Opinion
24-cv-00949-JD
10-09-2024
ANTHONY MCGEE, Plaintiff, v. ALAMEDA COUNTY SHERIFF DEPARTMENT, Defendant.
ORDER RE DISMISSAL
JAMES DONATO United States District Judge
In this pro se lawsuit under 42 U.S.C. § 1983, plaintiff McGee alleges that on January 31, 2024, he was unlawfully arrested and “assaulted [by Alameda County deputies] without reasonable suspicion or probable cause.” Dkt. No. 1. A magistrate judge granted McGee leave to proceed in forma pauperis. Dkt. No. 5.
McGee filed a similar lawsuit against the City of Palo Alto for false arrest, which the Court dismissed. See McGee v. City of Palo Alto et al, Case No. 23-cv-02113-JD (Dkt. No. 22). Dismissal was warranted because the complaint indicated that criminal proceedings were pending against McGee, which could affect the Section 1983 claims he alleged. Id. at 2 (citing Davis v. Suhr, No. 16-cv-04487-JD, 2017 WL 475289, at *2 (N.D. Cal. Feb. 6, 2017); Wallace v. Kato, 549 U.S. 384, 393-94 (2007); Heck v. Humphrey, 512 U.S. 477, 484-87 (1994)). McGee was directed to amend the complaint with respect to the criminal charges. Id. He did not do so, and the case was dismissed with prejudice under Federal Rule of Civil Procedure 41(b). Dkt. No. 27.
The same problem is present here. The complaint alleges that McGee was charged with resisting arrest. Dkt. No. 1 ¶ 37. No disposition of the charge is stated, and the status of the criminal case is unknown. In addition, the complaint does not plausibly allege a Section 1983 claim with facts demonstrating that a policy, custom, or practice caused a deprivation of McGee's rights. See Turner v. Alberto, No. 3:20-cv-02980-JD, 2021 WL 254447, at *3 (N.D. Cal. Jan. 26, 2021) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)).
Consequently, the complaint is dismissed. McGee may file an amended complaint by November 8, 2024. The amended complaint must state the status of the criminal charge against McGee. It must also address the shortfalls in the Section 1983 claim. A failure to meet this deadline or conform to this order will result in a dismissal of the case under Federal Rule of Civil Procedure 41(b). McGee's request for sanctions, Dkt. No. 16 at 4, is denied.
IT IS SO ORDERED.