INTRODUCTION

20 On May 15, 2024, Plaintiff Paul L. Pipitone (“Plaintiff”), proceeding pro se, 21 filed a Complaint (the “Complaint”) against the following defendants in their 22 individual and official capacities: (1) Deputy Matthew Barksdale; (2) Deputy 23 Nicholas Anthony; (3) Deputy Luke Rittering; (4) Deputy Bernard; (5) Deputy 24 Chris Langston, Sergeant; (6) San Luis Obispo County Sheriff Ian Parkinson; (7) 25 Assistant District Attorney Ashley Cervera; and (8) “John Does & Jane Roes I-V.” 26 (Dkt. 1.) On May 23, 2024, the Court screened the Complaint and issued an order 27 dismissing the Complaint with leave to amend. (Dkt. 6.) On August 2, 2024, 28 1 Plaintiff filed First Amended Complaint (“FAC”) that named the same defendants 2 as the initial complaint and added three new defendants: (1) M. Conde, supervisor 3 of the San Luis Obispo County Sheriff Records Department; (2) Jenn Mebane, 4 training supervisor at the SLO County Sheriff’s office; and (3) San Luis Obispo 5 County Superior Court Judge Jesse Marino. (Dkt. 12 at 12.) On August 26, 2024, 6 the Court dismissed Plaintiff’s FAC with leave to amend and directed Plaintiff to 7 file a Second Amended Complaint (“SAC”). (Dkt. 14.) Plaintiff’s FAC was 8 dismissed in part on the basis that Plaintiff’s ongoing criminal proceedings 9 implicated the Younger abstention doctrine. (Dkt. 14 at 4.) Those proceedings 10 now appear to have concluded.1 11 On September 24, 2024, Plaintiff filed a SAC which names San Luis Obispo 12 County Deputy Sheriff Matthew Barksdale as the sole defendant. (Dkt. 15 at 2.) 13 On September 29, 2024, Plaintiff filed a “Corrected Second Amended Complaint” 14 which appears identical to the SAC filed on September 24, 2024. (Dkt. 16.) 15 Plaintiff’s SAC alleges claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985 and 42 16 U.S.C. § 1986. (Dkt. 15 at 2.) For the reasons discussed below, the Court 17 DIMISSES both versions of the SAC for failure to state a claim upon which relief 18 can be granted, but grants Plaintiff leave to amend.

19

II.

20

STANDARD FOR DISMISSAL OF PRO SE COMPLAINT

21 22 Under Federal Rule of Civil Procedure 12(b)(6), a trial court may dismiss a 23 claim sua sponte “where the claimant cannot possibly win relief.” Omar v. Sea- 24 Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Baker v. Dir., U.S. 25 Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (per curiam) (adopting the 26 Ninth Circuit’s position in Omar and noting that such a sua sponte dismissal “is 27 1 See https://www.slo.courts.ca.gov/online-services/online-case-lookup, Search 28 Case No. “21F-08456,” September 25, 2024 Sentencing. 1 practical and fully consistent with plaintiff’s rights and the efficient use of judicial 2 resources”). The Court’s authority in this regard includes sua sponte dismissal of 3 claims against defendants who have not been served and defendants who have not 4 yet answered or appeared. See Abagnin v. AMVAC Chem. Corp., 545 F.3d 733, 5 742-43 (9th Cir. 2008); see also Reunion, Inc. v. F.A.A., 719 F. Supp. 2d 700, 701 6 n.1 (S.D. Miss. 2010) (“[T]he fact that [certain] defendants have not appeared and 7 filed a motion to dismiss is no bar to the court’s consideration of dismissal of the 8 claims against them for failure to state a claim upon which relief can be granted, 9 given that a court may dismiss any complaint sua sponte for failure to state a claim 10 for which relief can be granted pursuant to Rule 12(b)(6).”). In civil actions where 11 the plaintiff is proceeding in forma pauperis (“IFP”), Congress requires district 12 courts to dismiss the complaint if the court determines that the complaint, or any 13 portion thereof, (1) is frivolous or malicious, (2) fails to state a claim upon which 14 relief can be granted, or (3) seeks monetary relief from a defendant who is immune 15 from such relief. 28 U.S.C. § 1915(e)(2). 16 Moreover, when a plaintiff appears pro se in a civil rights case, the court 17 must construe the pleadings liberally and afford the plaintiff the benefit of any 18 doubt. See Karim-Panahi v. Los Angeles Police Dep’t., 839 F.2d 621, 623 (9th Cir. 19 1988). In giving liberal interpretation to a pro se complaint, the court may not, 20 however, supply essential elements of a claim that were not initially pled. See Pena 21 v. Gardner, 976 F.2d 469, 471-72 (9th Cir. 1992). A court must give a pro se 22 litigant leave to amend the complaint unless it is “absolutely clear that the 23 deficiencies of the complaint could not be cured by amendment.” Karim-Panahi, 24 839 F.2d at 623 (internal quotation marks omitted). 25 26 III. 27 SUMMARY OF THE SAC’S ALLEGATIONS 28 Plaintiff alleges the following factual background in support of his claims: 1 Beginning in June 2022, Deputy Barksdale conducted “research” on Plaintiff 2 by unlawfully using databases without authorization. (Dkt. 15 at 2.) On July 13, 3 2022, Plaintiff was in court on a previous matter (21F-08456) and was released on 4 his own recognizance “with terms.” (Id.) On July 17, 2022, Deputy Barksdale 5 unlawfully detained Plaintiff without a warrant, reasonable suspicion, or reasonable 6 cause. (Id.) Deputy Barksdale then entered private property at 1395 20th Street, 7 Oceano, CA., 93445 and unlawfully began a four-hour search of Plaintiff, his car, 8 and his home. (Id. at 3.) The search concluded with Plaintiff’s arrest. (Id.) On 9 July 17, 2022, Deputy Barksdale wrote an incident report that Plaintiff attaches to 10 the SAC as Exhibit A/1. (Id. at 3, 15-19.) 11 On September 9, 2022, Deputy Barksdale testified regarding the events of 12 July 17, 2022 at a probable cause hearing in Plaintiff’s criminal proceedings. (Id. at 13 3.) In July 2023, Deputy Barksdale again testified regarding the events of July 17, 14 2022 at a suppression hearing in Plaintiff’s criminal proceedings. (Id. at 4.) 15 16 IV. 17 DISCUSSION 18 A. Deputy Barksdale Is Entitled to Witness Immunity For His Testimony 19 At The Probable Cause And Suppression Hearings. 20 “Witnesses, including police officers, are absolutely immune from liability 21 for testimony at trial.” Lisker v. City of Los Angeles, 780 F.3d 1237, 1241 (9th 22 Cir. 2015). This “[a]bsolute witness immunity also extends to preparatory activities 23 inextricably tied to testimony, such as conspiracies to testify falsely.” Id. (internal 24 quotations omitted). Such immunity covers “adversarial pretrial hearings” as well. 25 See Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir. 1987) (“[W]itnesses who testify 26 in court at adversarial pretrial hearings are absolutely immune from liability under 27 section 1983 for damages allegedly caused by their testimony.”). 28 The claims pled in the SAC appear to be premised on Deputy Barksdale’s 1 testimony at pre-trial hearings that occurred in Plaintiff’s criminal proceedings in 2 September of 2022 and July of 2023. (Dkt. 15 at 4.) Thus, Deputy Barksdale 3 would be entitled to witness immunity in this action to the extent Plaintiff’s claims 4 arise from that testimony. The same is true for any statement Deputy Barksdale 5 made in an affidavit offered in pre-trial proceedings. See Burns v. Cnty. of King, 6 883 F.2d 819, 822 (9th Cir. 1989) (“Under the analysis of Briscoe and Holt, 7 Warwick is entitled to absolute immunity for the statements made in her affidavit to 8 the court.”). Accordingly, to the extent Plaintiff seeks to allege Section 1983 9 claims against Deputy Barksdale based on the Deputy’s testimony at adversarial 10 pretrial proceedings in Plaintiff’s criminal prosecution, those claims are subject to 11 dismissal on the basis of witness immunity. 12 B. Conditions Of Plaintiff’s Release Awaiting Trial May Limit His Ability 13 To Recover For Fourth Amendment Violations Under Section 1983. 14 Plaintiff alleges that Deputy Barksdale unlawfully gathered information on 15 him “using data[b]ases without authorization,” unlawfully detained him without 16 “reasonable suspicion,” and unlawfully entered his property to conduct a four-hour 17 search and seizure. (Dkt. 15 at 2-3.) Plaintiff is advised that to the extent he seeks 18 to allege a Fourth Amendment claim based on events that occurred while he was on 19 parole, probation, or supervised release, “the Fourth Amendment does not prohibit 20 a police officer from conducting a suspicionless search of a parolee.” Samson v. 21 California, 547 U.S. 843, 857 (2006), United States v. Betts, 511 F.3d 872, 876 (9th 22 Cir. 2007) (applying Samson to those on supervise release). Further, “[p]olice or 23 parole officers may lawfully conduct searches of parolees or their residences 24 without satisfying the Fourth Amendment’s warrant requirement when” (1) “the 25 parolee is subject to a provision authorizing such warrantless searches”; and (2) the 26 searching officers “have probable cause to believe that the parolee is a resident of 27 the house to be searched.” United States v. Grandberry, 730 F.3d 968, 973 (9th Cir. 28 2013). 1 In the SAC, Plaintiff states that he was in court on July 13, 2022 regarding a 2 previous matter and was released on his own recognizance “with terms.” (Dkt. 15 3 at 2.) Deputy Barksdale’s incident report states that Plaintiff had agreed on July 13, 4 2022 to “submit upon demand of peace officer/probation officer to search of 5 person, personal property, residence, and/or vehicle owner or being operated by 6 defendant without warrant, with or without probable cause, any time of day or 7 night.” (Id. at 17.) The allegedly unlawful searches and seizures took place on July 8 17, 2022. (Id. at 2-3.) Thus, it appears that Deputy Barksdale would not have 9 violated Plaintiff’s Fourth Amendment rights by searching his person or his 10 residence, as long as Deputy Barksdale had probable cause to believe the residence 11 searched belonged to Plaintiff. Deputy Barksdale’s incident report states that on 12 July 17, 2022, Plaintiff told Deputy Barksdale that he lived in the “first bedroom on 13 right side of the house” in question and “owned a grey car that was parked in the 14 drive way.” (Id. at 17.) Thus, it is unclear how Plaintiff could claim that Deputy 15 Barksdale lacked probable cause to believe the residence searched on July 17, 2022 16 belonged to Plaintiff. 17 C. Plaintiff’s Other Claims Are Subject To Dismissal. 18 Plaintiff alleges that the events described in the SAC also violated his First, 19 Fifth, Eighth, and Fourteenth Amendment rights. (Id. at 4.) However, Plaintiff 20 does not make any factual allegations that would support a First, Fifth, Eighth, or 21 Fourteenth Amendment claim, and therefore, to the extent Plaintiff intended to 22 plead those claims, they are subject to dismissal. Finally, “Section 1985(3) 23 provides no substantive rights itself; it merely provides a remedy for violation of 24 the rights it designates.” Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 25 366, 372 (1979). Accordingly, since Plaintiff fails to state a claim regarding 26 constitutional violations under Section 1983, he also fails to state a claim under 42 27 U.S.C. § 1985 and 42 U.S.C. § 1986. See White v. Rockafellow, 181 F.3d 106 (6th 28 Cir. 1999) (“As no constitutional violation occurred, White also had no cause of 1 |} action under § 1985(3) or § 1986.”). 2 3 V. 4 ORDER 5 Based on the foregoing, the SAC is dismissed with leave to amend. On or 6 || before October 31, 2024, Plaintiff shall file a Third Amended Complaint (“TAC”) 7 || that attempts to remedy the identified defects. If Plaintiff chooses to file a TAC, it 8 || should bear the docket number assigned to this case (2:24-cv-04072-PSG-AJR), be 9 || labeled “Third Amended Complaint,” and be complete in and of itself without 10 || reference in any manner to the original Complaint, the FAC, SAC, or any other 11 || document (except any document that Plaintiff chooses to attach to the TAC as an 12 || exhibit). Plaintiff is encouraged to state his claims 1n simple language and provide 13 || only a brief statement of supporting facts, omitting facts that are not relevant. 14 || Should Plaintiff decide to file a SAC, he is encouraged to utilize the Pro Se 15 form 15 || complaint attached to this Order. 16 Plaintiff is explicitly cautioned that failure to timely file a TAC, or 17 || failure to correct the deficiencies described above, may result in a 18 || recommendation that this action or certain claims be dismissed with prejudice. 19 || Plaintiff is further advised that if he no longer wishes to pursue this action, he may 20 || voluntarily dismiss the action by filing a Notice of Dismissal in accordance with 21 || Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached 22 || for Plaintiff's convenience. 23 24 || DATED: October 1, 2024 . °° a A. JOEL RICHLIN 26 UNITED STATES MAGISTRATE JUDGE Attachments: 28 || CV-09, Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or

1 (c). Pro Se 15, Complaint for Violation of Civil Rights (Non-Prisoner), available at 2 https://www.uscourts.gov/forms/pro-se-forms/complaint-violation-civil-rights-non- 3 prisoner.

4

5

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28