Unpublished Disposition, 930 F.2d 27 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 27 (9th Cir. 1991)

Jerome JOSEPH, Plaintiff-Appellant,v.Joseph ASENCIO and Leonard Myers, Defendants-Appellees.

No. 90-15358.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 11, 1990.* Decided April 8, 1991.

Before POOLE, CANBY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Jerome Joseph, a pro se prisoner, sued Joseph Asencio and Leonard Myers, San Jose Police Department detectives. He alleged they violated his federal constitutional rights under the fourth and fourteenth amendments when they arrested him and caused him to be held in the Santa Clara County Jail for an extended period of time without taking him before a magistrate for a probable cause hearing. The district court dismissed Joseph's complaint sua sponte under Rule 12(b) (6) of the Federal Rules of Civil Procedure for failure to state a claim. No process was issued or served prior to this dismissal, nor was Joseph advised of any deficiency in his complaint.

We have jurisdiction under 28 U.S.C. § 1291 and we reverse.

DISCUSSION

In testing the sufficiency of a section 1983 complaint, dismissal for failure to state a claim is proper only if it appears beyond doubt that the plaintiff would be entitled to no relief under any state of facts that could be proved. Woodrum v. Woodward County, 866 F.2d 1121, 1124 (9th Cir. 1989). The court must construe pleadings liberally, afford the plaintiff the benefit of any doubt, and provide some notice of deficiencies in the complaint. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). "A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (per curiam).

The record before us indicates the district court dismissed the complaint before issuance and service of process, without prior notice to Joseph, without advising Joseph of the inadequacies of his complaint, and without affording Joseph an opportunity to submit written argument or amend.

The main thrust of Joseph's complaint is that he was denied due process by the procedures used by California to effect extradition. Joseph contends he was detained an unreasonable length of time without a probable cause determination on his warrantless arrest in violation of his fourth and fourteenth amendments rights.

To make out a cause of action under section 1983, a plaintiff must plead that: (1) defendants acting under color of state law; (2) deprived plaintiff of rights secured by the Constitution or federal statutes. Karim-Panahi, 839 F.2d 621, 624 (9th Cir. 1988). We cannot conclude that Joseph's cause of action lacks an arguable basis in law. Both the California Penal Code1  and our previous decisions2  suggest that Joseph's complaint was sufficient to withstand dismissal for failure to state a claim.

It is well settled that although a policeman's on-the-scene assessment of probable cause provides legal justification for arrest and for a brief period of detention for administrative steps incident to arrest, the fourth amendment requires a judicial determination of probable cause before an individual may be subjected to an extended restraint of liberty. Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975).

We recently affirmed a district court decision requiring that Santa Clara County either: (1) provide for a probable cause determination within twenty-four hours of a warrantless arrest (in view of evidence establishing that county law enforcement officials required no more than ten hours to complete administrative procedures), or (2) establish exigent circumstances precluding such a determination. Bernard v. City of Palo Alto, 699 F.2d 1023, 1024 (9th Cir. 1983) (plaintiff arrested without warrant and held for fifty-one hours before release without probable cause determination brought suit against county, county officials and employees for damages, alleging violation of fourth amendment).

Joseph was arrested in Santa Clara County. Administrative steps incident to his arrest allegedly were completed in three hours, with no exigent circumstances existing.

CONCLUSION

The district court's order dismissing Joseph's complaint is reversed. This cause is remanded to the district court for issuance and service of process on the defendants, and for further proceedings consistent with this memorandum disposition.

REVERSED and REMANDED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

"When an arrest is made without a warrant ... the person arrested, if not otherwise released, must, without unnecessary delay, be taken before the nearest ... magistrate...." Cal.Pen.Code Sec. 849. "The arrest of a person may ... be lawfully made by any peace officer, without a warrant, upon reasonable information that the accused stands charged in the courts of any other State.... When so arrested the accused must be taken before a magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest...." Cal.Pen.Code Sec. 1551.1. "The defendant must in all cases be taken before the magistrate ... within two days after his arrest, excluding Sundays and holidays...." Cal.Pen.Code Sec. 825

 2

See Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987) (allegations in prisoner's complaint that California sheriff knowingly released him to Maryland state troopers before court determined propriety of extradition were sufficient to state cause of action against sheriff under Sec. 1983); Ricks v. Sumner, 647 F.2d 76 (1981) (prisoner's complaint sufficiently alleged failure to provide hearing prior to involuntary removal to another jurisdiction to state cause of action under civil rights statutes); Boag v. Boies, 455 F.2d 467 (9th Cir. 1972) (under Uniform Criminal Extradition Act, enacted by California, prisoner may not be extradited without first being brought before magistrate and informed of rights to hearing and counsel to contest extradition)