1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY GETTINGS, No. 2:21-cv-1139 JAM DB PS 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SHASTA, et al., 15 Defendants. 16 17 Plaintiff Jimmy Gettings is proceeding in this action pro se. This matter was referred to 18 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending 19 before the court are plaintiff’s complaint, motion to proceed in forma pauperis pursuant to 28 20 U.S.C. § 1915, and motion to expedite. (ECF Nos. 1-3.) The complaint concerns allegations 21 related to plaintiff’s arrest and prosecution by the defendants in the summer of 2019. 22 The court is required to screen complaints brought by parties proceeding in forma 23 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 24 2000) (en banc). 25 I. Plaintiff’s Application to Proceed In Forma Pauperis 26 Plaintiff’s in forma pauperis application makes the financial showing required by 28 27 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 28 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 1 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 2 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 3 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 4 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 5 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 6 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 7 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 8 District Court to examine any application for leave to proceed in forma pauperis to determine 9 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 10 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 11 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 12 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 13 state a claim on which relief may be granted, or seeks monetary relief against an immune 14 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 15 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 16 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 17 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 18 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 19 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 20 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 21 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 22 true the material allegations in the complaint and construes the allegations in the light most 23 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 24 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 25 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 26 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 27 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 28 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 1 The minimum requirements for a civil complaint in federal court are as follows: 2 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 3 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for 4 judgment for the relief the pleader seeks. 5 Fed. R. Civ. P. 8(a). 6 II. Plaintiff’s Complaint 7 The complaint alleges that on July 13, 2019, plaintiff was stopped by defendant Ryan 8 Kacalek, a Shasta County Sheriffs Deputy. (Compl. (ECF No. 1) at 2.) While stopped, defendant 9 Shasta County Animal Control Officer Molly Roberts arrived on scene and cited plaintiff for 10 unlawfully selling animals on a public right of way. (Id.) 11 On July 20, 2019, plaintiff was again stopped by defendant Kacalek. (Id.) Defendant 12 Roberts again arrived on scene. (Id.) This time Roberts “entered plaintiff’s enclosed rear 13 compartment of his” vehicle, removed “approximately 59 baby-chicks” and transported them to 14 the Shasta County Animal Shelter. Defendant Kacalek placed plaintiff under arrest and placed 15 “cuffs severely tight on plaintiff[.]” (Id.) 16 After arranging for the towing of plaintiff’s vehicle and traveling some distance defendant 17 Kacalek “told plaintiff that he was not going to jail” but instead was to be cited and released. (Id. 18 at 2-3.) Defendant Kacalek drove plaintiff to a “gas station at I-5 and Gas Point Road in 19 Cottonwood, CA.” (Id. at 3.) 20 Plaintiff “was found not guilty” of unlawfully selling animals and not guilty of driving on 21 a suspended registration. (Id.) Defendant Kacalek gave “false testimony in this court 22 proceeding” by testifying that plaintiff’s registration was suspended despite knowing this to be a 23 false statement. (Id.) 24 Pursuant to these allegations, the complaint attempts to assert twenty causes of action. 25 (Id.) With respect to some of the causes of action it is difficult to decipher exactly what cause of 26 action is asserted against what defendant. For example, “COUNT ONE” alleges defendant 27 Kacalek and Roberts wrongfully stopped plaintiff, but also that the “DEFENDANTS” engaged in 28 the “INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.” (Id.) 1 Nonetheless, the complaint does state cognizable claims against defendants Kacalek and 2 Roberts for unlawful search and seizure, false arrest, assault and battery1, and malicious 3 prosecution. See generally Avina v. U.S., 681 F.3d 1127, 1130-31 (9th Cir. 2012) (“To prevail 4 on a claim of battery under California law, a plaintiff must establish that: (1) the defendant 5 touched the plaintiff or caused the plaintiff to be touched with the intent to harm or offend the 6 plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended 7 by defendant’s conduct; and (4) a reasonable person in plaintiff's situation would have been 8 offended by the touching.”); Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001) 9 (“an arrest without probable cause violates the Fourth Amendment and gives rise to a claim for 10 damages under § 1983”); Sullivan v. County of Los Angeles, 12 Cal.3d 710, 720 (Cal. 1974) 11 (“Malicious prosecution consists of initiating or procuring the arrest and prosecution of another 12 under lawful process, but from malicious motives and without probable cause . . . . The test is 13 whether the defendant was actively instrumental in causing the prosecution.”). 14 The complaint, however, also attempts to assert claims pursuant to 18 U.S.C. § 241. 15 (Compl. (ECF No. 1) at 4.) That statute, however, is a criminal statute that does not provide for a 16 civil cause of action. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). 17 The complaint also attempts to asserts several causes of action against the County of Shasta and 18 the Shasta County Sheriff based on their status as the employer of defendants Kacalek and 19 Roberts, who the complaint alleges violated plaintiff’s rights under the constitution. 20 However, “[i]n Monell v. Department of Social Services, 436 U.S. 658 (1978), the 21 Supreme Court held that a municipality may not be held liable for a § 1983 violation under a 22 theory of respondeat superior for the actions of its subordinates.” Castro v. County of Los 23 Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In this regard, “[a] government entity may not be 24 held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown 25 to be a moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 26 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). 27

28 1 The complaint does not appear to attempt to assert a claim for the excessive use of force. 1 In order to allege a viable Monell claim against Shasta County plaintiff “must demonstrate 2 that an ‘official policy, custom, or pattern’ on the part of [the defendant] was ‘the actionable 3 cause of the claimed injury.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) 4 (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008)). There are three 5 ways a “policy” can be established. See Clouthier, 591 F.3d at 1249-50. 6 “First, a local government may be held liable ‘when implementation of its official policies 7 or established customs inflicts the constitutional injury.’” Id. at 1249 (quoting Monell, 436 U.S. 8 at 708 (Powell, J. concurring)). Second, plaintiff may allege that the local government is liable 9 for a policy of inaction or omission, for example when a public entity, “fail[s] to implement 10 procedural safeguards to prevent constitutional violations” or fails to adequately train its 11 employees. Tsao, 698 F.3d at 1143 (citing Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 12 1992)); see also Clouthier, 591 F.3d at 1249 (failure to train claim requires plaintiff show that 13 “the need for more or different training [was] so obvious, and the inadequacy so likely to result in 14 the violation of constitutional rights, that the policymakers . . . can reasonably be said to have 15 been deliberately indifferent to the need.”) (quoting City of Canton v. Harris, 489 U.S. 378, 390 16 (1989)); Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (“To impose 17 liability against a county for its failure to act, a plaintiff must show: (1) that a county employee 18 violated the plaintiff’s constitutional rights; (2) that the county has customs or policies that 19 amount to deliberate indifference; and (3) that these customs or policies were the moving force 20 behind the employee’s violation of constitutional rights.”). “Third, a local government may be 21 held liable under § 1983 when ‘the individual who committed the constitutional tort was an 22 official with final policy-making authority’ or such an official ‘ratified a subordinate’s 23 unconstitutional decision or action and the basis for it.’” Clouthier, 591 F.3d at 1250 (quoting 24 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). 25 However, a complaint alleging a Monell violation “‘may not simply recite the elements of 26 a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and 27 to enable the opposing party to defend itself effectively.’” AE ex rel. Hernandez v. Cty. of 28 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 1 2011)). At a minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] 2 how the policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, 3 and reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of 4 Visalia, 687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 5 957 (S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the 6 specific content of the municipal entity’s alleged policy or custom.”). 7 Here, the complaint fails to allege the necessary factual allegations to state a Monell 8 violation. Finally, the complaint also attempts to assert a claim for violation of 34 U.S.C. § 9 12601, against Shasta County Sheriff Eric Magrini. (Compl. (ECF No. 1) at 7.) § 12601 10 authorizes the Attorney General to bring a civil enforcement action based on the deprivation of 11 rights, privileges, or immunities protected by the Constitution. “There is no private right of 12 action to enforce this section.” Gumber v. Fagundes, Case No. 21-cv-3155 JCS, 2021 WL 13 4311904, at *5 (N.D. Cal. July 3, 2021). 14 CONCLUSION 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiff may proceed now on the complaint’s claims of unlawful search and seizure, 17 false arrest, assault and battery, and malicious prosecution against defendants Ryan Kacalek and 18 Molly Roberts as set forth below, and pursue only those claims against those defendants. 19 Alternatively, plaintiff may forgo serving defendants Kacalek and Roberts and attempt to amend 20 the complaint. 21 2. If plaintiff elects to amend the amended complaint to address the issues noted 22 above, plaintiff has twenty-eight days so to do, and shall skip the following service instructions 23 (Nos. 4-10). Plaintiff is not obligated to amend the complaint. However, if plaintiff does so, the 24 amended complaint will also be subject to screening.2

25 2 Plaintiff is reminded that the court cannot refer to a prior pleading in order to make an amended 26 complaint complete. Local Rule 220 requires that any amended complaint be complete in itself without reference to prior pleadings. The amended complaint will supersede the original 27 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 28 and identified in the body of the complaint, and each claim and the involvement of each 1 3. If plaintiff elects to proceed against defendant Ryan Kacalek and defendant Molly 2 Roberts, then within twenty-eight days, plaintiff must return the materials for service of process 3 that are enclosed with this order, as described below. In this event the court will construe 4 plaintiff’s election as consent to the dismissal of all other defendants and all other claims without 5 prejudice. 6 4. Service is appropriate for defendant Ryan Kacalek and defendant Molly Roberts. 7 5. The Clerk of the Court is directed to issue forthwith, and the U.S. Marshal is directed 8 to serve within ninety days of the date of this order, all process pursuant to Federal Rule of Civil 9 Procedure 4, without prepayment of costs. 10 6. The Clerk of the Court shall send plaintiff, for each defendant in paragraph number 4, 11 above: one USM-285, one summons, a copy of the complaint, and an appropriate form for 12 consent to trial by a magistrate judge. 13 7. Plaintiff is directed to supply the U.S. Marshal, within 28 days from the date this order 14 is filed, all information needed by the Marshal to effect service of process, and shall file a 15 statement with the court that said documents have been submitted to the United States Marshal. 16 The court anticipates that, to effect service, the U.S. Marshal will require, for each defendant in 17 paragraph number 4, above, at least: 18 a. One completed summons; 19 b. One completed USM-285 form; 20 c. One copy of the endorsed filed complaint, with an extra copy for the U.S. 21 Marshal; and 22 d. One copy of the instant order. 23 8. In the event the U.S. Marshal is unable, for any reason whatsoever, to effect service 24 within 90 days from the date of this order, the Marshal is directed to report that fact, and the 25 reasons for it, to the undersigned. 26 27 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file must also include concise but complete factual allegations describing the conduct and events 28 which underlie plaintiff’s claims. 1 9. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal, 2 | 501 “TI” Street, Sacramento, Ca., 95814, Tel. No. (916) 930-2030. 3 10. Plaintiff is cautioned that the failure to comply with this order may result in a 4 | recommendation that this action be dismissed. 5 11. Plaintiff's June 28, 2021 motion to proceed in forma pauperis (ECF No. 2) is granted. 6 12. Plaintiff’s October 12, 2021 request to expedite (ECF No. 3) is denied as having been 7 || rendered moot. 8 || Dated: December 14, 2021 9 10 ll ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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