Simmons v. City and County of San Francisco et al, No. 3:2013cv04832 - Document 6 (N.D. Cal. 2013)
Court Description: ORDER GRANTING IFP STATUS; ORDER FOR CLERK OF COURT TO REASSIGN CASE; REPORT AND RECOMMENDATIONS re 3 MOTION for Leave to Proceed in forma pauperis filed by Raymond B. Simmons. Objections due by 11/12/2013. Signed by Judge Maria-Elena James on 10/29/2013. (cdnS, COURT STAFF) (Filed on 10/29/2013)
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Simmons v. City and County of San Francisco et al Doc. 6 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 Northern District of California 8 9 RAYMOND B. SIMMONS 10 No. C 13-4832 MEJ ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS Plaintiff, v. 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 CITY AND COUNTY OF SAN FRANCISCO, et al., 13 Defendants. _____________________________________/ ORDER FOR CLERK OF COURT TO REASSIGN CASE REPORT AND RECOMMENDATION 14 15 16 INTRODUCTION On October 17, 2013, Plaintiff Raymond B. Simmons filed a Complaint and an Application 17 to Proceed In Forma Pauperis. For the reasons stated below, the Court GRANTS Plaintiff’s 18 application to proceed in forma pauperis. As Plaintiff has not consented to the jurisdiction of a 19 United States magistrate judge pursuant to 28 U.S.C. § 636(c), the Court ORDERS the Clerk of 20 Court to REASSIGN this case to a district judge, with the recommendation that the Complaint be 21 DISMISSED WITHOUT LEAVE TO AMEND. 22 BACKGROUND 23 The following factual background is taken from Plaintiff’s Complaint and attachments 24 thereto. Dkt. No. 1. Plaintiff brings this case against the City and County of San Francisco and the 25 San Francisco Police Department, alleging one cause of action against both Defendants: the 26 “unconstitutional and tortious act of tainting Police Report evidence by crossing out information 27 necessary to win in the Court of Appeal as per decision filed January 31, 2013.” Compl. ¶ 1. 28 Plaintiff is a resident of the Holly Court housing project in San Francisco. Id. ¶ 5. Dockets.Justia.com 1 According to Plaintiff, on April 9, 2010, another Holly Court resident assaulted him with a steel 2 baseball bat at the front door of his residence. Id. Plaintiff states that another tenant called the San 3 Francisco Police Department and, when they arrived on the scene, the assailant was pounding on the 4 gate at Plaintiff’s front door with the steel bat, at which point two male police officers pinned him to 5 the ground. Id. ¶ 6, Ex. A at 2. Plaintiff alleges that two groups of police officers arrived on the 6 scene – the two male officers that pinned the assailant, and a second group that arrived after the 7 incident. Id. ¶ 6. This second group included Officer Christina E. Johnson-Carr, who wrote the 8 police report that includes Plaintiff’s account of the incident. Id. 9 According to the police report narrative, Simmons had a strong odor of alcohol on his breath, Id., Ex. A at 23. Neighbors told police that the altercation was mutual and the property manager 12 For the Northern District of California was very uncooperative, and refused to explain what made him feel threatened by the other man. 11 UNITED STATES DISTRICT COURT 10 observed the lack of cooperation from the involved parties. Id. Plaintiff, however, states that he 13 “gave an account of the incident knowing that the officers involved already witnessed what 14 happened and was not trying to be uncooperative to the female reporting officer.” Id. ¶ 6. Plaintiff 15 later requested the police report, at which time he learned that the name of his assailant had been 16 redacted. Id. ¶¶ 7, 10, Ex. A at 22-23. 17 Plaintiff filed a Complaint in San Francisco County Superior Court against the San Francisco 18 Housing Authority, alleging various tort causes of action related to the incident. Id., Ex. A at 3-8. 19 Judgment was entered in 2012 in favor of the housing authority. Id., Ex. A at 36. Plaintiff appealed 20 from this judgment, but the California Court of Appeals affirmed judgment, holding that Plaintiff 21 had waived any claims because he “set forth no intelligible legal argument stating how the 22 allegations of the first amended complaint are sufficiently specific to state causes of action.” Id., Ex. 23 A at 36. The court further held that, even if Plaintiff could overcome this procedural hurdle, he 24 could not prevail on the merits of his appeal because his complaint did not state facts sufficient to 25 constitute a cause of action. Id., Ex. A at 37. 26 27 Plaintiff filed the present Complaint on October 17, 2013. He alleges that “[t]he Appeal was lost due to Defendant having crossed out the name of my assailant in the Police Report.” Id. ¶ 9. 28 2 1 Plaintiff alleges that the “San Francisco Police Department’s act of crossing out the name of the 2 Plaintiff’s assailant in the Police Report . . . was in violation of a U.S. Constitutional right to 3 complete evidence.” Id. ¶ 12. He seeks compensatory damages in the amount of $10 million. Id. ¶ 4 13. 5 APPLICATION TO PROCEED IN FORMA PAUPERIS 6 Pursuant to 28 U.S.C. § 1915, a district court may authorize the commencement of a civil 7 action in forma pauperis if it is satisfied that the would-be plaintiff cannot pay the filing fees 8 necessary to pursue the action. 28 U.S.C. § 1915(a)(1). Here, Plaintiff has submitted the required 9 documentation, and it is evident from the application that Plaintiff’s assets and income are insufficient to enable Plaintiff to pay the filing fees. Accordingly, the Court GRANTS Plaintiff’s 11 application to proceed in forma pauperis. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 13 14 SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2) A. Legal Standard Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any 15 person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and 16 sua sponte review and dismissal by the Court if it is frivolous, malicious, fails to state a claim upon 17 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 18 relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. 19 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the 20 court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before 21 directing that the complaint be served by the United States Marshal pursuant to Federal Rule of Civil 22 Procedure (Rule) 4(c)(2). Lopez, 203 F.3d at 1127; see also Barren v. Harrington, 152 F.3d 1193, 23 1194 (9th Cir. 1998) (noting that the language of § 1915(e) (2)(B)(ii) parallels the language of 24 Federal Rule of Civil Procedure (“Rule”) 12(b)(6)). As the United States Supreme Court has 25 explained, “[the in forma pauperis statute] is designed largely to discourage the filing of, and waste 26 of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate 27 because of the costs of bringing suit.” Neitzke v. Williams, 490 U.S. 319, 327–28 (1989). 28 3 1 “Frivolousness” within the meaning of the in forma pauperis standard of 28 U.S.C. § 1915(d) when it lacks an arguable basis either in law or in fact. Id. at 325 (definition of “frivolous . . . 4 embraces not only the arguable legal conclusion, but also the fanciful factual allegation”). When 5 determining whether to dismiss a complaint as “frivolous” under 28 U.S.C. § 1915(e)(2)(B)(I), the 6 Court has “‘the unusual power to pierce the veil of the complaint’s factual allegations,’” meaning 7 that the Court “is not bound, as it usually is when making a determination based solely on the 8 pleadings, to accept without question the truth of the plaintiff's allegations.” Denton v. Hernandez, 9 504 U.S. 25, 32 (1992) (quoting Nietzke, 490 U.S. at 327). Further, the Ninth Circuit has expressly 10 held that frivolous litigation “is not limited to cases in which a legal claim is entirely without merit . 11 . . . [A] person with a measured legitimate claim may cross the line into frivolous litigation by 12 For the Northern District of California and failure to state a claim under Rule 12(b)(6) are distinct concepts. A complaint is “frivolous” 3 UNITED STATES DISTRICT COURT 2 asserting facts that are grossly exaggerated or totally false.” Molski v. Evergreen Dynasty Corp., 13 500 F.3d 1047, 1060–61 (9th Cir. 2007). 14 The Court may also dismiss a complaint sua sponte under Rule 12(b)(6). Sparling v. 15 Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). Under Rule 12(b)(6), a district court must 16 dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires 17 that a complaint include a “short and plain statement” showing the plaintiff is entitled to relief. “To 18 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 19 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 20 (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 21 The complaint need not contain detailed factual allegations, but the plaintiff must “provide the 22 ‘grounds’ of his ‘entitle[ment]’ to relief,” which “requires more than labels and conclusions,” and 23 merely “a formulaic recitation of the elements of a cause of action” is insufficient. Iqbal, 556 U.S. 24 at 678; see also Twombly, 550 U.S. at 555. 25 In ruling on a motion to dismiss, courts may consider only “the complaint, materials 26 incorporated into the complaint by reference, and matters of which the court may take judicial 27 notice.” Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). The 28 4 1 factual allegations pled in the complaint must be taken as true and reasonable inferences drawn from 2 them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 3 337–38 (9th Cir. 1996). However, the Court cannot assume that “the [plaintiff] can prove facts 4 which [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of 5 Carpenters, 459 U.S. 519, 526 (1983). “Nor is the court required to accept as true allegations that 6 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. 7 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted). 8 9 When dismissing a case for failure to state a claim, the Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, Lopez, 203 F.3d at 1130. 12 For the Northern District of California unless it determines that the pleading could not possibly be cured by the allegation of other facts.” 11 UNITED STATES DISTRICT COURT 10 B. 13 Application to the Case at Bar Having reviewed Plaintiff’s Complaint and the attachments thereto, the Court finds that 14 Plaintiff has failed to state a cause of action for violation of any constitutional right. Plaintiff alleges 15 that “the San Francisco Police Department’s act of crossing out the name of Plaintiff’s assailant in 16 the Police Report” violated his “U.S. Constitutional right to the complete evidence,” resulting in the 17 denial of his appeal of the judgment of dismissal. Compl. ¶ 12. However, even construing the 18 Complaint liberally, the Court cannot identify any plausible ground for Plaintiff’s claims. See 19 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (“In civil rights cases 20 where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford 21 plaintiff the benefit of any doubt.”). The appellate court already made this determination, holding 22 that Plaintiff failed to cite statutory or case authority to support his claims of error on appeal, and the 23 claim was deemed waived by the appellate court. Compl, Ex. A at 36. Further, even if Plaintiff’s 24 claim was not procedurally waived, the appellate court found that Plaintiff’s appeal could not have 25 prevailed on the merits because he failed to allege the factual elements of each cause of action with 26 sufficient particularity to state a cause of action in the First Amended Complaint. Id., Ex. A at 37. 27 Put another way, although Plaintiff now alleges that the appellate court ruled against him because 28 5 1 the assailant’s name was redacted from the police report, the appellate court made no such ruling, 2 and there is no indication that this was fatal to his appeal. Rather, even if the name had not been 3 redacted, it was Plaintiff’s inability to adequately marshall the facts he did possess, or set forth the 4 elements of each particular cause of action, that led to the denial of his appeal. Consequently, the 5 undersigned RECOMMENDS that the District Court DISMISS Plaintiff’s Complaint WITHOUT 6 LEAVE TO AMEND. 7 8 9 CONCLUSION Based on the analysis above, the Court GRANTS Plaintiff’s application to proceed in forma pauperis. As Plaintiff has not consented to the jurisdiction of a United States magistrate judge district judge, with the recommendation that the Complaint be DISMISSED WITHOUT LEAVE 12 For the Northern District of California pursuant to 28 U.S.C. § 636(c), the Court ORDERS the Clerk of Court to REASSIGN this case to a 11 UNITED STATES DISTRICT COURT 10 TO AMEND. 13 Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to 14 this Report and Recommendation within 14 days after being served. The Court advises Plaintiff that 15 he may wish to seek assistance from the Legal Help Center, located on the 15th Floor of the Federal 16 Building, 450 Golden Gate Avenue, San Francisco, California, in Room 2796, where Plaintiff may 17 sign up for a free appointment with an attorney who may be able to provide basic legal help, but not 18 legal representation. The telephone number for scheduling an appointment with the Legal Help 19 Center is (415) 782-8982. 20 IT IS SO ORDERED. 21 22 Dated: October 29, 2013 _______________________________ Maria-Elena James United States Magistrate Judge 23 24 25 26 27 28 6 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 RAYMOND B. SIMMONS, 4 No. C 13-04832 MEJ Plaintiff(s), 5 6 7 v. CERTIFICATE OF SERVICE CITY AND COUNTY OF S.F., Defendant(s). / 8 9 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 That on October 29, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 Raymond B. Simmons 124 Appleton Ave San Francisco, CA 94110 15 16 17 Dated: October 29, 2013 Richard W. Wieking, Clerk By: Rose Maher, Deputy Clerk 18 19 20 21 22 23 24 25 26 27 28 7
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