-JLT Andrews v. Herron et al, No. 1:2011cv01668 - Document 4 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Denying Plaintiff's Motion to Proceed In Forma Pauperis 2 and Dismissing Plaintiff's Complaint 1 Without Leave to Amend, signed by Magistrate Judge Jennifer L. Thurston on 10/25/11. Referred to Judge O'Neill. 14-Day Deadline. (Gonzalez, R)
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-JLT Andrews v. Herron et al Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 MARCQUAL ANDREWS, ) ) Plaintiff, ) ) ) v. ) ) SHANIKA HERRON, JANICE JENKINS, and ) JACKIE DAVIDSON, ) ) ) Defendants. ) _______________________________________ ) Case No.: 1:11-cv-01668 LJO JLT FINDINGS AND RECOMMENDATION DENYING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PLAINTIFF’S COMPLAINT WITHOUT LEAVE TO AMEND (Docs. 1-2) 18 Marcqual Andrews (“Plaintiff”) is a seeks to proceed pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1). Plaintiff initiated this action by filing a 20 motion to proceed in forma pauperis, a Civil Cover Sheet and Complaint on October 3, 2011. 21 (Docs. 1-2). 22 For the following reasons, the Court recommends Plaintiff’s motion to proceed in forma 23 pauperis (Doc. 2) be DENIED and Plaintiff’s Complaint (Doc. 1) be DISMISSED WITHOUT 24 LEAVE TO AMEND. 25 I. Screening Requirement 26 When a plaintiff is proceeding in forma pauperis, the Court is required to review the 27 complaint, and shall dismiss the case at any time if the Court determines that the allegation of 28 poverty is untrue, or the action or appeal is “frivolous, malicious or fails to state a claim on which 1 Dockets.Justia.com 1 relief may be granted; or . . . seeks monetary relief against a defendant who is immune from such 2 relief.” 28 U.S.C. 1915(e)(2). A claim is frivolous “when the facts alleged arise to the level of the 3 irrational or the wholly incredible . . .” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Because 4 Plaintiff is unable to state claim upon which relief can be granted, the Court recommends Plaintiff’s 5 motion to proceed in forma pauperis be DENIED. 6 II. Pleading Standards 7 General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. 8 A pleading stating a claim for relief must include a statement affirming the court’s jurisdiction, “a 9 short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for 10 the relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. 11 P. 8(a). Pro se pleadings are held to “less stringent standards” than pleadings drafted by attorneys. 12 Haines v. Kerner, 404 U.S. 519, 521-21 (1972). 13 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and 14 succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The 15 purpose of the complaint is to give the defendant fair notice of the claims against him, and the 16 grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 17 The Supreme Court noted, 18 19 20 Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. 21 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). 22 Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 23 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, 24 25 26 27 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief. 28 2 1 Iqbal, 129 S.Ct. at 1949. Where the factual allegations are well-pled, a court should assume their 2 truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the 3 pleading are not entitled to the same assumption of truth. Id. If the Court determines that the 4 complaint fails to state a cognizable claim, the Court may grant leave to amend to the extent that 5 deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127- 6 28 (9th Cir. 2000) (en banc). 7 III. Plaintiff’s § 1983 Claim 8 9 10 11 12 13 According to Plaintiff’s “Civil Cover Sheet,” he seeks to assert a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1-1). An individual may bring an action for the deprivation of civil rights pursuant to 42 U.S.C. § 1983, which states in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . 14 15 42 U.S.C. § 1983. Thus, § 1983 does not provide for substantive rights; it is “a method for 16 vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994). 17 A plaintiff must allege a specific injury and show causal relationship between the 18 defendant’s conduct and the injury suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 371- 19 72, 377 (1976); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a connection shown where a 20 defendant “does an affirmative act, participates in another’s affirmative acts, or omits to perform an 21 act which he is legally required to do so that it causes the deprivation of which complaint is made”). 22 As with other claims, conclusory allegations unsupported by facts are insufficient to state a claim 23 under § 1983. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977). 24 A. Plaintiff’s Factual Allegations 25 Plaintiff asserts this action under § 1983 against Shanika Herron, Janice Jenkins, and Jackie 26 Davidson (collectively, “Defendants”). (Doc. 1 at 1). Plaintiff asserts Ms. Herron “made a false 27 police report on [him] many of times” in which she reported Plaintiff choked her, threatened her, and 28 stole her car. Id. at 2. Plaintiff asserts these accusations resulted in his incarceration, which caused 3 1 him stress and aggravation. Id. Plaintiff states that he would like Defendants “investigated . . . and 2 possibly incarserated (sic).” Id. 3 B. Discussion and Analysis 4 Importantly, to plead a § 1983 violation, a plaintiff must allege facts from which it may be 5 inferred that (1) he was deprived of a federal right, and (2) a person or entity who committed the 6 alleged violation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Williams v. 7 Gorton, 529 F.2d 668, 670 (9th Cir. 1976). 8 From his factual allegations, Plaintiff raises a claim for malicious prosecution under § 1983 9 for the accusations made by Ms. Herron which resulted in his incarceration. “Malicious prosecution 10 actions are not limited to suits against prosecutors but may be brought . . . against other persons who 11 have wrongfully caused the charges to be filed.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 12 (9th Cir. 2004), citing Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002). 13 To prevail on claim of malicious prosecution under § 1983, Plaintiff “must show that the defendants 14 prosecuted [him] with malice and without probable cause, and that they did so for the purpose of 15 denying [him] equal protection or another specific constitutional right.” Freeman v. City of Santa 16 Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). In addition, Plaintiff must show “the prior proceedings 17 terminated in such a manner as to indicate his innocence.” Awabdy, 368 F.3d at 1069. 18 Plaintiff has not alleged Defendants acted with malice and without probable cause, and for 19 the purpose of denying his constitutional rights. Further, though Plaintiff names Ms. Jenkins and 20 Ms. Davidson as defendants in the action, Plaintiff fails to make factual allegations that link their 21 actions to a violation of his rights. Plaintiff failed to provide information regarding prior 22 proceedings, or whether the proceedings have terminated. Most notably, Plaintiff fails to allege 23 Defendants acted under the color of state law as required to state a claim under § 1983. Finally, the 24 Court notes that Plaintiff is currently incarcerated, leading to the assumption that the criminal 25 proceedings have not terminated in his favor. Consequently, Plaintiff’s Complaint fails to state a 26 claim upon which relief may be granted by the Court. 27 /// 28 /// 4 1 2 IV. Findings and Recommendations “A pro se litigant must be given leave to amend his or her complaint unless it is ‘absolutely 3 clear that the deficiencies of the complaint could not be cured by amendment.” Karim-Panahi v. Los 4 Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), quoting Noll v. Carlson, 809 F.2d 1446, 5 1448 (9th Cir. 1987). Leave to amend “is subject to the qualification that the amendment not cause 6 undue prejudice to the defendant, is not in bad faith, and is not futile.” Bowles v. Reade, 198 F.3d 7 752, 757 (9th Cir. 1999). As a result, leave to amend should be denied “if a complaint lacks merit 8 entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). 9 Plaintiff has failed to state a claim for relief under § 1983. Further, the Court finds that the 10 deficiencies outlined above are not capable of being cured by amendment, and therefore leave to 11 amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll, 809 F. 2d at 1448-49. 12 Accordingly, it is HEREBY RECOMMENDED: 13 1. Plaintiff’s motion to proceed in forma pauperis be DENIED; 14 2. Plaintiff’s Complaint be DISMISSED WITHOUT LEAVE TO AMEND; and 15 3. This dismissal count as a strike pursuant to 28 U.S.C. § 1915(g). 16 These Findings and Recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 18 Local Rules of Practice for the United States District Court, Eastern District of California. Within 14 19 days after being served with these Findings and Recommendations, Plaintiff may file written 20 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s 21 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 22 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 23 1153 (9th Cir. 1991). 24 25 IT IS SO ORDERED. 26 Dated: October 25, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 27 28 5
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