1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, Case No.: 1:19-cv-01180-AWI-SKO 12 Plaintiff,

ORDER GRANTING APPLICATION TO

13 v. PROCEED IN FORMA PAUPERIS AND

DIRECTING PAYMENT

14 KEVIN COOK, Kings County Deputy OF INMATE FILING FEE BY CALIFORNIA District Attorney, STEVEN NGUYEN, DEPARTMENT OF CORRECTIONS AND 15 Kings County Deputy District Attorney, REHABILITATION and KEITH FAGUNDES, Kings County 16 District Attorney, ORDER GRANTING LEAVE TO AMEND

COMPLAINT

17 Defendants. (Docs. 1, 2) 18

19 ORDER 20 Plaintiff is a prisoner proceeding pro se and has requested leave to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915. (Docs. 1, 2.) Plaintiff’s prison trust account statement was filed on 22 November 22, 2019. (Doc. 7.) For the reasons stated below, Plaintiff’s motion to proceed in forma 23 pauperis is GRANTED, and Plaintiff is granted leave to file a first amended complaint. 24

I. Request to Proceed In Forma Pauperis

25 26 Plaintiff has made the showing required by § 1915(a) and accordingly, the request to 27 proceed in forma pauperis will be granted. Plaintiff is obligated to pay the statutory filing fee of 28 1 in the amount of twenty percent of the preceding month’s income credited to Plaintiff’s trust 2 account. The California Department of Corrections and Rehabilitation is required to send to the 3 Clerk of Court payments from Plaintiff’s account each time the amount in the account exceeds 4 $10.00, until the statutory filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 5

II. Screening Requirement

6 7 A. Legal Standard 8 The Court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 10 Plaintiff’s Complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, 11 if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a 12 defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 13 1915(e)(2)(B)(ii). 14 15 A complaint must contain “a short and plain statement of the claim showing that the pleader 16 is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 18 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 19 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required 20 to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 21 2009) (internal quotation marks and citation omitted). 22 23 Persons proceeding pro se are entitled to have their pleadings liberally construed and to 24 have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations 25 omitted). To survive screening, Plaintiff’s claims must be facially plausible, which requires 26 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 27 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. United States 28 1 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 2 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 3 plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 4 B. Plaintiff’s Allegations 5 Plaintiff’s complaint alleges claims under 42 U.S.C. § 1983 against Defendants for 6 7 violations of Plaintiff’s First Amendment rights and Fourteenth Amendment due process rights. 8 (Doc. 1 at 7–8.) Defendant Keith Fagundes is the District Attorney of Kings County, California 9 and Defendants Kevin Cook and Steven Nguyen are Deputy District Attorneys. (Id. at 6–7.) 10 Plaintiff alleges that on April 25, 2018, correctional officers at California State Prison- 11 Corcoran, where Plaintiff is incarcerated, assaulted him. (Id. at 7.) On May 22, 2018, one of the 12 correctional officers allegedly filed a false complaint with Defendants claiming Plaintiff threatened 13 him. (Id. at 8.) On June 4, 2018, Plaintiff demanded that Defendants prosecute him and “give him 14 15 his right in court” in response to the correctional officer’s complaint, but Defendants responded 16 that “a review of their records [did] not reveal any outstanding cases on Plaintiff” that would cause 17 Defendants to prosecute him. (Id.) 18 Believing he would not be prosecuted for his altercation with the correctional officers, 19 Plaintiff then filed civil actions against the correctional officers for assaulting him. (Id. at 9.) The 20 civil cases later settled, and with the civil cases resolved, Defendants charged Plaintiff criminally 21 in February 2019 with battery on the correctional officers. (Id.) In July 2019, Defendants filed 22 23 another criminal complaint charging Plaintiff with battery on another correctional officer. (Id.) 24 Defendants filed a third criminal complaint charging Plaintiff with threatening the correctional 25 officer who submitted the allegedly false complaint against Plaintiff back in May 2018. (Id.) 26 In the first claim for relief, Plaintiff alleges that Defendants charged and “maliciously 27 prosecuted” him in retaliation for exercising his First Amendment rights by complaining about the 28 1 correctional officers assaulting Plaintiff and other prisoners, and for filing civil actions against the 2 correctional officers. (Id. at 7, 11–12.) In the second claim for relief, Plaintiff alleges that 3 Defendants violated his due process rights by not charging him immediately after he demanded to 4 be charged in June 2018, and instead charging him only after his civil actions against the 5 correctional officers were resolved. (Id. at 8, 13.) Plaintiff seeks compensatory damages in the 6 7 amount of $250,000 and punitive damages in the amount of $250,000. (Id. at 14.) Plaintiff also 8 seeks injunctive relief in the form of an “order from the court ordering Defendants . . . to adhere to 9 all California laws and legal regulations of the Constitution.” (Id.) 10 C. Plaintiff’s § 1983 Claims Are Not Cognizable as Currently Pleaded 11 In pertinent part, 42 U.S.C. § 1983 provides that “[e]very person who, under color of any 12 statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 13 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within 14 15 the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 16 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other 17 proper proceeding for redress . . . .” (emphasis added). 18 Although unclear, it appears that Plaintiff’s claims under § 1983 are brought against 19 Defendants in their official capacity. (See Doc. 1 at 6–7.) “[S]tate officials sued in their official 20 capacities . . . are not ‘persons’ within the meaning of § 1983 . . . .” Flint v. Dennison, 488 F.3d 21 816, 825 (9th Cir. 2007); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). In 22 23 addition, “[t]he Eleventh Amendment bars actions for damages against state officials who are sued 24 in their official capacities in federal court.” Dittman v. California, 191 F.3d 1020, 1026 (9th Cir. 25 1999). By contrast, a state official sued in his official capacity for “prospective injunctive relief” 26 is considered a “person” under § 1983, and the Eleventh Amendment does not bar such claims. See 27 Flint, 488 F.3d at 825. 28 1 Plaintiff seeks money damages and injunctive relief against Defendants. (Doc. 1 at 14.) To 2 the extent Plaintiff’s § 1983 claims are brought against Defendants in their official capacities, the 3 claims are not cognizable insofar as they request money damages. The Court will grant Plaintiff 4 leave to amend his complaint to attempt to state claims under § 1983 against the named individual 5 defendants in their personal capacities. “Personal-capacity suits seek to impose personal liability 6 7 upon a government official for actions he takes under color of state law.” Kentucky v. Graham, 8 473 U.S. 159, 165 (1985). Liability in a personal-capacity suit can be demonstrated by showing 9 that the official, acting under color of state law, caused the deprivation of a federal right. See id. at 10 166. 11 Plaintiff also alleges in the first claim for relief that Defendants “maliciously prosecuted” 12 him, but brings the claim as a First Amendment retaliation claim as opposed to a malicious 13 prosecution claim. (See Doc. 1 at 7, 11.) The Court will also allow Plaintiff to amend his complaint 14 15 to clarify whether he is alleging a malicious prosecution claim. To the extent Plaintiff wishes to 16 allege a malicious prosecution claim under § 1983 against the individual defendants in their 17 personal capacities, he must plead tortious conduct by the defendant under the elements of a state 18 law malicious prosecution claim, as well as allege that the defendants acted under color of state law 19 for the purpose of denying him equal protection or another a specific constitutional right. Poppell 20 v. City of San Diego, 149 F.3d 951, 961 (9th Cir. 1998); see also Awabdy v. City of Adelanto, 368 21 F.3d 1062, 1066 (9th Cir. 2004) (“In order to prevail on a § 1983 claim of malicious prosecution, 22 23 a plaintiff must show that the defendants prosecuted [him] with malice and without probable cause, 24 and that they did so for the purpose of denying [him] equal protection or another specific 25 constitutional right.”); Usher v. City of L.A., 828 F.2d 556, 562 (9th Cir. 1987) (a malicious 26 prosecution claim is not generally cognizable federally if the state judicial system provides a 27 remedy, but “an exception exists to the general rule when a malicious prosecution is conducted 28 1 with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject 2 a person to a denial of constitutional rights”). In addition, to prevail on a malicious prosecution 3 claim under § 1983, Plaintiff must establish that the prior proceedings terminated in such a manner 4 as to indicate his innocence, and that charges were not withdrawn on the basis of a compromise 5 among the parties. Awabdy, 368 F. 3d at 1068 (emphasis added). See also Sanders v. Matthew, 6 7 No. 15-CV-395 LJO-EPG, 2016 WL 7210115, at *4 (E.D. Cal. Dec. 12, 2016) (dismissing the 8 plaintiff’s malicious prosecution claim where the plaintiff pleaded nolo contendere to a 9 misdemeanor charge, resulting in a felony charge being dismissed, because the allegations showed 10 that the proceedings had not “terminated in such a manner as to indicate his innocence.”). 11 Finally, Plaintiff is advised that state prosecutors are entitled to absolute prosecutorial 12 immunity from claims under § 1983 when they are acting pursuant to their official role as advocate 13 for the state performing functions “intimately associated with the judicial phase of the criminal 14 15 process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Courts have held that the filing of a 16 criminal complaint in state court is an activity protected by absolute prosecutorial immunity. See, 17 e.g., Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (upholding district court’s finding 18 on summary judgment that the decision to file a criminal complaint against the defendant in state 19 court was protected by absolute prosecutorial immunity.); Geiche v. City & Cty. of San Francisco, 20 No. C 08–3233 JL, 2009 WL 1948830, at *4 (N.D. Cal. July 2, 2009) (“Here, named defendant 21 Steger is alleged to have done (and in fact did) nothing more than sign the charging instrument 22 23 against Plaintiff. Filing the criminal complaint was an essential part of instigating the criminal 24 prosecution and such conduct is entitled to absolute immunity.”) (citing Demery v. Kupperman, 25 735 F.2d 1139, 1144 (9th Cir. 1984); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 26 675, 679 (9th Cir.1984); Freeman on Behalf of the Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir. 27 1983)). 28 1 D. Plaintiff May File an Amended Complaint 2 Plaintiff’s complaint fails to state cognizable claims under 42 U.S.C. § 1983 against 3 Defendants. However, “Rule 15(a) [of the Federal Rules of Civil Procedure] is very liberal and 4 leave to amend ‘shall be freely given when justice so requires.’” AmerisourceBergen Corp. v. 5 Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting former version of Fed. R. Civ. P. 6 7 15(a)). See also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so 8 requires.”). As Plaintiff is proceeding pro se, he shall be given an opportunity to amend his claims 9 to cure the identified deficiencies to the extent he can do so in good faith. 10 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 11 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 12 U.S. at 678–79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 13 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 14 15 Plaintiff is advised that an amended complaint supersedes the original complaint. See Lacey 16 v. Maricopa Cty., 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc). The amended complaint must 17 be “complete in itself without reference to the prior or superseded pleading.” E.D. Cal. L.R. 220. 18 Once Plaintiff files an amended complaint, the original pleading no longer serves any function in 19 the case. Therefore, in an amended complaint, as in an original complaint, each claim and the 20 involvement of each defendant must be sufficiently alleged. Plaintiff may not change the nature of 21 this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 22 23 605, 607 (7th Cir. 2007). If Plaintiff fails to file an amended complaint or fails to cure the 24 deficiencies identified above, the Court will recommend that the complaint be dismissed with 25 prejudice and without leave to amend. 26

27

28 1 III. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s application to proceed in forma pauperis (Doc. 2) is GRANTED; 4 2. The Director of the California Department of Corrections and Rehabilitation 5 or his designee shall collect payments from Plaintiff’s prison trust account in an amount equal 6 7 to twenty percent (20%) of the preceding month’s income credited to the prisoner’s trust 8 account, and shall forward those payments to the Clerk of Court each time the amount in the 9 account exceeds $10.00, in accordance with 28 U.S.C. § 1915(b)(2), until a total of $350.00 has 10 been collected and forwarded to the Clerk of Court. The payments shall be clearly identified 11 by the name and number assigned to this action. 12 3. The Clerk of Court is directed to serve a copy of this order and a copy of Plaintiff’s 13 in forma pauperis application on the Director of the California Department of Corrections and 14 15 Rehabilitation, via the court’s electronic case filing system (CM/ECF). 16 4. The Clerk of Court is directed to serve a copy of this order on the Financial 17 Department, U.S. District Court, Eastern District of California. 18 5. Plaintiff is granted leave to file a first amended complaint. 19 6. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 20 amended complaint or a notice of voluntary dismissal. 21 7. If Plaintiff fails to file an amended complaint or notice of voluntary dismissal 22 23 in compliance with this order, the undersigned will recommend to the assigned district judge 24 that this action be dismissed for failure to state a claim and to obey a court order. 25

26

IT IS SO ORDERED.

27 Sheila K. Oberto Dated: December 9, 2019 /s/ . 28