(PC) Humes v. Sacramento County, No. 2:2018cv00326 - Document 10 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/19/2019 GRANTING 5 Motion to Proceed IFP; DENYING as moot 4 , 6 , and 7 Motions for Service, Ruling on Motion to Proceed IFP, and for Funds to Facilitate D iscovery; ORDERING Clerk of Court to assign a district judge; and RECOMMENDING 1 Complaint be dismissed without leave to amend for failure to state a cognizable claim. Plaintiff to pay the statutory filing fee of $350. All payments to be col lected in accordance with the notice to the custodial agency filed concurrently herewith. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(PC) Humes v. Sacramento County Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 13 14 15 No. 2:18-cv-0326-EFB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS SACRAMENTO COUNTY. Defendant. 16 17 Plaintiff, who is presently incarcerated in the Sacramento County Main Jail, brings this 18 action pro se and pursuant to 42 U.S.C. § 1983. He has a filed: (1) a motion for service (ECF No. 19 4); (2) an application to proceed in forma pauperis (ECF No. 5); (3) a motion for ruling on his 20 application to proceed in forma pauperis (ECF No. 6); and (4) a motion for five hundred dollars a 21 month to facilitate discovery (ECF No. 7). For the reasons stated hereafter, his application to 22 proceed in forma pauperis is granted but his complaint must be dismissed due to its failure to state 23 a cognizable claim, and his remaining motions are denied as moot. 24 25 Application to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1). 26 Accordingly, his request to proceed in forma pauperis is granted. By separate order, the agency 27 having custody of plaintiff will be directed to forward payments from his account to the Clerk of 28 Court each time the amount in the account exceeds $10.00, until the filing fee is paid in full. 28 1 Dockets.Justia.com 1 U.S.C. § 1915(b)(2). Plaintiff’s motion for ruling on his application (ECF No. 6) is denied as 2 moot. 3 Screening 4 I. 5 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 6 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 7 which relief may be granted, or seeks monetary relief against an immune defendant. 8 9 Legal Standards Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 10 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 11 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 12 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 13 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 14 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 15 relief above the speculative level on the assumption that all of the complaint's allegations are 16 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 17 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 18 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 19 In reviewing a complaint under this standard, the court must accept as true the allegations 20 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 21 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 22 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 23 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 24 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 25 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 26 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 27 ///// 28 ///// 2 1 2 II. Analysis Although plaintiff names the County of Sacramento as a defendant in the caption of his 3 complaint, the substance of his allegations pertains to a deputy district attorney referenced as 4 “Ore.” Plaintiff alleges that Ore, on three separate occasions, submitted false information to 5 superior court judges which resulted in: (1) two search warrants; (2) one arrest warrant; and (3) a 6 finding that plaintiff had failed to register as a sex offender. ECF No. 1 at 3. Plaintiff claims that 7 he is not a sex offender and that Ore’s “terrible lies” have kept him in jail for the past year. Id. 8 These allegations are not cognizable under section 1983. It is well settled that a prosecutor is 9 entitled to absolute immunity from a civil action for damages when he performs a function that is 10 “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 11 U.S. 409, 430 (1976). Functions that are protected by absolute immunity include appearing at a 12 probable cause hearing to support an application for a search warrant, preparing and filing an 13 arrest warrant, initiating a prosecution, and presenting the state’s case. KRL v. Moore, 384 F.3d 14 1105, 1110-11 (9th Cir. 2004). Plaintiff’s claims against Ore are, consequently, barred by 15 absolute immunity.1 16 17 Leave to Amend In light of the foregoing, leave to amend would not cure the defect in plaintiff’s claims. It 18 is clear from his complaint that he is attempting to sue the prosecutor in his state criminal 19 proceeding for actions by the prosecutor that are covered by absolute immunity. Thus, the 20 complaint must be dismissed without leave to amend. 21 Conclusion 22 Accordingly, it is ORDERED that: 23 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 5) is GRANTED. 24 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 25 in accordance with the notice to the custodial agency filed concurrently herewith. 26 27 28 1 Plaintiff states that, under state law, he has been “expunged and released” from the requirement to register as a sex offender for six years. ECF No. 1 at 3. Even if this statement is correct, it is an issue that sounds exclusively in state law and, since no viable federal claims have been presented, should be presented to the state courts. 3 1 3. His motions for service, ruling on motion to proceed in forma pauperis, and motion 2 for funds to facilitate discovery (ECF Nos. 4, 6, & 7) are DENIED as moot; and 3 4 5 6 4. The Clerk of Court shall assign a district judge to rule on the court’s findings and recommendations. Further, it is RECOMMENDED that plaintiff’s complaint be dismissed without leave to amend for failure to state a cognizable claim. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: February 19, 2019. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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