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6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRENT LEE HARDING, Case No. 2:21-cv-02239-DJC-JDP (PS) 12 Plaintiff, FINDING AND RECOMMENDATIONS

THAT PLAINTIFF’S AMENDED

13 v. COMPLAINT BE DISMISSED WITHOUT

LEAVE TO AMEND

14 AARON DE CANIO, et al., ECF No. 7 15 Defendants.

OBJECTIONS DUE WITHIN FOURTEEN

16 DAYS 17 18 Plaintiff Brent Lee Harding is a state inmate proceeding pro se and in forma pauperis. 19 The amended complaint alleges that Rancho Cordova Detective Aaron De Canio violated 20 plaintiff’s right to due process by executing an untimely state search warrant outside of De 21 Canio’s jurisdiction. The allegations do not give rise to a federal claim. I will therefore 22 recommend dismissal of this action. 23 Screening and Pleading Requirements 24 Plaintiff’s complaint is subject to screening under 28 U.S.C. § 1915(e). That statute 25 requires the court to dismiss any action filed by a plaintiff proceeding in forma pauperis that is 26 frivolous or malicious, that fails to state a claim upon which relief may be granted, or that seeks 27 monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915(e)(2)(B). 28 1 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 2 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 3 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 4 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 6 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 7 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 8 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 9 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 10 n.2 (9th Cir. 2006) (en banc) (citations omitted). 11 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 12 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 13 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 14 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 15 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 16 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 17 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 18 Analysis 19 The complaint alleges that, in March 2021, police stopped plaintiff in his vehicle and 20 arrested him for a crime that allegedly occurred in January 2021. ECF No. 7 at 1. A search of 21 plaintiff’s vehicle resulted in the discovery of two stolen items. Id. After his arrest, plaintiff’s 22 vehicle was released to his acquaintance. Id. The following week, defendant Detective De Canio 23 obtained a search warrant from a California court to search the vehicle again; the vehicle was at 24 the time in the acquaintance’s possession. Id. at 2. The warrant was obtained in Sacramento 25 County, which, according to the complaint, is outside of De Canio’s jurisdiction; plaintiff alleges 26 that De Canio did not notify local enforcement that he would be executing the warrant in that 27 jurisdiction. Id. at 2-3. The complaint states that the search warrant’s probable cause was “non- 28 existent” and “unreasonable” because the vehicle had not been in plaintiff’s possession for more 1 than a week at the time of the second search. Id. at 3. The complaint alleges violation of 2 plaintiff’s due process rights. Id. 3 As explained in my prior screening order, a delay in executing a search warrant may raise 4 a constitutional issue when the probable cause upon which the warrant was issued has ceased to 5 exist. United States v. Grubbs, 547 U.S. 90, n.2 (2006); United States v. Gann, 732 F.2d 714, 722 6 (9th Cir. 1984) (“The test for judging the timeliness of a search warrant is whether there is 7 sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to 8 be seized are still on the premises.”). However, plaintiff’s vague and conclusory statement that 9 probable cause was non-existent and unreasonable does not support a constitutional claim. See 10 Tanaka v. Kaaukai, No. CV 20-00205 SOM-RT, 2020 WL 5097829, at *5 (D. Haw. Aug. 28, 11 2020) (holding that the plaintiff “cannot proceed based only on her bald, unadorned conclusory 12 allegation that the warrants were unsupported by probable cause”). Indeed, the complaint 13 concedes that stolen property was found in the vehicle during plaintiff’s arrest. 14 Plaintiff’s claim that De Canio executed the warrant outside his jurisdiction and without 15 notifying local law enforcement is meritless. See People v. P.P.G., Inc., 88 Cal. App. 3d Supp. 16 12, 18 (App. Dep’t Super Ct. 1978) (finding that an officer who had valid authority to execute a 17 search warrant could do so without obtaining consent from chief of police, or a person authorized 18 by him, in city outside of judicial district where warrant had been issued). Further, any alleged 19 failure by De Canio to comply with California law’s notice requirement does not give rise to a 20 claim under § 1983. See Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (“To the extent that the 21 violation of a state law amounts to the deprivation of a state-created interest that reaches beyond 22 that guaranteed by the federal Constitution, Section 1983 offers no redress.”); Langford v. Day, 23 110 F.3d 1380, 1389 (9th Cir 1996) (holding that a plaintiff cannot “transform a state-law issue 24 into a federal one merely by asserting a violation of due process”). 25 Finally, the amended complaint indicates that criminal charges were filed against plaintiff, 26 and that he expects those proceedings to be “finalized very soon.” ECF No. 7 at 3. To the extent 27 that plaintiff asserts claims about the validity of the search warrant, those claims are barred by the 28 abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). As previously explained 1 | to plaintiff, that doctrine generally prohibits federal courts from interfering with ongoing, state- 2 | court criminal proceedings. Given that nothing short of changing the fundamentals of the 3 | allegations could result in a viable complaint, I recommend the dismissal be without leave to 4 | amend. Silva vy. Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se 5 | complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of 6 | the complaint could not be cured by amendment.”) (internal quotation marks omitted). 7 Accordingly, it is hereby RECOMMENDED that plaintiffs first amended complaint, ECF 8 | No. 7, be dismissed without leave to amend for failure to state a claim. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 | objections shall be served and filed within fourteen days after service of the objections. The 15 | parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 17 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 ( q oy — Dated: _ December 6, 2023 21 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

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