I. INTRODUCTION

17 18 Plaintiff, Harold Walker, is a prisoner in the custody of Fresno County Jail. On October 31, 19 2019, Plaintiff, proceeding pro se, filed a civil complaint against eight officers of the Fresno Police 20 Department and three employees of Grocery Outlet. (Doc. 1 (“Compl.”).) Plaintiff purports to 21 allege causes of action under 42 U.S.C. § 1983 (“Section 1983”) for “making false statement[s] to 22 police,” false arrest, “false prosecution,” excessive force, and municipal liability in violation of his 23 Fourth and Fourteenth Amendment rights and rights under the California Constitution. (Id. at 5–7.) 24 Plaintiff seeks compensatory and punitive damages in the amount of $98,000,000. (Id. at 8.) 25 Plaintiff also filed an application to proceed in forma pauperis, which was granted on November 5, 26 2019. (Docs. 2 & 3.) 27 Plaintiff’s complaint is now before the Court for screening. The Court finds Plaintiff may 28 be able to state some cognizable claims. However, as discussed more fully below, the Court cannot 1 determine whether his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Thus, Plaintiff 2 is provided the pleading and legal standards for his claims and is granted leave to file a first amended 3 complaint. 4 A. Screening Requirement and Standard 5 The Court is required to screen complaints in cases where the plaintiff is proceeding in forma 6 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 7 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, 8 or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 28 9 U.S.C. § 1915(e)(2)(B). If the Court determines that the complaint fails to state a claim, leave to 10 amend may be granted to the extent that the deficiencies of the complaint can be cured by 11 amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 12 The Court’s screening of the complaint is governed by the following standards. A complaint 13 may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a 14 cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. 15 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff must allege a minimum factual 16 and legal basis for each claim that is sufficient to give each defendant fair notice of what Plaintiff’s 17 claims are and the grounds upon which they rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 18 193, 199 (9th Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 19 B. Pleading Requirements 20 1. Federal Rule of Civil Procedure 8(a) 21 Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a short and plain 22 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 24 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 25 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In determining 26 whether a complaint states a claim on which relief may be granted, allegations of material fact are 27 taken as true and construed in the light most favorable to the plaintiff. See Love v. United States, 28 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since Plaintiff is appearing pro se, the Court must 1 construe the allegations of his complaint liberally and must afford Plaintiff the benefit of any doubt. 2 See Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the 3 liberal pleading standard . . . applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 4 490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not supply 5 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 6 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 7 1982)). 8 Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 9 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 10 action will not do . . . . Factual allegations must be enough to raise a right to relief above the 11 speculative level.” See Twombly, 550 U.S. at 555 (internal citations omitted); see also Iqbal, 556 12 U.S. at 678 (To avoid dismissal for failure to state a claim, “a complaint must contain sufficient 13 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has 14 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 15 reasonable inference that the defendant is liable for the misconduct alleged.”) (internal citations 16 omitted). 17 2. Linkage Requirement 18 Section 1983 requires that there be an actual connection or link between the actions of the 19 defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department 20 of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit 21 has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the 22 meaning of [S]ection 1983, if she does an affirmative act, participates in another’s affirmative acts 23 or omits to perform an act which she is legally required to do that causes the deprivation of which 24 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). To state a claim for relief 25 under Section 1983, Plaintiff must link each named defendant with some affirmative act or omission 26 that demonstrates a violation of Plaintiff’s federal rights. Plaintiff must clearly identify which 27 Defendant(s) he believes are responsible for each violation of his constitutional rights and the 28 supporting factual basis because his complaint must put each Defendant on notice of Plaintiff’s 1 claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 2 II. DISCUSSION 3 A. Plaintiff’s Allegations 4 Plaintiff alleges that on the evening of September 22, 2019, after purchasing items at Grocery 5 Outlet, he was approached in the parking lot by Defendant Andrew Mena, the manager of Grocery 6 Outlet, and was accused of shoplifting items from the store. (Doc. 1 (“Compl.”) at 5.) Plaintiff then 7 returned inside the store and spoke with Defendant Jasmine Arreola, a Grocery Outlet cashier. 8 Plaintiff asked Defendant Arreola “the name of the man who came outside and accused me of 9 stealing from the store because he was defaming my name.” (Id.) According to Plaintiff, Defendant 10 Mena then called the police and reported Plaintiff was “harassing the staff.” (Id.) 11 Plaintiff alleges that later in the evening Defendants Fresno Police Officers Jason Laird and 12 Yanet Santiago made contact with him while he was in his vehicle. (Compl. at 3, 6.) According to 13 Plaintiff, when Plaintiff exited the car, Defendant Laird ordered Plaintiff to “get on your [expletive] 14 knees.” (Id.) When Plaintiff leaned against his car, Defendant Laird fired his taser gun at him, 15 causing him to fall to the ground. (Id.) Plaintiff alleges that Defendants Laird and Santiago, as well 16 as other unknown Fresno Police Officers, “began kicking and kneeing” him. (Id.) According to 17 Plaintiff, Defendant Laird kept yelling at him to “stop resisting,” picked him up “about 3 feet off 18 the ground,” and “drop[ped] [him] face first on the ground causing head, neck, and back injuries.” 19 (Id.) 20 Finally, Plaintiff alleges that at the time of the above-described incident, “Defendant” had 21 customs, practices, and policies of “allowing police officers to cover up excessive use of force,” 22 “allowing an ongoing pattern of deliberate indifference” to the rights to be free from excessive force 23 and unreasonable seizures, and “failing to provide criteria for the use of excessive and unnecessary 24 force.” (Id. at 7.) 25 Plaintiff claims that Defendants Arreola’s and Mena’s “false statements” caused his civil 26 and constitutional rights to be violated “by the Fresno Police and the City of Fresno,” including his 27 right to be free from illegal arrest, excessive force, and unlawful prosecution. (Id. at 5–7.) 28 /// 1 2 Plaintiff’s complaint fails plausibly to allege that Defendants Arreola and Mena acted under 3 color of state law—an essential element to the maintenance of a Section 1983 claim. 4 1. Pertinent Law 5 To state a claim under Section 1983, a plaintiff must allege a deprivation of a constitutional 6 right under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). An 7 individual defendant is not liable for a civil rights violation unless the facts establish that the 8 defendant’s personal involvement in some constitutional deprivation or a causal connection between 9 the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 10 885 F.2d 642, 646 (9th Cir.1989); Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978); see also 11 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (person deprives another of constitutional right 12 if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act 13 which he is legally required to do that causes deprivation of which plaintiff complains) (citation 14 omitted). Supervisory personnel generally are not liable for civil rights violations on any theory of 15 respondeat superior or vicarious liability in the absence of law imposing such liability. Redman v. 16 Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991); Hansen, 885 F.2d at 645–46. A supervisor 17 is liable for constitutional violations of a subordinate only “if the supervisor participated in or 18 directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 19 880 F.2d 1040, 1045 (9th Cir. 1989). 20 Private individuals and entities not affiliated with a state or municipal government generally 21 do not act “under color of state law.” See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 22 916, 922 (9th Cir. 2011) (“We start with the presumption that conduct by private actors is not state 23 action.”); Price v. State of Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991) (“[P]rivate parties are not 24 generally acting under color of state law.”). While such private parties may a cause a deprivation 25 of a constitutional right, they are not subject to Section 1983 liability unless (1) they acted under 26 color of law, and (2) their conduct was properly attributable to the government. Flagg Brothers, 27 Inc. v. Brooks, 436 U.S. 149, 156 (1978); Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 28 133, 134–36 (9th Cir. 1971) (violations of certain constitutional rights actionable under federal law 1 only when accomplished by one who is clothed with authority of state and purporting to act 2 thereunder) (citations and internal quotations omitted); see also Lugar v. Edmondson Oil Co., Inc., 3 457 U.S. 922, 936–37 (1982) (private corporation does not act under color of law unless its actions 4 are fairly attributable to the government). 5 The actions of a private individual or entity may properly be attributed to the government 6 for purposes of Section 1983 if at the time of an alleged constitutional violation (1) the private actor 7 was performing a public function; (2) the private actor was engaged in joint activity with the 8 government; (3) the private party acted under governmental compulsion or coercion; or (4) there 9 was a sufficient nexus between the government and the private actor. Kirtley v. Rainey, 326 F.3d 10 1088, 1092 (9th Cir. 2003) (recognizing “at least four . . . tests” for determining whether private 11 conduct amounts to state action) (citations and quotation marks omitted). Plaintiff has the burden 12 to establish state action under one of the foregoing tests. Florer, 639 F.3d at 922; see also Kirtley, 13 326 F.3d at 1092 (“Satisfaction of any one test is sufficient to find state action, so long as no 14 countervailing factor exists.”). 15 2. Analysis 16 Here, Plaintiff does not plausibly allege that the conduct of Defendants Arreola and Mena— 17 private grocery store employees—amounted to state action under any of the foregoing tests. 18 First, under the “public function test,” private individuals or entities are deemed to be state 19 actors for purposes of Section 1983 when they perform a public function that is “both traditionally 20 and exclusively governmental.” Kirtley, 326 F.3d at 1093 (citations and internal quotation marks 21 omitted). Here, even assuming that Defendant Mena suspected and accused Plaintiff of shoplifting, 22 the complaint does not plausibly allege that Defendant Mena acted pursuant to an exclusive 23 governmental function (e.g., “the police power”) at any time during his encounter with Plaintiff. 24 See, e.g., Kidd v. Marshalls of California, LLC, No. SA CV 11–1536–PSG (PJW), 2012 WL 25 833027, *2 (C.D. Cal. Jan. 17, 2012) (“seizing and detaining shoplifters is not a traditional 26 government function [under California law]”) (citations omitted). See also White v. Scrivner Corp., 27 594 F.2d 140, 142 (5th Cir. 1979) (“A merchant’s detention of persons suspected of stealing store 28 property simply is not an action exclusively associated with the state.”). 1 Second, a private individual may be liable under Section 1983 if she commits constitutional 2 violations as part of a conspiracy or joint action with a state actor. See DeGrassi v. City of Glendora, 3 207 F.3d 636, 647 (9th Cir. 2000) (“Private persons, jointly engaged with state officials in the 4 challenged action, are acting ‘under color’ of law for purposes of [Section] 1983 actions.”) (citation 5 omitted); Kirtley, 326 F.3d at 1093 (private individual acts “under color of state law” where “the 6 state has so far insinuated itself into a position of interdependence with the private entity that it must 7 be recognized as a joint participant in the challenged activity”); Franklin v. Fox, 312 F.3d 423, 441 8 (9th Cir. 2002) (private individual found liable under Section 1983 based on conspiracy with state 9 actor—i.e., entry into “an agreement or meeting of the minds” with the police to violate plaintiff’s 10 constitutional rights) (citation and internal quotation marks omitted). Joint action requires “a 11 substantial degree of cooperative action.” Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 12 1989). 13 Here, the complaint contains no allegations which plausibly suggest that Defendants Arreola 14 and Mena cooperated in any way with a state actor, much less engaged in a conspiracy with any 15 state actor to violate Plaintiff’s constitutional rights. Cf., e.g., Dietrich v. John Ascuaga’s Nugget, 16 548 F.3d 892, 899–900 (9th Cir.2008) (granting summary judgment in favor of defendant private 17 employees of event organizer who requested that the plaintiff and other petition gatherers be 18 removed from public sidewalk where the plaintiff presented no evidence that defendants “did 19 anything more than summon police”); Collins, 878 F.2d at 1154–56 (court determined under joint 20 action test that defendants private women’s health center and its employees who made citizen’s 21 arrests of antiabortion protesters did not act “under color of state law” where (1) impetus for the 22 citizen’s arrests came from the defendants, not the police; (2) “the police officer refused, after 23 conducting an independent investigation, to arrest the protesters on his own authority”; and (3) “the 24 police maintained a policy of neutrality in the dispute” between the defendants and the plaintiffs). 25 Finally, similarly, the complaint does not plausibly allege that Defendants Arreola’s and 26 Mena’s private conduct was effectively converted into government action due to governmental 27 compulsion/coercion or a nexus between them and any governmental entity. See, e.g., Kirtley, 326 28 F.3d at 1094 (“The compulsion test considers whether the coercive influence or ‘significant 1 encouragement’ of the state effectively converts a private action into a government action.”) 2 (citation omitted); Gorenc v. Salt River Project Agric. Improvement & Power Dist., 869 F.2d 503, 3 506 (9th Cir. 1989) (“The nexus test inquiry asks ‘whether there is a sufficiently close nexus between 4 the State and the challenged action of the [private] entity so the action of the latter may be fairly 5 treated as that of the state itself.’”) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 6 (1974)). 7 C. Claims Against Defendants J. Garcia, Adam Estrada, Jose Arellano, Primitiv Diaz, and Janet May 8 9 Plaintiff also fails to state a claim against Defendants J. Garcia, Adam Estrada, Jose 10 Arellano, Primitiv Diaz, and Janet May, who he alleges are all employees of the Fresno Police 11 Department. (Compl. at 3–4.) Although these individuals are named defendants in the complaint, 12 none of Plaintiff’s causes of action appears to assert any claims against any of these defendants. To 13 state a claim under Section 1983, Plaintiff must allege the deprivation of a constitutional right by a 14 person acting under color of law. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003). None 15 of Plaintiff’s causes of action allege wrongdoing by these defendants. The Court, in an abundance 16 of caution, grants leave to amend. However, Plaintiff is strongly advised to omit claims against any 17 defendant in any future complaint for which Plaintiff cannot allege a factual basis for liability. 18 D. Fourth Amendment Excessive Force Claim 19 The use of excessive force by law enforcement officers in effectuating an arrest states a valid 20 claim under Section 1983. See Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986). 21 Excessive force claims that arise in the context of an arrest or investigatory stop of a free citizen are 22 analyzed under the Fourth Amendment reasonableness standard.1 See Graham v. Connor, 490 U.S. 23 1 Plaintiff appears to attempt to allege a claim for excessive force under Eighth Amendment. (See Compl. at 8.) The 24 Eighth Amendment prohibits excessive bail, fines or cruel and unusual punishment. Such protections were designed to protect those convicted of crimes. Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979); Ingraham v. Wright, 430 U.S. 651, 25 664 (1977) (The Eighth Amendment applies “only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”). Based on Plaintiff’s allegations, there is no indication that he was 26 entitled to Eighth Amendment protections at the time of the incident. Because Plaintiff was not a convicted prisoner at the time, the Fourth Amendment rather than the Eighth Amendment protects Plaintiff from the use of excessive force. 27 See Graham v. Connor, 490 U.S. 386, 393 & n.6 (1989) (Fourth and Eighth Amendment “primary sources of constitutional protection against physically abusive governmental conduct”; where excessive force claim arises in the 28 context of effecting arrest it is properly characterized as invoking the protections of the Fourth Amendment); Reed v. 1 386, 394–95 (1989). The reasonableness inquiry in excessive force cases is an objective one, the 2 question being whether the officers’ actions are objectively reasonable in light of the facts and 3 circumstances confronting them, without regard to their underlying intent or motivation, and without 4 the “20/20 vision of hindsight.” See id. at 396–97. 5 Plaintiff’s allegations that Defendant Laird tased Plaintiff, and that Defendants Laird and 6 Santiago were “kicking and kneeing” him may be sufficient to state a cognizable claim against 7 Defendants Laird and Santiago for excessive force. However, as discussed more fully below, the 8 Court cannot determine whether this claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). 9 Plaintiff will be given an opportunity to amend his claim. 10 E. Fourth Amendment False Arrest Claim 11 A claim for false arrest can be the basis for compensatory relief under Section 1983 as a 12 Fourth Amendment violation, when the arrest is alleged to have been made without probable cause 13 or justification. Dubner v. City and County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). 14 To state a claim under Section 1983 for false arrest, however, a plaintiff must allege facts to support 15 a lack of probable cause for his arrest. See Cabrera v. City of Huntingdon Park, 159 F.3d 374, 380 16 (9th Cir. 1998) (citing George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992)). Probable 17 cause “exists when under the totality of the circumstances known to the arresting officers, a prudent 18 person would have concluded that there was a fair probability that [the person arrested] had 19 committed a crime.” Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). 20 Here, Plaintiff has failed to allege facts to support a lack of probable cause for his arrest by 21 any specified defendant. Even if Plaintiff had alleged sufficient facts to state a claim, however, 22 these claims are likely barred under Heck. 23 F. Fourth Amendment “Unlawful Prosecution” Claim 24 To prevail on a Section 1983 claim of malicious prosecution, a plaintiff “must show that the 25 defendants prosecuted [him] with malice and without probable cause, and that they did so for the 26 purpose of denying [him] equal protection or another specific constitutional right.” Awabdy v. City 27

28 during arrest are to be analyzed exclusively under the fourth amendment’s reasonableness standard rather than the due 1 of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). See also Usher v. City of L.A., 828 F.2d 556, 562 2 (9th Cir. 1987) (a malicious prosecution claim is not generally cognizable federally if the state 3 judicial system provides a remedy, but “an exception exists to the general rule when a malicious 4 prosecution is conducted with the intent to deprive a person of equal protection of the laws or is 5 otherwise intended to subject a person to a denial of constitutional rights.”). In addition, to prevail 6 on a malicious prosecution claim under Section 1983, the plaintiff must establish that the prior 7 proceedings terminated in such a manner as to indicate his innocence, and that charges were not 8 withdrawn on the basis of a compromise among the parties. Awabdy, 368 F. 3d at 1068 (emphasis 9 added). See also Sanders v. Matthew, No. 15-CV-395 LJO-EPG, 2016 WL 7210115, at *4 (E.D. 10 Cal. Dec. 12, 2016) (dismissing the plaintiff’s malicious prosecution claim where the plaintiff 11 pleaded nolo contendere to a misdemeanor charge, resulting in a felony charge being dismissed, 12 because the allegations showed that the proceedings had not “terminated in such a manner as to 13 indicate his innocence.”) 14 The filing of false reports during a criminal proceeding may be brought as a malicious 15 prosecution claim. A claim for malicious prosecution or abuse of process is not generally cognizable 16 under Section 1983 if a process is available within the state judicial system to provide a remedy. 17 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987) (citations omitted). The exception 18 is “when a malicious prosecution is conducted with the intent to deprive a person of equal protection 19 of the laws or is otherwise intended to subject a person to denial of constitutional rights.” Id. 20 (citations omitted). Malicious prosecution actions are not limited to suits against prosecutors, but 21 also may be “brought against other persons who have wrongfully caused the charges to be filed.” 22 Awabdy, 368 F.3d at 1066. (citing Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126–27 (9th 23 Cir. 2002)). See also Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007) (“[a] police 24 officer who maliciously or recklessly makes false reports to the prosecutor may be held liable for 25 damages incurred as a proximate result of those reports”). 26 As with his alleged false arrest claim, Plaintiff has failed to allege facts against any defendant 27 to support a lack of probable cause for his malicious prosecution. Moreover, to the extent Plaintiff 28 contends any defendant is liable for making false statements, he has not alleged facts to support such 1 a claim, in that he fails to plead facts sufficient to show that any defendant made any false statements 2 for the purpose of denying Plaintiff equal protection or another specific constitutional right. Even 3 if Plaintiff had alleged sufficient facts to state a claim, however, these claims are likely barred under 4 Heck. 5 G. Fourteenth Amendment 6 Without supporting facts, Plaintiff appears to allege that unspecified defendants violated his 7 rights under the Fourteenth Amendment. (See Compl. at 6.) The Due Process Clause of the 8 Fourteenth Amendment provides, “No State shall . . . deprive any person of life, liberty, or property, 9 without due process of law.” U.S. Constitution, amend. XIV § 1. This clause guarantees both 10 procedural and substantive due process. The procedural due process component protects individuals 11 against the deprivation of liberty or property by the government, while substantive due process 12 protects individuals from the arbitrary deprivation of liberty by the government. Portman v. County 13 of Santa Clara, 995 F.2d 898, 904 (9th Cir.1993); Brittain v. Hansen, 451 F.3d 982, 991 (9th 14 Cir.2006). 15 A Section 1983 claim for a violation of procedural due process has three elements: “(1) a 16 liberty or property or property interest protected by the Constitution; (2) a deprivation of the interest 17 by the government, and (3) lack of process.” Portman, 995 F.2d at 904. Here, it is not clear what 18 liberty or property interest Plaintiff believes was deprived. As a result, Plaintiff has not stated a 19 cognizable claim for a deprivation of procedural due process. 20 With respect to substantive due process, the Supreme Court has stated that “where a 21 particular Amendment ‘provides an explicit textual source of constitutional protection’ against a 22 particular sort of government behavior, ‘that Amendment, not the more generalized notion of 23 “substantive due process,” must be the guide for analyzing these claims.’” Albright, 510 U.S. at 24 274 (quoting Graham v. Connor, 490 U.S. 386, 395, (1989)). When a plaintiff asserts the right to 25 be free from arrest and prosecution without probable cause, “substantive due process, with its 26 ‘scarce and open-ended’ ‘guideposts,’ can afford him no relief.” Id. at 275 (plurality) (internal 27 citation omitted). The Ninth Circuit in Awabdy v. City of Adelanto confirmed that “[t]he principle 28 that Albright establishes is that no substantive due process right exists under the Fourteenth 1 Amendment to be free from prosecution without probable cause.” 368 F.3d 1062, 1069 (9th Cir. 2 2004) (citing Albright, 510 U.S. at 268, 271)). Thus, to the extent Plaintiff’s false arrest claim is 3 based on deprivation of his Fourteenth Amendment rights to substantive due process, it too is not 4 cognizable. See Hazlett v. Dean, No. CIV 2:12–01782 WBS DAD, 2013 WL 1749924, at *2 (E.D. 5 Cal. Apr. 23, 2013); Chaffee v. Chiu, No. C–11–05118–YGR, 2012 WL 1110012, at *6 (N.D. Cal. 6 Apr. 2, 2012) (dismissing “generalized substantive due process claims under the Fourteenth 7 Amendment” where the First and Fourth Amendments were “explicit textual sources of 8 constitutional protection in this action.) 9 H. Fifth and Sixth Amendment 10 Plaintiff appears to allege that unspecified defendants’ conduct in arresting him violated his 11 Sixth Amendment rights. Such allegations fail to state a viable claim predicated upon the Sixth 12 Amendment. Here, because plaintiff essentially alleges that defendants falsely arrested him, such 13 claims arise and are more properly analyzed under the Fourth and Fourteenth Amendments, 14 respectively—not the Fifth or Sixth Amendments. See, e.g., Braden v. Los Angeles Police Dep’t, 15 Case No. CV 16–7633 JVS(JC), 2017 WL 78467, at *5 (C.D. Cal. Jan. 9, 2017) (dismissing false 16 arrest and excessive force claims predicated on the Fifth and Sixth Amendments) (citing Albright, 17 510 U.S. at 273). Indeed, the complaint does not allege any facts that would plausibly support a 18 viable Sixth Amendment claim against any defendant. 19

I. Heck Bar

20 While the record does not contain enough information for the Court to make a conclusive 21 determination, it is likely that Plaintiff’s Section 1983 claims are barred by Heck. When a prisoner 22 challenges the legality or duration of his custody or raises a constitutional challenge which could 23 entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. 24 Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 25 S.Ct. 1090 (1991). To recover damages under Section 1983 for allegedly unconstitutional 26 conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render 27 a conviction or sentence invalid, a plaintiff must prove that the conviction or sentence has been 28 1 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 2 authorized to make such determination, or called into question by a federal court’s issuance of a writ 3 of habeas corpus. Heck, 512 U.S. at 486–87. A claim for damages challenging a conviction or 4 sentence that has not been so invalidated is not cognizable under Section 1983. Id. at 487. When a 5 prisoner seeks damages in a Section 1983 suit, the district court must therefore consider whether a 6 judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or 7 sentence. If it would, the complaint must be dismissed unless the plaintiff can demonstrate that the 8 conviction or sentence has already been invalidated. Id. 9 Heck generally bars claims challenging the validity of an arrest, prosecution or conviction. 10 See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (Heck barred plaintiff’s 11 false arrest and imprisonment claims until conviction was invalidated); Smithart v. Towery, 79 F.3d 12 951, 952 (9th Cir. 1996) (Heck barred plaintiff’s claims that defendants lacked probable cause to 13 arrest him and brought unfounded criminal charges against him). It also bars claims which 14 “necessarily imply” the invalidity of a conviction. See, e.g., Valdez v. Rosenbaum, 302 F.3d 1039, 15 1049 (9th Cir.2002) (prisoner’s Sixth Amendment claim of denial of access to counsel while a 16 pretrial detainee barred by Heck because claim would necessarily imply invalidity of subsequent 17 conviction). 18 A claim for use of excessive force during the course of an arrest may not necessarily imply 19 the invalidity of the arrest or conviction and therefore may not be barred by Heck. See Cabrera, 20 159 F.3d at 380; Smithart, 79 F.3d at 952–53; compare Sanford v. Motts, 258 F.3d 1117, 1120 (9th 21 Cir. 2001) (when a civil rights complaint, brought by a person convicted of resisting arrest, alleges 22 facts indicating that the officer used excessive force after the arrest, the complaint is not barred by 23 Heck), with Cunningham v. Gates, 312 F.3d 1148, 1153–55 (9th Cir. 2003) (where the plaintiff was 24 convicted of felony murder for provoking police gunfire that killed his associate, plaintiff’s claim 25 that the police either started firing first or deliberately created a dangerous situation that provoked 26 the plaintiff into firing necessarily implied the invalidity of the conviction). 27 Based on Plaintiff’s current address at the Fresno County Jail, it appears Plaintiff is currently 28 in custody following conviction for a crime. Plaintiff’s claims therefore may be barred by Heck. 1 However, the Court cannot determine from the current allegations whether the claims are Heck- 2 barred. In other words, the Court cannot determine whether or not Plaintiff was convicted for a 3 crime arising out of the same facts alleged in this action. Accordingly, an opportunity to amend will 4 be granted. Any such amendment must include not only the factual grounds for Plaintiff’s claims, 5 but also whether Plaintiff was convicted for a crime related to the events in this action and, if so, 6 whether any such conviction has been overturned or invalidated. 7 J. Municipal Liability (Monell) Claim 8 Plaintiff names as a defendant “Police Chief John Doe,” chief of the Fresno Police 9 Department. (Compl. at 3.) Plaintiff’s complaint contains no allegations against this defendant. To 10 the extent that Plaintiff intends to bring a claim against the Chief of Fresno Police in his official 11 capacity, the Court shall treat it as a claim against the City of Fresno. See Contreras, ex rel. 12 Contreras v. Cty. of Glenn, 725 F. Supp. 2d 1157, 1159–60 (E.D. Cal. 2010) (Section 1983 claims 13 against government officials in their official capacity “are really suits against the government 14 employer because the employer must pay any damages awarded. In such, the real party in interest 15 is the entity for which the official works.”) (citation omitted). See Kentucky v. Graham, 473 U.S. 16 159, 166 (1985) (“An official-capacity suit is, in all respects other than name, to be treated as a suit 17 against the entity. It is not a suit against the official personally, for the real party in interest is the 18 entity.”). 19 Local governments, such as the City of Fresno, are “persons” subject to liability under 20 Section 1983 where official policy or custom causes a constitutional tort. See Monell v. Dep’t of 21 Social Servs., 436 U.S. 658, 690 (1978). To impose municipal liability under Section 1983 for a 22 violation of constitutional rights, a plaintiff must show: “(1) that [the plaintiff] possessed a 23 constitutional right of which [he] was deprived; (2) that the municipality had a policy; (3) that this 24 policy amounts to deliberate indifference to the plaintiff’s constitutional right; and (4) that the policy 25 is the moving force behind the constitutional violation.” See Plumeau v. School Dist. #40 Cty. of 26 Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (citations and internal quotation marks omitted). 27 “A local government entity cannot be held liable under [Section] 1983 unless the plaintiff 28 1 alleges that the action inflicting injury flowed from either an explicitly adopted or a tacitly 2 authorized [governmental] policy.” Ortez v. Washington Cty., State of Or., 88 F.3d 804, 811 (9th 3 Cir. 1996) (citation and quotations omitted) (alteration in original). “[L]ocal governments, like any 4 other [Section] 1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant to 5 governmental ‘custom’ even though such a custom has not received formal approval through the 6 body’s official decisionmaking channels.” Monell, 436 U.S. at 690–91. A conclusory allegation 7 regarding the existence of a policy or custom unsupported by factual allegations is insufficient to 8 state a Monell claim.2 See Save CCSF Coalition v. Lim, No. 14–cv–05286–SI, 2015 WL 3409260, 9 at *13 (N.D. Cal. May 27, 2015) (unspecific allegation regarding municipal defendant’s use of force 10 policy insufficient to identify a relevant policy or custom under Monell); Telles v. City of Waterford, 11 No. 1:10–cv–00982–AWI–SKO, 2010 WL 5314360, at *4 (E.D. Cal. Dec. 20, 2010) (to sufficiently 12 state a claim under Monell, a plaintiff must allege facts establishing a policy or establishing a lack 13 of training; it is not enough simply to state that there is a policy or allege a lack of training or 14 supervision); Jenkins v. Humboldt Cty., H.C.C.F., No. C 09-5899 PJH, 2010 WL 1267113, at *3 15 (N.D. Cal. Mar. 29, 2010) (same); Smith v. Cty. of Stanislaus, No. 1:11–cv–01655–LJO–SKO, 2012 16 WL 253241, at *3 (E.D. Cal. Jan. 26, 2012) (same). 17 A local governmental entity may also “be liable if it had a policy or custom of failing to train 18 its employees and that failure to train caused the constitutional violation.” Collins v. City of Harker 19 Heights, Tex., 503 U.S. 115, 123 (1992). “In particular . . . the inadequate training of police officers 20 could be characterized as the cause of the constitutional tort if—and only if—the failure to train 21 amounted to ‘deliberate indifference’ to the rights of persons with whom the police come into 22 contact.” Id. (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). “A municipality’s 23 culpability for deprivation of rights is at its most tenuous where the claim turns on a failure to train.” 24 Connick v. Thompson, 563 U.S. 51, 61 (2011). To state a cognizable claim, a plaintiff must allege 25 specific facts supporting the conclusion that the municipal entity had actual or constructive notice 26 that their training program (or lack thereof) resulted in their employees’ violating citizens’ federal 27 2 The Court’s prior screening order advised Plaintiff that, in re-pleading his municipal liability claim against Defendant 28 City of Tulare, he “be careful to allege the specific policy, custom or practices that he contends give rise to liability.” 1 constitutional rights and that the municipality made a deliberate choice to train (or not to train) its 2 employees as a deliberate decision drawn from its consideration of various alternatives. 3 Plaintiff’s complaint alleges that Section 1983 liability exists because because of customs, 4 practices, and policies of “allowing police officers to cover up excessive use of force” and “allowing 5 an ongoing pattern of deliberate indifference” to the rights to be free from excessive force and 6 unreasonable seizures. (Compl. at 7.) The allegation of a cognizable claim “requires more than 7 labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 8 550 U.S. at 555–56. No factual allegations in Plaintiff’s complaint support the conclusory 9 allegations that the City of Fresno had unconstitutional customs, practices, or policies. A conclusory 10 allegation regarding the existence of a policy or custom unsupported by factual allegations is 11 insufficient to state a Monell claim. See Save CCSF Coalition v. Lim, No. 14–cv–05286–SI, 2015 12 WL 3409260, at *13 (N.D. Cal. May 27, 2015) (unspecific allegation regarding municipal 13 defendant’s use of force policy insufficient to identify a relevant policy or custom under Monell); 14 Telles v. City of Waterford, No. 1:10–cv–00982–AWI–SKO, 2010 WL 5314360, at *4 (E.D. Cal. 15 Dec. 20, 2010) (to sufficiently state a claim under Monell, a plaintiff must allege facts establishing 16 a policy or establishing a lack of training; it is not enough simply to state that there is a policy or 17 allege a lack of training or supervision); Jenkins v. Humboldt Cty., H.C.C.F., No. C 09-5899 PJH, 18 2010 WL 1267113, at *3 (N.D. Cal. Mar. 29, 2010) (same); Smith v. Cty. of Stanislaus, No. 1:11– 19 cv–01655–LJO–SKO, 2012 WL 253241, at *3 (E.D. Cal. Jan. 26, 2012) (same). Plaintiff has not 20 alleged any facts explaining, for example, how the City of Fresno’s policy or custom was deficient, 21 how it caused the alleged harm, and how the infirmity of the custom or policy was so obvious that 22 policymakers were on notice that the constitutional injury was likely to occur. See Flores v. Cty. of 23 Los Angeles, 758 F.3d 1154, 1157 n.8 (9th Cir. 2014); Starr, 652 F.3d at 1207–08, 1216–17. 24 Nor has Plaintiff stated a cognizable claim against the City of Fresno for failure to train its 25 police officers. The complaint alleges nothing more than a completely unsupported legal conclusion 26 that “Defendants” “failed to provide criteria for the use of excessive and unnecessary force.” 27 (Compl. at 7.) The complaint also fails to allege sufficient facts to support a finding that the City of 28 Fresno was deliberately indifferent because it does not allege any prior similar incidents. See 1 Connick, 563 U.S. at 63–64. Leave to amend is granted so that Plaintiff may attempt to allege a 2 Monell claim against the City of Fresno that is not barred by Heck, above. Plaintiff must be careful 3 to allege the specific policy, custom or practices that he contends give rise to liability. 4 K. State Law Claims 5 Plaintiff attempts to state a number of state law claims, addressed in turn below. Although 6 none are cognizable as currently pled, leave to amend will be granted so Plaintiff may attempt to 7 cure the deficiencies. 8 1. California Constitutional Claims 9 Plaintiff seeks damages for violations of Article 1, Sections 1 (right to privacy) and 7 (due 10 process clause) of the California Constitution. Initially, Plaintiff is not entitled to damages for a 11 violation of the due process clause of the state constitution. Carlsbad Aquafarm, Inc. v. State Dep’t 12 of Health Servs., 83 Cal.App.4th 809, 823 (Ct. App. 2000) (due process); see also Brown v. County 13 of Kern, No. 1:06–cv–00121–OWW–TAG, 2008 WL 544565, *17 (E.D. Cal. Feb. 26, 2008) 14 (plaintiff may not seek damages directly under Article 1, Sections 7 of the California Constitution). 15 Article I, section 1 of the California Constitution does permit a private right of action to 16 enforce the right of privacy. See, e.g., In re Qawi, 32 Cal.4th 1, 14 (2004) (considering a claim for 17 violation of the right to privacy under the California Constitution). It is unclear, however, what 18 claim Plaintiff is attempting to articulate under Article I and against which defendant. In order to 19 state a claim, Plaintiff will need to articulate what his specific claim is under Article I, section 1 of 20 the California Constitution, and specify which defendant(s) is allegedly liable for that claim. 21 2. Causes of Action Under the California Civil Code 22 a. California Tort Claims Act (“CTCA”) and Immunity 23 As a preliminary matter, Plaintiff is advised that the CTCA requires that a tort claim against 24 a public entity or its employees be presented to the California Victim Compensation and 25 Government Claims Board, formerly known as the State Board of Control, no more than six months 26 after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950 950.2. 27 Presentation of a written claim, and action on or rejection of the claim are conditions precedent to 28 suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (2004); Mangold v. 1 California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). In other words, to state a tort 2 claim against a public entity or public employee, a plaintiff must allege compliance with the Tort 3 Claims Act. State v. Superior Court of Kings County, 32 Cal.4th at 1245; Mangold, 67 F.3d at 1477; 4 Karim Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Cf. Williams v. City 5 of Antioch, No. C 08-02301 SBA, 2010 WL 3632199, at *5 (N.D. Cal. Sept. 2, 2010) (finding that 6 Plaintiff’s Bane Act claim was subject to the claim presentation requirement of the Government 7 Tort Claims Act). Plaintiff is advised that failure to plead compliance with the CTCA for the state 8 law tort claims in any amended complaint may result in dismissal of those causes of actions. 9 Many of the named Defendants may also be immune from suit for the state law claims under 10 California Government Code § 821.6, which provides “a public employee is not liable for injury 11 caused by his instituting or prosecuting any judicial or administrative proceeding within the scope 12 of his employment, even if he acts maliciously and without probable cause.” Nevertheless, the 13 Court will provide Plaintiff with standards for his state law claims in an abundance of caution. 14 However, Plaintiff is again advised that he should only allege these causes of action if he believes 15 in good faith that he can assert a cognizable claim. 16 b. California Civil Code §§ 43 and 52.1 17 Plaintiff refers to California Civil Codes sections 43 and 52.1 in his complaint.3 (See Compl. 18 at 6.) Section 43 sets forth a statement of general personal rights and creates a statutory rubric from 19 which personal tort actions spring. To establish a claim of assault and battery, a plaintiff must 20 establish that (1) the defendant touched the plaintiff, intending to harm him, (2) the plaintiff did not 21 consent to be touched, (3) the plaintiff was injured by the defendant’s touch, and (4) the officer used 22 excessive force. Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1051–52 (N.D. Cal. 2006). 23 Allegations that Defendant Laird tased Plaintiff, and that Defendants Laird and Santiago were 24 “kicking and kneeing” him, could potentially constitute the tort of battery or be determined to have 25 caused “bodily harm” under Civil Code § 43. It is unclear, however, whether Plaintiff attempts to 26 state such a claim against any of the other named defendants, as he has not linked any specific 27 3 Plaintiff also cites California Civil Code section 51, also known as the Unruh Civil Rights Act, which applies only to 28 “business establishments.” Cal. Civ. Code § 51. Nothing in the complaint suggests that any of the named defendants 1 allegations to any other defendants. 2 Section 52.1 (“the Bane Act”) establishes a private right of action for an “individual whose 3 exercise of enjoyment of rights secured by the Constitution or laws of the United States, or of rights 4 secured by the Constitution or laws of [California], has been interfered with by “threats, 5 intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion.” Cal. Civ. 6 Code § 52.1(a).; Austin B. v. Escondido Union School District, 149 Cal. App. 4th 860, 881 (2007). 7 The act requires “an attempted or completed act of interference with a legal right, accompanied by 8 a form of coercion.” Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998). Thus, to state a claim 9 under the Bane Act, Plaintiff must establish: (1) Defendants interfered with Plaintiffs’ constitutional 10 or statutory rights; and (2) that interference was accompanied by actual or attempted threats, 11 intimidation, or coercion. See Venegas v. County of Los Angeles, 32 Cal 4th 820, 842-843 (2004). 12 Plaintiff’s complaint fails to state a Bane Act claim because it contains no specific factual allegations 13 that any specified defendant had engaged in any threats, intimidation or coercion in their actions as 14 during the subject incident. 15 3. Jurisdiction of State Law Claims 16 Finally, Plaintiff is advised that federal courts can only adjudicate civil cases authorized by 17 the United States Constitution and Congress. Generally, this includes cases in which: 1) diversity 18 of citizenship is established (the matter in controversy exceeds $75,000 and is between citizens of 19 different states), 2) a federal question is presented, or 3) the United States is a party. See 28 U.S.C. 20 §§ 1331 and 1332; see also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 21 If Plaintiff is unable to state a cognizable federal claim, such as a Section 1983 claim, the 22 only way Plaintiff would be able to bring a civil state law claim in federal court is to establish 23 complete diversity of citizenship, which would require that the parties are citizens of different states. 24 See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005). Here, Plaintiff and all 25 Defendants are citizens of California. Therefore, diversity of citizenship cannot be established and 26 this Court cannot adjudicate his state law claims unless Plaintiff states a cognizable federal claim. 27 III. CONCLUSION AND ORDER 28 At this juncture, the Court cannot determine whether Plaintiff’s complaint states a 1 cognizable federal claim and, even if so, whether such claim is barred by Heck. As noted above, 2 the Court will provide Plaintiff with an opportunity to amend his claims and cure, to the extent 3 possible, the identified deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff 4 may not change the nature of this suit by adding new, unrelated claims in his amended complaint. 5 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 6 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 7 the named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 8 U.S. at 678–79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 9 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 10 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. Lacey v. 11 Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s amended 12 complaint must be “complete in itself without reference to the prior or superseded pleading.” Rule 13 220, Local Rules of the United States District Court, Eastern District of California. 14 Based on the foregoing, it is HEREBY ORDERED that: 15 1. Plaintiff is granted leave to file a first amended complaint; 16 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and 17 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must file 18 a first amended complaint curing the deficiencies identified by the Court in this order, 19 or a notice of voluntary dismissal. 20 If Plaintiff fails to file an amended complaint in compliance with this order, the undersigned 21 will recommend to the assigned district judge that this action be dismissed for failure to state 22 a claim and to obey a court order. 23

IT IS SO ORDERED.

24

Sheila K. Oberto 25 Dated: December 11, 2019 /s/ .

UNITED STATES MAGISTRATE JUDGE

26

27 28