Opinion
EDCV 21-0324-MWF (KS)
03-22-2021
NELSON H. ROMERO, Plaintiff, v. COUNTY OF SAN BERNARDINO, et al, Defendants.
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
On February 24, 2021, Nelson H. Romero (“Plaintiff”), a California resident proceeding pro se and in forma pauperis, filed a civil rights complaint alleging violations of his Fourth and Fifth Amendment rights by the San Bernardino Police Department and its employees. (Dkt. No. 1.)
In civil actions where the plaintiff is proceeding in forma pauperis (“IFP”), Congress requires district courts to dismiss the complaint “at any time” if the court determines that the complaint, or any portion thereof: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also Karas v. Access Hollywood, No. C 12-02310-CRB, 2012 WL 3116230 at *2 (N.D. Cal. July 31, 2012) (granting IFP request and sua sponte dismissing complaint with leave to amend for failure to state a claim). The court's authority in this regard includes sua sponte dismissal of claims against defendants who have not been served and defendants who have not yet answered or appeared. See Abagnin v. AMVAC Chemical Corp., 545 F.3d 733, 742-43 (9th Cir. 2008); see also Reunion, Inc. v. F.A.A., 719 F.Supp.2d 700, 701 n.1 (S.D.Miss. 2010) (“[T]he fact that [certain] defendants have not appeared and filed a motion to dismiss is no bar to the court's consideration of dismissal of the claims against them for failure to state a claim upon which relief can be granted, given that a court may dismiss any complaint sua sponte for failure to state a claim for which relief can be granted pursuant to Rule 12(b)(6).”).
Even where a plaintiff is not proceeding IFP, Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a trial court to dismiss a claim sua sponte and without notice “where the claimant cannot possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (same); Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting Ninth Circuit's position in Omar and noting that in such circumstances a sua sponte dismissal “is practical and fully consistent with plaintiffs' rights and the efficient use of judicial resources”).
In determining whether a complaint should be dismissed at screening, the Court applies the standard of Federal Rule of Civil Procedure 12(b)(6): “[a] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Thus, the plaintiff's factual allegations must be sufficient for the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and internal quotation marks omitted); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”).
When a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (citations and internal quotation marks omitted)). In giving liberal interpretation to a pro se complaint, however, the court may not supply essential elements of a claim that were not initially pled, Byrd v. Maricopa County Sheriff's Dep't, 629 F.3d 1135, 1140 (9th Cir. 2011), and the court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences, ” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
If the court finds that a pro se complaint fails to state a claim, the court must give the pro se litigant leave to amend the complaint unless “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar, 698 F.3d at 1212 (internal quotation marks omitted); Lira v. Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005). However, if amendment of the pleading would be futile, leave to amend may be denied. See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of a motion for leave to amend,' Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995), [a]nd the district court's discretion in denying amendment is ‘particularly broad' when it has previously given leave to amend.”).
For the following reasons, the Court finds that the Complaint fails to state a cognizable claim for relief and must be dismissed. However, leave to amend is granted.
Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. ALLEGATIONS OF THE COMPLAINT
Plaintiff sues the following entities and individuals but does not specify whether he sues them in their individual or official capacity: City of San Bernardino; Jeannette Hernandez, a San Bernardino police officer; B. Keil, a second San Bernardino police officer; and G. Miles, a third San Bernardino police officer. (Complaint at 1.)
The Complaint asserts that Defendant City of San Bernardino failed to properly train its police officers and, as a result, the City exhibited deliberate indifference to the rights of the people with whom police officers interact. (Complaint at 1-2.)
The Complaint asserts that Plaintiff's rights under Fourth Amendment were violated by unspecified defendants because no warrant was issued for 2161 Elmwood Rd. and there was no probable cause to search that location, and, therefore, any evidence seized must be kept out of “the case.” (Complaint at 2.) The Complaint does not indicate if and when there was a search by law enforcement of 2161 Elmwood Rd, what Plaintiff's connection to the Elmwood address is, and whether he is currently being criminally prosecuted in connection with that search.
The Complaint also asserts that Plaintiff's rights under the Fifth Amendment were violated because he was “forced, coerced into saying statements that may incriminate [him, ]” when, inter alia, he was asked for his first or last name, and he was not informed of his rights. (Complaint at 2.) Again, the Complaint does not indicate which defendants, if any, were involved in the interrogation, provide any description of the force or coercion used during the interrogation, or whether he is currently being criminally prosecuted in connection with the interrogation.
Finally, the Complaint asserts a violation of the Double Jeopardy Clause of the Fifth Amendment but does not provide any additional detail-beyond the text of the Clause itself. (Complaint at 3.)
Plaintiff attached to the Complaint an “Affidavit of Truth, ” in which he asserts that he is a natural freeborn Sovereign and, inter alia, not subject to any entity. (Complaint at 4-10.)
The Complaint does not contain a prayer for relief or identify the relief Plaintiff is seeking.
III. DISCUSSION
A. The Complaint Violates Rule 8 of the Federal Rules of Civil Procedure
Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” See also McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (describing Rule 8 as requiring “simplicity, directness, and clarity”). Although Rule 8 does not require detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation, ” and “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). Moreover, Rule 8 can be violated both by a pleading saying too little and by a pleading that says too much-that is, a pleading that is prolix and confusing. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citations omitted). Ultimately, a complaint violates Rule 8 if a defendant would have difficulty understanding and responding to it, United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011), and, therefore, a complaint is subject to dismissal if “one cannot determine from the complaint who is being sued, for what relief, and on what theory.” McHenry, 84 F.3d at 1178.
Here, the Complaint violates Rule 8 because it lacks virtually all of the information that would be necessary for a defendant to craft a response, including how each named defendant violated, or caused a violation of, Plaintiff's constitutional rights, when the alleged violations occurred, and what relief Plaintiff is seeking. Accordingly, the Complaint must be dismissed in its entirety for failure to comply with Rule 8. If Plaintiff elects to file a First Amended Complaint, he shall do all of the following: explain, clearly and concisely, what each Defendant did, or did not do, that makes that Defendant responsible for the civil rights violations alleged; state when the alleged constitutional deprivations occurred; and identify the relief Plaintiff is seeking. Plaintiff shall also specify whether he is suing Defendants in their individual and/or official capacity and is strongly encouraged to use the Central District's standard civil rights complaint form.
B. The Complaint Fails to State a Fourth Amendment Claim
It appears that Plaintiff asserts a claim under the Fourth Amendment for an unreasonable search and seizure, although he does not state that a search occurred, identify the individuals who caused the alleged Fourth Amendment violation, establish that Plaintiff had a privacy interest in the location searched, or provide any factual detail that would support a reasonable inference that any search that occurred was, in fact, unreasonable. Furthermore, the Complaint refers vaguely to a “case” against Plaintiff, but, under the Heck doctrine, a Section 1983 action alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned. Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) (discussing Heck v. Humphrey, 512 U.S. 477 (1994)), overruled in part on other grounds by Wallace v. Kato, 549 U.S. 384, 393-394 (2007). For all of the foregoing reasons, Plaintiff's Fourth Amendment claim must be dismissed. If Plaintiff elects to file a First Amended Complaint, he shall explain who violated his Fourth Amendment rights and how, which will require a sufficiently specific statement of facts to support a reasonable inference that a search occurred, the search was unreasonable, and Plaintiff had a privacy interest in the location searched. Additionally, Plaintiff may not assert a Fourth Amendment violation stemming from a search or seizure upon which criminal charges are based unless those charges have been dismissed or the conviction overturned.
C. The Complaint Fails to State a Fifth Amendment Claim
It appears that Plaintiff asserts a claim under the Self-Incrimination Clause of the Fifth Amendment to the U.S. Constitution. The Fifth Amendment requires that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. However, the U.S. Supreme Court has held that an individual cannot allege a violation of this right if he “was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case.” Chavez v. Martinez, 538 U.S. 760, 766 (2003). “[P]olice questioning does not constitute a ‘case', ” and, although statements compelled by police interrogations may not be used against a defendant at trial, it is only upon their use in a criminal case that a violation of the Self-Incrimination Clause occurs. Id. at 767. The Supreme Court explained in Chavez that the plaintiff “was never made to be a ‘witness' against himself in violation of the Fifth Amendment's Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to ‘the cruel trilemma of self-accusation, perjury or contempt.'” Id. (internal quotation marks and citations omitted). In the absence of those circumstances, the Supreme Court found that the police's act of compulsive questioning did not violate the Constitution. Id.
The Complaint refers vaguely to a “case” but does not allege that the statements he was coerced to make were subsequently used against him in a criminal case, that the statements were ever admitted as testimony against him in court, or that he was ever exposed to the “trilemma of self-accusation, perjury, or contempt.” (See generally Complaint); see also Chavez, 538 U.S. at 767. Accordingly, the Complaint fails to state a claim under the Fifth Amendment's Self Incrimination Clause, and the claim must be dismissed. If Plaintiff elects to file a First Amended Complaint, he shall either omit his Fifth Amendment self-incrimination claim or include specific factual allegations that support a plausible inference that his purportedly coerced statements were used against him in a criminal case. Notably, an allegation that there is a criminal case pending against him is insufficient.
D. The Complaint Cannot Obtain Relief for a Double Jeopardy Violation
Finally, the Complaint appears to assert a violation of the Double Jeopardy Clause of the Fifth Amendment. The claim is purely conclusory, consisting entirely of the single phrase “Violation of Double Jeopardy Clause” and a summary of the Clause itself. Plaintiff provides no factual support for his assertion that his rights under the Double Jeopardy Clause of the Fifth Amendment were violated. (See generally Complaint at 3.) Because Plaintiff does not allege that he has been prosecuted more than once for the same offense, he has not stated a claim for double jeopardy. Further, if there are criminal charges pending, as suggested by Plaintiff's reference to a “case, ” his double jeopardy claim fails under Heck because a civil rights claim that, if successful, would necessarily undermine the validity of a conviction or the duration of a sentence may not be brought until the criminal charges have been favorably terminated. See Heck, 512 U.S. at 489. For all of these reasons, Plaintiff's double jeopardy claim must be dismissed. If Plaintiff elects to file a First Amended Complaint, he shall either omit his double jeopardy claim or include specific factual allegations demonstrating that he was prosecuted more than once for the same offense and the second prosecution against him was terminated in his favor.
IV. CONCLUSION
For the reasons stated above, the Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted twenty-one (21) days from the date of this Memorandum and Order within which to file a First Amended Complaint. In any amended complaint, Plaintiff shall cure the defects described above.
Plaintiff shall not include new defendants or new allegations that are not reasonably related to the claims asserted in the original complaint. Further, the First Amended Complaint, if any, shall be complete in itself and shall bear both the designation “First Amended Complaint” and the case number assigned to this action. It shall not refer in any manner to Plaintiff's earlier pleadings, and claims and defendants that are not expressly included in the First Amended Complaint shall be deemed abandoned.
In any amended complaint, Plaintiff shall clarify the number of claims he is asserting, the legal theory for each claim asserted, and explain, clearly and concisely, what each Defendant did, or did not do, that caused the civil rights violations alleged. For each claim asserted, Plaintiff shall provide sufficient factual detail to answer all of the following questions:
(1) Which Defendant, or Defendants, caused the alleged harm to Plaintiff;
(2) What precise actions did the Defendant(s) take that caused the alleged harm to Plaintiff;
(3) When did the alleged wrongdoing occur;
(4) What constitutional or statutory right was violated as a result of the Defendant's (or Defendants') actions; and
(5) What relief or remedy is Plaintiff requesting.
Plaintiff may not rely on conclusory allegations and formulaic recitations of applicable law. Plaintiff shall identify which individual defendants are being sued in their individual capacity and which are being sued in their official capacity. Plaintiff is strongly encouraged to utilize the Central District's standard civil rights complaint form when filing any amended complaint. Plaintiff is reminded that, under the Heck doctrine, he cannot assert a civil rights claim under Section 1983 that, if successful, would necessarily undermine the validity of criminal charges against him, a criminal conviction, or the duration of a criminal sentence until he has obtained a “favorable termination” of those charges, the conviction, or the sentence at issue.
Plaintiff's failure to timely comply with this Order may result in a recommendation of dismissal. If Plaintiff no longer wishes to pursue this action, in whole or in part, hey may voluntarily dismiss it, or any portion of it, by filing a signed document entitled “Notice of Dismissal” in accordance with Federal Rule of Civil Procure 41(a)(1).
THIS MEMORANDUM IS NOT INTENDED NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS.