1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, No. 2:18-cv-0425 DB P 12 Plaintiff, 13 v. ORDER FINDINGS AND

RECOMMENDATIONS

14 CITY OF ROSEVILLE, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner1 proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF Nos. 1, 5). 19 Plaintiff has also filed a request that the United States Marshal’s Office serve the defendants (see 20 ECF No. 4) as well as a “request for funds to facilitate discovery” (ECF No. 7). 21 For the reasons stated below, the court will grant plaintiff’s request to proceed in forma 22 pauperis. However, plaintiff’s requests for service and for funds will be denied. In addition, the 23 undersigned shall recommend that plaintiff’s complaint be dismissed for failure to state a claim 24 upon which relief may be granted and that the dismissal be declared a strike within the meaning 25 of 28 U.S.C. § 1915(g). 26 //// 27 1 At the time plaintiff filed the instant complaint, he was housed at the Sacramento County Main 28 Jail. See ECF No. 1 at 1. 1 I. Application to Proceed In Forma Pauperis 2 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 3 1915(a). (See ECF No. 5). Accordingly, the request to proceed in forma pauperis will be 4 granted. 5 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 6 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 7 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 8 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 9 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 10 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 11 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 12 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 13 1915(b)(2). 14 II. Screening Requirement 15 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion 16 thereof, that may have been paid, the court shall dismiss the case at any time if the court 17 determines that . . . the action or appeal is frivolous or malicious; fails to state a claim upon which 18 relief may be granted; or seeks monetary relief against a defendant who is immune from such 19 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). 20 III. Pleading Standard 21 A. Generally 22 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 23 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 24 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 25 of substantive rights, but merely provides a method for vindicating federal rights conferred 26 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 27 To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) 28 that a right secured by the Constitution or laws of the United States was violated and (2) that the 1 alleged violation was committed by a person acting under the color of state law. See West v. 2 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 8 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 9 plausibility demands more than the mere possibility that a defendant committed misconduct and, 10 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 11 B. Linkage Requirement 12 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 13 that each defendant personally participated in the deprivation of his rights. Hafer v. Melo, 473 14 U.S. 159, 166 (1985); see Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be 15 an actual connection or link between the actions of the defendants and the deprivation alleged to 16 have been suffered by plaintiff. See, e.g., Ortez v. Washington County, State of Oregon, 88 F.3d 17 804, 809 (9th Cir. 1996) (citing to Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). 18 IV. Plaintiff’s Allegations in Complaint 19 In plaintiff’s complaint, he names the City of Roseville and a Detective Adcox of the 20 Roseville Police Department as defendants. (See ECF No. 1 at 1-2). His sole claim alleges that 21 Adcox defamed him in violation of the Fourteenth Amendment when, in January 2017, he sent 22 police reports from plaintiff’s expunged convictions to a Sacramento detective. (See id. at 4). 23 Plaintiff contends that Adcox had no right to do this because the Placer County Superior Court 24 Judge who granted the expungements told plaintiff that the cases in question could never be used 25 against him “to impeach nor impu[gn] [his] good character.” (Id.) (brackets added). Plaintiff 26 further contends that the police reports were ultimately used to obtain search warrants; searches 27 that violated his privacy. (See id.). 28 //// 1 Plaintiff continues that “[t]hose rats used those reports against me to convince a few 2 judges to issue search warrants so they could violate [my] . . . privacy.” (Id.) (brackets added). 3 He also asserts that “they used [the police reports] to lie to yet another judge . . . to get two arrest 4 warrants for 6 counts of child molest[ation] and one count of failing to register as a sex offender!” 5 (ECF No. 1 at 4) (brackets added). Finally, plaintiff also appears to contend that his arrest based 6 upon the expunged records constituted a false arrest. (See id.). He seeks $100 million dollars in 7 damages. (See id. at 5). 8 V. Discussion 9 A. Plaintiff’s Defamation Claim 10 Plaintiff’s defamation claim alone does not rise to the level of a federal constitutional 11 violation. See Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976) (stating defamation itself 12 does not establish cause of action under Section 1983; it is deprivation of constitutional rights for 13 which Civil Rights Act creates remedy). “To establish a civil rights claim under 42 U.S.C. § 14 1983, a plaintiff must assert more than a violation of state tort law – he must show that the 15 defendant deprived him of an interest protected by the Constitution or federal law.” Weiner v. 16 San Diego Cty., 210 F.3d 1025, 1032 (9th Cir. 2000) (citing Paul v. Davis, 424 U.S. 693, 712 17 (1976)). Specifically, plaintiff must join his defamation claim to a recognizable Section 1983 18 wrong such as the denial of equal protection or substantive due process. See Buckey v. Cty. of 19 Los Angeles, 968 F.2d 791, 795 (9th Cir. 1992). For these reasons plaintiff’s defamation claim 20 fails. 21 Furthermore, because plaintiff fails to identify who “those rats” and “they” are in these 22 allegations, and he fails to allege any clear violation of right stemming from the use of the police 23 reports (see generally ECF No. 1), the court need not and does not attempt to determine the 24 identities of potential defendants or claims in this analysis. See Ivey v. Bd. of Regents of Univ. 25 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (stating liberal interpretation of civil rights 26 complaint may not supply essential elements of claim that were not initially pled); see generally 27 Fed. R. Civ. Proc. 8(a)(2) (requiring claims show plaintiff is entitled to relief); see also Iqbal, 556 28 U.S. at 678 (precluding threadbare recitals and conclusory statements when stating a claim); see 1 also Hafer, 473 U.S. at 166 (requiring allegation of personal participation in deprivation of 2 rights); see also Jones, 297 F.3d at 934 (same). 3 B. Additional Considerations 4 Finally, to the extent that plaintiff attempts to assert a violation of his right to privacy in 5 the complaint on the grounds that Adcox improperly used plaintiff’s police reports (see ECF No. 6 1 at 4) (plaintiff stating issued warrants led to violation of right to privacy), the information 7 contained in a police report is not protected under the constitutional right to privacy. See Paul, 8 424 U.S. at 713-14 (finding disclosure of arrest on shoplifting charge not protected under Court’s 9 substantive privacy decisions); see also Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d 10 1041, 1045 (9th Cir. 1994) (citing Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3rd Cir. 11 1991) (stating information in police report not constitutionally protected under right to privacy)); 12 see generally Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969). 13 VI. Plaintiff’s Service and Funding Requests 14 Plaintiff’s request that the United States Marshal serve defendants (see ECF No. 4) is 15 premature given that proper defendants and claims have yet to be identified. In addition, 16 plaintiff’s request for $500.00 per month in “pro se money” so that he may “facilitate discovery 17 and other advances” (see ECF No. 7) cannot be granted, as “pro se money” does not exist. 18 Consequently, these two requests will be denied. 19 VII. Conclusion 20 In sum, plaintiff’s complaint fails to state a claim upon which relief may be granted. See 21 28 U.S.C. § 1915A(b)(1). In addition, plaintiff’s requests are improper and must be denied. 22 Given that the deficiencies identified herein cannot be cured by amendment, the court will deny 23 plaintiff leave to amend the complaint. Hartmann v. CDCR, 707 F3d 1114, 1130 (9th Cir. 2013) 24 (“A district court may deny leave to amend when amendment would be futile.”); accord Lopez v. 25 Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a 26 complaint lacks merit entirely.”). Instead, the undersigned will recommend that this action be 27 dismissed and that it be formally declared a strike pursuant to 28 U.S.C. § 1915(g). 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of Court randomly assign a District Court Judge to this action; 3 2. Plaintiff's motion to proceed in forma pauperis, filed March 26, 2018 (ECF No. 5), is 4 | GRANTED; 5 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 7 | 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 | appropriate agency filed concurrently herewith; 9 4. Plaintiff's request that the United States Marshal serve defendants, filed March 26, 10 | 2018 (ECF No. 4), is DENIED, and 11 5. Plaintiff's request for funds to facilitate discovery, filed April 9, 2018 (ECF No. 7), is 12 | DENIED. 13 IT IS FURTHER RECOMMENDED that 14 1. This action be DISMISSED with prejudice for failure to state a claim upon which 15 | relief may be granted, and 16 2. The dismissal of this matter be formally declared a “strike” pursuant to 28 U.S.C. § 17 | 1915(g). 18 These findings and recommendations are submitted to the United States District Judge 19 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 20 | after being served with these findings and recommendations, plaintiff may file written objections 21 | with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 22 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 | time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 24 | (9th Cir. 1991). 25 || Dated: October 21, 2019 26 27 DB ORDERS/ORDERS PRISONER.CIVIL RIGHTS 28 , , ‘BORAH BARNES oN ITED STATES MAGISTRATE JUDGE