(PS) Gamino v. Evers

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 BRANDON MICHAEL GAMINO, No. 2:23-cv-03036-TLN-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JON EVERS, et al., 15 Defendants. [16] 17 Plaintiff is proceeding pro se in this action. This matter was accordingly referred to the 18 undersigned by Local Rule 302(c)(21). Before the Court is Plaintiff’s Second Amended 19 Complaint (ECF No. 7)1. The Court has screened the Second Amended Complaint (“SAC”), as 20 required by Section 1915(a)(2), and concludes that the SAC fails to state a claim. The Court 21 recommends that the SAC be dismissed without further leave to amend. 22 I. SCREENING 23 A. Legal Standard 24 The federal IFP statute requires federal courts to dismiss a case if the action is legally 25 “frivolous or malicious,” fails to state a claim upon which relief may be granted or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). [27] 1 The docket sheet incorrectly states ECF No. 7 is the First Amended Complaint. The original 28 complaint is at ECF No. 1, and First Amended Complaint at ECF No. 3. 1 Courts must review the complaint that initiates the action and perform this screening function. 2 Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and 3 plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this 4 court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled 5 to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief 6 sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly. 7 Fed. R. Civ. P. 8(d)(1). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the 10 court will (1) accept as true all of the factual allegations contained in the complaint, unless they 11 are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 12 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327 ; Von 13 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. 14 denied, 564 U.S. 1037 (2011). 15 The court applies the same rules of construction in determining whether the complaint 16 states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court 17 must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must 18 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 19 less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519 , 520 20 (1972). However, the court need not accept as true conclusory allegations, unreasonable 21 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618 , 22 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 23 to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, [24] 556 U.S. 662, 678 (2009). 25 To state a claim on which relief may be granted, the plaintiff must allege enough facts “to 26 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 . “A claim has 27 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 28 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 1 678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity 2 to amend, unless the complaint’s deficiencies could not be cured by amendment. See Akhtar v. 3 Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 4 B. Analysis 5 The Court previously screened Plaintiff’s First Amended Complaint (“FAC”). The Court 6 described the allegations in the FAC as including claims under 42 U.S.C. § 1983 against the 7 County of Stanislaus (“County”), the City of Modesto (“City”), and three individual defendants 8 who are alleged to be County or City employees. ECF No. 3 at 4-5. Plaintiff alleged that in 2010 9 he had a marijuana debt to a documented drug dealer named Smyrni. Id. at 2 . The allegations 10 were unclear, but it appeared Plaintiff alleged that Smyrni helped entrap him because Smyrni was 11 friends with Defendant Emerson, a prosecuting district attorney. Id. Plaintiff alleged he was 12 arrested in 2011, and referred to a 2011 criminal case number. Id. He claimed that Defendants 13 conspired to create probable cause and fabricated evidence resulting in his wrongful conviction. [14] Id. Plaintiff claimed he was incarcerated in county jail for 1.5 years, however he also stated that 15 his damages were the result of serving 3,091 days. Id. at 6 . Plaintiff sought monetary damages. 16 The Court screened the FAC and informed Plaintiff of the deficiencies, including that the 17 FAC did not comply with Federal Rule of Civil Procedure 8 as it did not contain a “short and 18 plain” statement of the claim showing that Plaintiff is entitled to relief. See ECF No. 6. The 19 exact nature of what happened to Plaintiff was unclear from the FAC, other than he complained 20 of state criminal proceedings and appeared to allege that he was entrapped and wrongfully 21 convicted. 22 The order also advised that § 1983 “is not itself a source of substantive rights, but merely 23 provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 24 U.S. 386 , 393–94 (1989). ECF No. 6 at 4. A claim under § 1983 requires a plaintiff to allege 25 that defendants acting under color of state law deprived the plaintiff of a right secured by the 26 Constitution or federal statutes. Benavidez v. County of San Diego, 993 F.3d 1134, 1144 (9th Cir. 27 2021). It was not clear from the FAC what underlying constitutional or other federal rights 28 Plaintiff alleged were violated. The caption mentioned an unlawful search, but there were no 1 clear factual allegations of unlawful search. The caption similarly mentioned malicious 2 prosecution and the Fourteenth Amendment, but did not contain a short a plain statement of facts 3 supporting those conclusory assertions. 4 This Court’s prior order also informed Plaintiff that his claims appeared to be barred by 5 Heck v. Humphrey, 512 U.S. 477 , 483–87 (1994), and to be untimely, as the FAC made 6 allegations concerning events in 2010 and 2011. ECF No. 6 at 4. Despite these deficiencies, the 7 Court granted leave to amend because a pro se litigant should generally be given leave to amend 8 unless it is absolutely clear the deficiencies cannot be cured by amendment. 9 This Court directed Plaintiff as follows: “If plaintiff chooses to amend the complaint, the 10 amended complaint must allege facts supporting his allegation that his Constitutional or federal 11 statutory rights were violated. In addition, Plaintiff should address whether his state court 12 conviction was overturned on appeal, vacated, or set aside. Plaintiff should also address the 13 apparent untimeliness of his claims.” ECF No. 6 at 5. The Court’s order also directed Plaintiff to 14 resources for pro se litigants available through the Clerk’s office. 15 Plaintiff was previously cautioned that the amended complaint must not force the court 16 and the defendants to guess at what is being alleged against whom. See McHenry v. Renne, 84 17 F.3d 1172, 1177-80 (9th Cir. 1996) (affirming dismissal of a complaint where the district court 18 was “literally guessing as to what facts support the legal claims being asserted against certain 19 defendants”). Plaintiff’s SAC does not cure any of the deficiencies outlined in the prior order. 20 The SAC is a scant three pages and contains less factual content than the FAC. ECF No. 7. 21 Plaintiff alleges in conclusory fashion that he is seeking damages from Defendant Jon Evers and 22 Wendell Emerson, but the allegations do not sufficiently put Defendants on notice of the claims 23 against them as required by Rule 8. The SAC complains of an arrest that occurred on April 5, 24 2011. ECF No. 7 at 1. Plaintiff alleges the claim should not be time barred because it is “all new 25 within the past 1 year,” without explaining what that could mean in the context of events that 26 occurred in 2011. ECF No. 7 at 3. Plaintiff refers to his conviction as “erroneous,” but does not 27 allege that it has been vacated, overturned on appeal, or otherwise set aside. 28 Plaintiff’s claims concerning an April 2011 arrest are barred by the two-year statute of limitations 1 for section 1983 claims. Because § 1983 contains no specific statute of limitations, federal 2 courts borrow state statutes of limitations for personal injury actions in § 1983 suits. See Nance v. 3 Ward, 597 U.S. 159, 174 (2022) (“[A]ll § 1983 suits must be brought within a State’s statute of 4 limitations for personal-injury actions.”). In California that period of limitations is two years. 5 See Holt v. County of Orange, 91 F.4th 1013, 1018 (9th Cir. 2024). 6 Moreover, Plaintiff’s claims about an allegedly unlawful arrest is barred by the Heck 7 doctrine. See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (Heck barred plaintiff’s 8 claims that defendants lacked probable cause to arrest him and brought unfounded criminal 9 charges against him); Trice v. Modesto City Police Dep’t, No. 1:08-cv-01891-AWI, 2009 WL 10 102712 (E.D. Cal. Jan. 14, 2009) (claim of fraudulent or fabricated evidence, prosecutorial 11 misconduct, or violations of plaintiff’s right to counsel are barred by Heck); Harris v. State of 12 California, No. 07-cv-1406 BTM, 2008 WL 595880 , at *2-4 (S.D. Cal. March 3, 2008) 13 (allegations of prosecutorial conduct and other “grave unfairness” in criminal proceedings barred 14 by Heck). 15 Finally, the SAC also fails to state a claim because it lacks facts showing the violation of a 16 constitutional right. Benavidez v. County of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) 17 (elements of a § 1983 claim). 18 The Court recommends that this action be dismissed without further leave to amend. 19 Plaintiff has already filed two amended complaints, and has failed to cure the deficiencies set 20 forth in the Court’s prior screening order. Accordingly, the Court determines that further leave to 21 amend would be futile as Plaintiff has not addressed these pleading deficiencies. See Zucco 22 Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (district court’s discretion 23 to deny leave to amend is particularly broad where plaintiff has previously been granted leave to 24 amend and failed to add the requisite particularity to its claims); Allen v. City of Beverly Hills, [25] 911 F.2d 367, 373 (9th Cir. 1990) (district court’s discretion to deny leave to amend is 26 “particularly broad where the plaintiff has previously amended the complaint.”). 27 //// 28 //// 1 Il. CONCLUSION 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Plaintiff's Second Amended Complaint be dismissed without further leave to amend; and 4 2. The court close this file. 5 These findings and recommendations are submitted to the United States District Judge 6 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 21 days after 7 || being served with these findings and recommendations, plaintiff may file written objections with 8 | the court. Such document should be captioned “Objections to Magistrate Judge’s Findings and 9 | Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file objections within 10 | the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 1] | F.2d 1153 (9th Cir. 1991). 12 SO ORDERED. 13 | DATED: October 15, 2024 14 mk 15 SEAN C. RIORDAN 16 UNITED STATES MAGISTRATE JUDGE