action will not do. Factual allegations must be enough to raise a right to relief 8 above the speculative level on the assumption that all the allegations in the 9 complaint are true (even if doubtful in fact).” Bell Atl., 550 U.S. at 553-56 10 (citations and footnote omitted), abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 11 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) (dismissal under Rule 12(b)(6) is appropriate 12 “only if it is clear that no relief could be granted under any set of facts that could 13 be proved consistent with the allegations.”); see also Iqbal, 129 S. Ct. at 1949; 14 Erickson, 551 U.S. at 93; Moss, 572 F.3d at 968. 15 In order to comply with the requirements of Rule 8(a)(2) and survive a 16 motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient 17 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 18 face.’” Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl., 550 U.S. at 570). “A claim 19 has facial plausibility when the plaintiff pleads factual content that allows the 20 court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Id. (citing Bell Atl., 550 U.S. at 556). This plausibility 22 standard is not a probability requirement, but does ask for more than mere 23 possibility; if a complaint pleads facts “merely consistent with” a theory of 24 liability, it falls short of “the line between possibility and plausibility.” Id. 25 (quoting Bell Atl., 550 U.S. at 557). 26 The Supreme Court has set out a two-pronged approach for reviewing a 27 possible failure to state a claim. Id. at 1949-50; see also Moss, 572 F.3d at 96928 70. First, the reviewing court may identify those statements in a complaint that are 10 1 actually conclusions, even if presented as factual allegations. Id. Such conclusory 2 statements (unlike proper factual allegations) are not entitled to a presumption of 3 truth. Id. In this context it is the conclusory nature of the statements (rather than 4 any fanciful or nonsensical nature) “that disentitles them to the presumption of 5 truth.” Id. at 1951. Second, the reviewing court presumes the truth of any 6 remaining “well-pleaded factual allegations,” and determines whether these factual 7 allegations and reasonable inferences from them plausibly support a claim for 8 relief. Id. at 1950; see also Moss, 572 F.3d at 969-70. 9 The Court is not concerned at this stage with “whether a plaintiff will 10 ultimately prevail” but with whether he is entitled to offer evidence to support his 11 claims. See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 960 (9th Cir. 12 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 13 90 (1974)). However, a complaint consisting of unintelligible, narrative ramblings 14 fails to state a claim for relief. See McHenry v. Renne, 84 F.3d 1172, 1176-79 15 (9th Cir. 1996); see also Awala v. Roberts, No. 07-0179 JSW (PR), 2007 WL 16 174404, at *1 (N.D. Cal. Jan. 22, 2007); Fed. R. Civ. P. 8(a)(1), (2), (d)(1). 17 Although the scope of review generally is limited to the contents of the 18 complaint, the Court may also consider exhibits submitted with the complaint, Hal 19 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th 20 Cir. 1990), and “take judicial notice of matters of public record outside the 21 pleadings,” Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). 22 Exhibits that contradict the allegations of a complaint may fatally undermine those 23 allegations. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), 24 amended by 275 F.3d 1187 (2001) (a plaintiff can “plead himself out of a claim by 25 including . . . details contrary to his claims.”). 26 If the court finds that a complaint should be dismissed for failure to state a 27 claim, the court may dismiss with or without leave to amend. Lopez, 203 F.3d at 28 1126-30. Leave to amend should be granted if it appears that defects can be 11 1 corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. 2 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). If, however, after careful 3 consideration, it is clear that a complaint cannot be cured by amendment, the court 4 may dismiss without leave to amend. Cato, 70 F.3d at 1107-11. 5 IV. 6 DISCUSSION 7 A. The Complaint Is Subject to Dismissal for Failure to State a Bivens 8 Claim Against Federal Defendants in Their Official Capacities. 9 In Claims 7 and 8, Plaintiff alleges violations of the First, Fourth, and Fifth 10 Amendments against Federal Defendants Labbe, Hand, Clemmer, Sieder, Stinnett, 11 Pang, Woodland, Matthews, Moussiaux, Cline, Conners, Yang, Chooljian, 12 Hudson, the United States Attorney’s Office, and the United States of America. 13 (Compl. ¶¶ 75-80.) All Defendants are being sued in their individual and official 14 capacities. (Id. ¶¶ 6-40.) Plaintiff seeks damages, as well as injunctive and 15 declaratory relief. 16 The United States, its agencies, and its employees in their official capacities 17 are absolutely immune from suit on constitutional claims for damages. See, e.g., 18 Pereira v. U.S. Postal Service, 964 F.2d 873, 876-77 (9th Cir. 1992); Daly-Murphy 19 v. Winston, 837 F.2d 348, 355-56 (9th Cir. 1987); see also FDIC v. Meyer, 510 20 U.S. 471, 486-87, 114 S. Ct. 966, 127 L. Ed. 2d 308 (1994). Bivens does not 21 permit suits against the government or its agencies for monetary relief. Cato v. 22 United States, 70 F.3d 1103, 1110-11 (9th Cir. 1995). Thus, to the extent Plaintiff 23 is seeking damages against Federal Defendants in their official capacities, the 24 Complaint is subject to dismissal as to Claims 7 and 8 for failure to state a claim 25 for relief. 26 / / / 27 / / / 28 / / / 12 1 B. The Complaint Is Subject to Dismissal based on Prosecutorial 2 Immunity. 3 In Claim 8, Plaintiff alleges a violation of the Fifth Amendment against 4 Federal Defendants Yang, Chooljian, Hudson, the United States Attorney’s Office, 5 and the United States of America based on their involvement in Plaintiff’s 6 criminal prosecution. (Compl. ¶¶ 75-80.) 7 Prosecutorial immunity protects eligible government officials who perform 8 functions “intimately associated with the judicial phase of the criminal process.” 9 Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976); 10 see also Buckley v. Fitzsimmons, 509 U.S. 259, 269-70, 113 S. Ct. 2606, 125 L. 11 Ed. 2d 209 (1993). “Such immunity applies even if it leaves the genuinely 12 wronged [plaintiff] without civil redress against a prosecutor whose malicious or 13 dishonest action deprives him of liberty.” Ashelman v. Pope, 793 F.2d 1072, 1075 14 (9th Cir. 1986) (internal quotations omitted). A prosecutor is protected by 15 absolute immunity for any actions “if the prosecutor acts within the scope of his or 16 her authority and in a quasi-judicial capacity.” Ybarra v. Reno Thunderbird 17 Mobile Home Vill., 723 F.2d 675, 678 (9th Cir. 1984). 18 Because Defendants’ actions related to the criminal prosecution of Plaintiff, 19 they were acting within the scope of their authority and in a quasi-judicial 20 capacity. As a result, they are shielded from liability on Plaintiff’s constitutional 21 claims based on prosecutorial immunity. Thus, the Complaint is subject to 22 dismissal as to Claim 8 for failure to state a claim for relief. 23 C. The Complaint Is Subject to Dismissal Pursuant to Heck v. Humphrey. 24 In Claims 7 and 8, Plaintiff alleges violations of the First, Fourth, and Fifth 25 Amendments against Federal Defendants Labbe, Hand, Clemmer, Sieder, Stinnett, 26 Pang, Woodland, Matthews, Moussiaux, Cline, Conners, Yang, Chooljian, 27 Hudson, the United States Attorney’s Office, and the United States of America. 28 (Compl. ¶¶ 75-80.) Claims 7 and 8 also allege the same constitutional violations 13 1 against County Defendants Duncan, Thomas, Barpon, Tackaberry, Marquez, 2 Maxwell, Valdez, Bosket, Rodriguez, and Ortiz. (Id. ¶¶ 75-77.) Plaintiff seeks 3 damages, as well as injunctive and declaratory relief. 4 In Heck, the Supreme Court held that, “in order to recover damages for an 5 allegedly unlawful conviction or imprisonment, or for other harm caused by 6 actions whose unlawfulness would render a conviction or sentence invalid, a § 7 1983 plaintiff must prove that the conviction or sentence has been reversed on 8 direct appeal, expunged by executive order, declared invalid by a state tribunal 9 authorized to make such determination, or called into question by a federal court’s 10 issuance of a writ of habeas corpus.”10 Heck, 512 U.S. at 486-87. 11 Under Heck, if a judgment in favor of a plaintiff on his civil rights damages 12 claims necessarily will imply the invalidity of his conviction or sentence, the 13 complaint must be dismissed unless the plaintiff can demonstrate that the 14 conviction or sentence has already been invalidated. See id. at 487. The Ninth 15 Circuit has held that Heck also applies to a § 1983 claim for illegal search and 16 seizure, and that such a § 1983 claim “alleging illegal search and seizure of 17 evidence upon which criminal charges are based does not accrue until the criminal 18 charges have been dismissed or the conviction has been overturned.” Harvey v. 19 Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) overruled on other grounds by 20 Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), as 21 stated in Kucharski v. Leveille, 526 F. Supp. 2d 768, 774 (E.D. Mich. 2007). . 22 Here, Claims 7 and 8 are premised on Plaintiff’s allegations that law 23 enforcement unlawfully obtained wiretap evidence that was used to criminally 24 prosecute him. Plaintiff appealed his conviction, raising the very same arguments 25 26 10 Although Heck dealt with state prisoners seeking damages pursuant to 42 U.S.C. § 1983, the Heck doctrine applies equally to Bivens actions. Martin v. 28 Sias, 88 F.3d 774, 775 (9th Cir. 1996). 27 14 1 about the wiretap evidence at issue here but was unsuccessful. Reed, 575 F.3d at 2 908-19. Further, on January 21, 2011, Plaintiff filed a Motion to Vacate, Set 3 Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (EDCR 03-84-VAP, 4 ECF No. 1592; EDCV11-145-VAP, ECF No. 1.) On March 15, 2012, an Order 5 and Judgment were entered denying the motion and dismissing the action with 6 prejudice. (EDCR 03-84-VAP, ECF Nos. 1686, 1687; EDCV11-145-VAP, ECF 7 Nos. 25, 26.) Since a judgment in Plaintiff’s favor “necessarily will imply the 8 invalidity of his conviction or sentence” and that conviction has not been 9 “reversed on direct appeal, expunged by executive order, declared invalid by a 10 state tribunal authorized to make such determination, or called into question by a 11 federal court’s issuance of a writ of habeas corpus,” the Court finds that Plaintiff’s 12 constitutional claims are Heck-barred. Thus, the Complaint is subject to dismissal 13 as to Claims 7 and 8 for failure to state a claim for relief. 14 D. The Complaint Is Subject to Dismissal Based on Witness Immunity. 15 In Claim 9, Plaintiff alleges perjury and the offering of false declarations in 16 violation of 18 U.S.C. § 1623 against Federal Defendants Labbe, Hand, Sieder, 17 Clemmer, Stinnett, Pang, Starkey, Moussiaux, Cline, Conners, and Cielecy. 18 (Compl. ¶ 81.) 19 As set forth above, 18 U.S.C. § 1623 is a criminal statute. However, there is 20 no private right of action or basis for a civil suit based on violations of criminal 21 statutes. See Allen, 464 F.3d at 1048; Peabody, 394 F.2d at 177. As a result, 22 Plaintiff fails to state a claim for relief. 23 Moreover, “[w]itnesses, including police witnesses, are immune from 24 liability for their testimony in earlier proceedings even if they committed perjury.” 25 Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir. 2001) (citing Briscoe v. 26 LaHue, 460 U.S. 325, 345, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983)). Witness 27 immunity also extends to conspiracies to commit perjury. Id. at 981 (citing 28 Franklin v. Terr, 201 F.3d 1098, 1101 (9th Cir. 2000)); see also Burns v. Cnty. of 15 1 King, 883 F.2d 819, 821 (9th Cir. 1989) (witnesses are absolutely immune from 2 suits for damages under 42 U.S.C. § 1983 for testimony given at trial, or for 3 testimony given during adversarial pretrial proceedings); Demoran v. Witt, 781 4 F.2d 155, 157-58 (9th Cir. 1986). Thus, to the extent Plaintiff is attempting to 5 state a constitutional claim against Federal Defendants based on testimony before 6 the grand jury or at trial, Plaintiff fails to state claim for relief. 7 Based on the foregoing, the Court finds that the Complaint is subject to 8 dismissal as to Claim 9 for failure to state a claim for relief. 9 E. The Complaint Is Subject to Dismissal for Failure to State a Claim for a 10 Violation Under the Federal Wiretap Act. 11 In Claims 1 through 6, Plaintiff alleges statutory violations of the Wiretap 12 Act (18 U.S.C. §§ 2510, et seq.) against Federal Defendants Sieder, Clemmer, 13 Pang, Cielecy, Labbe, Hand, Stinnett, Woodland, Matthews, Moussiaux, Cline, 14 Conners, Defendants Verizon Wireless and Thomas, and County Defendants 15 Starkey, Quezada, Duncan, Groenow, Barpon, Tackaberry, Marquez, Maxwell, 16 Valdez, Bosket, Rodriguez, and Ortiz. (Compl. ¶¶ 45-74.) 17 The relevant portion of the Wiretap Act, 18 U.S.C. § 2520, provides in 18 pertinent part that: 19 In general.--Except as provided in section 2511(2)(a)(ii), any person 20 whose wire, oral, or electronic communication is intercepted, disclosed, 21 or intentionally used in violation of this chapter may in a civil action 22 recover from the person or entity, other than the United States, which 23 engaged in that violation such relief as may be appropriate. 24 18 U.S.C. § 2520(a). 25 However, it is “a complete defense against any civil or criminal action” 26 brought under this chapter or any other law if the defendant had a good faith 27 reliance on: (1) a court warrant or order, a grand jury subpoena, a legislative 28 authorization, or a statutory authorization; (2) a request of an investigative or law 16 1 enforcement officer under section 2518(7) of this title; or (3) a good faith 2 determination that section 2511(3) or 2511(2)(i) of this title permitted the conduct 3 complained of. 18 U.S.C. § 2520(d). 4 As set forth above, before his criminal trial, Plaintiff filed two motions to 5 suppress the wiretap evidence, asserting similar arguments he raises in the current 6 Complaint. After hearings before the trial court, the motions were denied. Reed, 7 575 F.3d at 907. On appeal, Plaintiff again challenged the wiretap evidence, but 8 his claims failed. The Ninth Circuit found as follows: (1) the wiretap application 9 satisfied the necessity requirement; (2) the district court did not err in finding that 10 the Government had not intercepted telephone calls on a line for which there was 11 no court order; (3) the Government was not required to seal call data content, and 12 it timely sealed the wiretap recordings under 18 U.S.C. § 2518(8); and (4) the 13 Government did not violate the statutory wiretap monitoring requirements of 18 14 U.S.C. § 2518(5). Id. at 904-05, 908-19. Accordingly, it appears that 18 U.S.C. § 15 2520(d) would provide Federal Defendants a complete defense to Plaintiff claims 16 based on alleged violations of the Wiretap Act. Thus, the Court finds that the 17 Complaint is subject to dismissal as to Claims 1 through 6 for failure to state a 18 claim for relief. 19 F. The Complaint Is Subject to Dismissal for Failure to State a Claim for a 20 Violation of Criminal Statutes. 21 In Claims 10 through 12, Plaintiff alleges violations of 18 U.S.C. §§ 241, 22 242, 306, 902, 903, 3004 against all Defendants based on conduct that took place 23 between April 4, 2003, and April 16, 2003. (Compl. ¶¶ 84-93.) 24 As set forth above, 18 U.S.C. §§ 241 and 242 are criminal statutes. 25 However, there is no private right of action or basis for a civil suit based on 26 violations of criminal statutes. See Allen, 464 F.3d at 1048; Peabody, 394 F.2d at 27 177. Further, 18 U.S.C. §§ 306, 902, and 903 do not exist in the United States 28 Code, and § 3004 is entitled “Decorum in the court room” and has nothing to do 17 1 with any of the allegations contained in the Complaint. Thus, the Court finds that 2 the Complaint is subject to dismissal as to Claims 10 through 12 for failure to state 3 a claim for relief. 4 G. The Complaint Is Subject to Dismissal for Failure to State FTCA 5 Claims Against Any Individual Federal Defendants. 6 In Claims 13 through 15, Plaintiff alleges a violation of his common law 7 right to privacy, abuse of process, and civil conspiracy against all Defendants. 8 (Compl. ¶¶ 94-97.) 9 Although unclear, it appears that Plaintiff is attempting to allege common 10 law tort claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 11 (“FTCA”). However, the United States is the only proper defendant in cases 12 alleging tortious conduct by a United States agency or employee in the scope of 13 his employment. FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); Kennedy v. 14 U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). The FTCA provides the 15 “exclusive remedy for tortious conduct by the United States, and it only allows 16 claims against the United States . . . an agency itself [or a federal employee] 17 cannot be sued under the FTCA.” Craft, 157 F.3d at 706 (citations omitted); see 18 also United States v. Smith, 499 U.S. 160, 163, 111 S. Ct. 1180, 113 L. Ed. 2d 134 19 (1991) (the FTCA “establishes . . . absolute immunity for Government employees 20 . . . by making an FTCA action against the Government the exclusive remedy for 21 torts committed by Government employees in the scope of their employment.”). 22 Thus, to the extent Plaintiff is seeking damages against Federal agency and 23 individual Federal Defendants for tortious conduct, the Court finds that the 24 Complaint is subject to dismissal as to Claims 13 through 15 for failure to state a 25 claim for relief. 26 H. Qualified Immunity. 27 Federal Defendants have also raised the issue of qualified immunity in their 28 motion to dismiss. (Mot. to Dismiss at 10-13.) However, qualified immunity is a 18 1 fact specific inquiry. See Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 2 L. Ed. 2d 272 (2001). The Court finds that such a fact intensive determination is 3 inappropriate at this stage of the proceedings. See Groten v. California, 251 F.3d 4 844, 851 (9th Cir. 2001) (“[A] Rule 12(b)(6) dismissal is not appropriate unless 5 we can determine, based on the complaint itself, that qualified immunity 6 applies.”); Jensen v. City of Oxnard, 145 F.3d 1078, 1085-87 (9th Cir.1998)). 7 Thus, the Court declines to address the merits of this issue. 8 V. 9 ORDER 10 Based on the foregoing, the Court dismisses the Complaint with leave to 11 amend. Cato, 70 F.3d at 1105-06. The Court further denies the pending Motion to 12 Dismiss (ECF No. 10) and Motion to Quash (ECF No. 8) as moot. While it is 13 highly doubtful that Plaintiff will be able to cure the deficiencies discussed above, 14 the Court will nevertheless allow him the opportunity to do so. 15 If Plaintiff still wishes to pursue this action, he shall have thirty (30) days 16 from the date of this Order within which to file a First Amended Complaint 17 (“FAC”), attempting to cure the defects in the Complaint. The FAC shall be 18 complete in itself and must remedy the deficiencies discussed. Plaintiff may not 19 use “et al.” in the caption but must name each defendant against whom claims are 20 stated. Furthermore, Plaintiff must use the blank Central District Civil Rights 21 Complaint form accompanying this order, must sign and date the form, must 22 completely and accurately fill out the form, and must use the space provided in the 23 form to set forth all of the claims that he wishes to assert in his FAC. The FAC 24 shall not refer to the prior Complaint. 25 Failure to comply with these requirements may result in the dismissal of this 26 action for failure to prosecute and/or failure to comply with a court order. Failure 27 to remedy the deficiencies discussed may also result in a recommendation that the 28 action be dismissed. 19 1 The Clerk is directed to provide Plaintiff with a blank Central District civil 2 rights complaint form. 3 4 IT IS SO ORDERED. 5 6 7 DATED: October 22, 2012 HONORABLE OSWALD PARADA United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA INSTRUCTIONS FOR FILING A CIVIL RIGHTS COMPLAINT BY A PRISONER GENERAL INSTRUCTIONS This package includes the following documents: 4 copies - complaint form 4 copies - declaration to proceed without prepayment of filing fees In order for your complaint to be filed, you must submit the original and two copies of both the complaint and declaration to the Clerk. The remaining copy of each is for you to keep for your records. Your complaint must be typewritten or legibly handwritten in ink. You, the plaintiff, must sign and declare under penalty of perjury that the facts are correct. If you need additional space to answer a question, you must use the reverse side of the form or an additional blank page. You must file a separate complaint for each claim unless they are all related to the same incident or issue. You are required toallege facts; not legal arguments or authorities. FILING FEES Payment of filing fee required In accordance with 1996 amendments to the in forma pauperis statute, 28 U.S.C. § 1915, as a prisoner you will be obligated to pay the full filing fee of $350 for a civil action regardlessof your forma pauperis status and the disposition of the case. If you have the money to pay the filing fee, you should submit a cashier’s check, certified bank check, business or corporate check, government issued check, or m oney order drawn on a m America bank or the United StatesPostal Service, payable ajor to the Clerk of Court and mail it with your complaint to the address listed onthe reverse side of these instructions. The Clerk’ s Office will also accept credit cards (Mastercard/Visa, Discover,American Express) for filing fees and miscellaneous fees. Credit card payments may be made at all payment windows where receipts are issued. Request to pay filing fee in monthly installments If you do not have the money to pay the full filing fee, you must complete the Request to Proceed Without Prepayment of Filing Fees with Declaration in Support. The Declaration must be returned to the Court with your complaint. NOTE: You must have a prison or jail official complete the Certification Section on the Declaration and attach to the Declaration a certified copy of your prison or jail trust account statement for the six months immediately preceding the filing of the complaint. If you submit an incomplete Declaration or do not submit a prison or jail trust account statement with the Declaration, your request to proceed without prepayment of the filing fees may be denied. Initial partial filing fee assessment If your request to proceed without prepayment of filing fees is granted, the Court will assess an initial partial filing fee atthe time your action is filed. The initial partial filing fee will be equal to 20% of the average monthly deposits to your prison or jail account for the six months immediately preceding the filing of the action, or 20%of the average monthly balance in your prison or jail account for that same six month period, whichever is greater. The Court will order the agency that has custody of you to take that initial partial filing fee out of y our prison or jail account as soon as funds are available and forward th e money to the Clerk of Court. Collection of balance of filing fee After the initial partial filing fee has been paid, you will owe the balance of the filing fee. Until the amount of the filing fee is paid in full, each month you will owe 20% of y our preceding month's income toward the balance. The agency that has custody of you will collect that money and send payments to the Clerk of Courtany time the amount in your account exceeds $10.00. CV-66A (07/06) INSTRUCTIONS FOR FILING A CIVIL RIGHTS COMPLAINT BY A PRISONER - GENERAL INSTRUCTIONS PAGE 1 of 2 DISMISSAL OF THE COMPLAINT Regardless of whether some or all of the filing fee has been pa the Court is required to screen y complaint and to dismiss id, our the complaint if: 1) your allegation of poverty is untrue; 2) the action is frivolous or malicious; 3) your complaint does not state a claim on which relief can begranted; or 4) you sue a defendant for money damages and that defendant is immune from liability for money damages. If you file more than three actions or appeals while you are a prisoner which are dismissed as frivolous or malicious or for failure to state a claimon which reliefcan be granted, you will be prohibited frombringing any other actions informa pauperis unless you are in imminent danger of serious physical injury. NOTE: You are required under penalties of perjury to provide accurate information regarding previous filings. Failure to provide this information may result in the immediate dismissal of your complaint. JURISDICTION To determine whether jurisdiction and venue are proper in this Court: ! AGAINST FEDERAL DEFENDANTS, please refer to 28 U.S.C. § 1391(e) and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397 (1971); ! AGAINST NON-FEDERAL DEFENDANTS, please refer to 28 U.S.C. § 1391(b) for claims brought pursuant to 42 U.S.C. § 1983. SERVICE OF THE COMPLAINT If your request to proceed without prepay ment of the filing fees is approved, the Court will determ ine whether the United States Marshal should serve the defendant(s) on your behalf. INQUIRIES AND COPYING REQUESTS Because of the large volume of cases filed by prisoners in this Court and limited court resources, the Court and Clerk's Office will not answer inquires concerning the status of your case or provide copies of documents, except at a charge of fifty cents ($0.50) per page. You must therefore keep copies of all documents submitted to the court for your own records. TO MAIL THE COMPLAINT Mail the original and the two copies of the following completed documents to the address below: complaint and declaration to proceed without prepayment of filing fees (if applicable): United States District Court Central District of California 312 North Spring Street, Room G-8 Los Angeles, California 90012 ATTENTION: PRO SE CLERK Telephone: (213) 894-7984 CV-66A (07/06) INSTRUCTIONS FOR FILING A CIVIL RIGHTS COMPLAINT BY A PRISONER - GENERAL INSTRUCTIONS PAGE 2 of 2 FULL NAME COMMITTED NAME (if different) FULL ADDRESS INCLUDING NAME OF INSTITUTION PRISON NUMBER (if applicable) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER CV10-8315-SVW(OP) To be supplied by the Clerk PLAINTIFF, v. DEFENDANT(S). FIRST AMENDED CIVIL RIGHTS COMPLAINT PURSUANT TO (Check one) G 42 U.S.C. § 1983 G Bivens v. Six Unknown Agents 403 U.S. 388 (1971) A. PREVIOUS LAWSUITS 1. Have you brought any other lawsuits in a federal court while a prisoner: G Yes G No 2. If your answer to “1.” is yes, how many? Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an attached piece of paper using the same outline.) CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 1 of 6 a. Parties to this previous lawsuit: Plaintiff Defendants b. Court c. Docket or case number d. Name of judge to whom case was assigned e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it appealed? Is it still pending?) f. Issues raised: g. Approximate date of filing lawsuit: h. Approximate date of disposition B. EXHAUSTION OF ADMINISTRATIVE REMEDIES 1. Is there a grievance procedure available at the institution where the events relating to your current complaint occurred? G Yes G No 2. Have you filed a grievance concerning the facts relating to your current complaint? G Yes G No If your answer is no, explain why not 3. Is the grievance procedure completed? G Yes G No If your answer is no, explain why not 4. Please attach copies of papers related to the grievance procedure. C. JURISDICTION This complaint alleges that the civil rights of plaintiff (print plaintiff's name) who presently resides at (mailing address or place of confinement) , were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at (institution/city where violation occurred) CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 2 of 6 on (date or dates) NOTE: (Claim I) , (Claim II) , (Claim III) . You need not name more than one defendant or allege more than one claim. If you are naming more than five (5) defendants, make a copy of this page to provide the information for additional defendants. 1. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law: 2. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law: 3. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law: CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 3 of 6 4. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law: 5. Defendant resides or works at (full name of first defendant) (full address of first defendant) (defendant's position and title, if any) The defendant is sued in his/her (Check one or both): G individual G official capacity. Explain how this defendant was acting under color of law: CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 4 of 6 D. CLAIMS* CLAIM I The following civil right has been violated: Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each DEFENDANT (by name) did to violate your right. *If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same outline. CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 5 of 6 E. REQUEST FOR RELIEF I believe that I am entitled to the following specific relief: (Date) (Signature of Plaintiff) CIVIL RIGHTS COMPLAINT CV-66 (7/97) Page 6 of 6