1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABRAHAM G. PINZON, Case No. 23-cv-01571-AMO

8 Plaintiff,

ORDER OF DISMISSAL WITH LEAVE

9 v. TO AMEND

10 MENDOCINO COUNTY SHERIFF'S Re: Dkt. Nos. 1, 5, 7 OFFICE, et al., 11 Defendants.

12 13 I. INTRODUCTION 14 Plaintiff Abraham G. Pinzon filed a pro se civil rights action in which he alleged violations 15 of his rights under Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act of 16 1964, as well as additional causes of action that arise under 42 U.S.C. § 1983. ECF No. 1 17 (“Compl.”). Venue is proper because the events giving rise to the claim are alleged to have 18 occurred in Mendocino County, which is located in this judicial district. See 28 U.S.C. § 1391(b). 19 Pinzon names the following defendants: Mendocino County Sherriff’s Office and the California 20 Highway Patrol (“Defendants”). Pinzon also seeks appointment of counsel. ECF No. 5. The 21 Court now reviews the sufficiency of Pinzon’s complaint to determine whether it satisfies 28 22 U.S.C. § 1915(e)(2)(B). Because the complaint does not state any cognizable claims, the 23 complaint is DISMISSED with leave to file an amended complaint no later than 60 days from the 24 date of this Order. 25 II. ALLEGATIONS OF THE COMPLAINT 26 Pinzon brings this action against Defendants in connection with his arrest on an 27 unspecified date. Pinzon alleges that Defendants violated various of his constitutional rights, 1 disability under Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act of 1964, 2 Compl. at 6; 2) Defendants “falsif[ied] an arrest warrant” and maliciously prosecuted Pinzon, id. 3 at 8; 3) Defendants used excessive force in arresting Pinzon, pushing him to the ground and 4 causing an abrasion, id. at 7; and 4) Defendants placed Pinzon in a different jail cell because of his 5 race, id. Pinzon alleges that Defendants’ actions caused him to suffer $365,000 in emotional and 6 financial damages. Id. at 9. 7 III. DISCUSSION 8 A. STANDARD OF REVIEW 9 Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1), a federal court must 10 conduct a preliminary screening and dismiss any claims which: (1) are frivolous or malicious; (2) 11 fail to state a claim upon which relief may be granted; or (3) seek monetary relief from a defendant 12 who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 13 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 14 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 15 necessary; the statement need only give the defendant fair notice of what the … claim is and the 16 grounds upon which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations 17 omitted). While detailed factual allegations are not required, a plaintiff must provide more than a 18 “formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 19 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a claim 20 to relief that is plausible on its face.” Id. at 570. To state a claim that is plausible on its face, a 21 plaintiff must allege facts that “allow[ ] the court to draw the reasonable inference that the 22 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 23 “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is 24 inapplicable to legal conclusions [and] . . . mere conclusory statements. Id. (citing Twombly, 550 25 U.S. at 555). Courts “do not necessarily assume the truth of legal conclusions merely because 26 they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th 27 Cir. 2009). 1 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 2 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 3 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 4 amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds 5 by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, 6 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 7 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 8 litigant uses the opportunity to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 9 2012) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 10 B. ANALYSIS 11 1. Rehabilitation Act and Civil Rights Act Claims 12 Pinzon alleges that California state police officers discriminated against him due to his 13 disability status, in violation of Section 504 of the Rehabilitation Act, and his race, in violation of 14 Title VI of the Civil Rights Act of 1964. Compl. at 6. 15 Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual 16 with a disability . . . shall, solely by reason of her or his disability, be excluded from participation 17 in, be denied the benefits of, or be subjected to discrimination under any program or activity 18 receiving Federal financial assistance.” 29 U.S.C. § 794 (emphasis added). To prevail on a 19 Section 504 claim, a plaintiff must establish “(1) he is an individual with a disability; (2) he is 20 otherwise qualified to receive [a certain] benefit; (3) he was denied the benefits of [a certain 21 program] solely by reason of his disability; and (4) the program receives federal financial 22 assistance.” Updike v. Multnomah County, 870 F.3d 939, 949 (9th Cir. 2017) (citing Duvall v. 23 County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)).1 24 Title VI of the Civil Rights of 1964 provides that “[n]o person in the United States shall, 25 1 Title II of the ADA offers additional protections. To allege a Title II claim, a plaintiff must show 26 (1) he is a qualified individual with a disability; (2) he was discriminated against by the public entity; and (3) the discrimination was due to his disability. Updike, 870 F.3d at 949. Title II 27 protections extend to state and county jails. Id. Pinzon fails to assert a prima facie Title II 1 on the ground of race, color, or national origin, be excluded from participation in, be denied the 2 benefits of, or be subjected to discrimination under any program or activity receiving Federal 3 financial assistance.” 42 U.S.C. § 2000d (emphasis added); see Yu v. Idaho State Univ., 15 F.4th 4 1236, 1242 (9th Cir. 2021). Additionally, to succeed on a Title VI claim, a plaintiff must prove 5 intentional discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001); Yu, 15 F.4th at 6 1242. 7 Pinzon fails to provide more than conclusory allegations of discrimination without factual 8 support. For example, Pinzon alleges that Officer Martin (who is not a named defendant) engaged 9 in “[i]ntimidating acts” and spoke to him using a “hostile tone.” Compl. at 6. However, Pinzon 10 must allege more than mere hostility, and clarify how Defendants treated him differently because 11 of his race or disability. See Yu, 15 F.4th at 1242; Updike, 870 F.3d at 949. Further, Pinzon fails 12 to allege that the entities alleged to have discriminated against him—the California Highway 13 Patrol and the Mendocino Sherriff’s Office—receive federal funds, as required by both statutes. 14 See 29 U.S.C. § 794; 42 U.S.C. § 2000d. Thus, Pinzon has failed to set forth sufficient allegations 15 to state a claim, and his claims are DISMISSED with leave to amend to provide the 16 aforementioned information, if possible. 17 2. Section 1983 Claims 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a right secured by 19 the Constitution or laws of the United States was violated, and (2) that the alleged violation was 20 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 21 Liability may be imposed on an individual defendant under section 1983 if the plaintiff can show 22 that the individual defendant proximately caused the deprivation of a federally protected 23 right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). “A person deprives another of a 24 constitutional right within the meaning of section 1983 if he does an affirmative act, participates in 25 another’s affirmative acts, or omits to perform an act which he is legally required to do, that 26 causes the deprivation of which the plaintiff complains.” Id. at 633 (citations omitted). 27 /// 1 Here, Pinzon does not name individual defendants, but instead names as defendants the 2 Mendocino County Sheriff’s Office and California Highway Patrol. Compl. at 1-2.2 For a 3 government entity to be liable under Section 1983, the constitutional violations must directly stem 4 from a policy, custom, or practice adopted by the government entity. Monell v. Dep’t of Soc. 5 Servs. of City of New York, 436 U.S. 658, 690–91 (1978); see Dougherty v. City of Covina, 654 6 F.3d 892, 900 (9th Cir. 2011) (“A government entity may not be held liable under 42 U.S.C. 7 § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force 8 behind a violation of constitutional rights.”). 9 To establish a governmental entity’s liability under Monell, a plaintiff must demonstrate: 10 (1) that the plaintiff was deprived of a constitutional right; (2) the governmental entity had a 11 policy; (3) the policy amounted to “deliberate indifference” of the plaintiff’s constitutional right; 12 and (4) the policy is the “moving force” behind the constitutional violation. Dougherty, 654 F.3d 13 at 900. The failure to train may constitute “deliberate indifference” if “the need to train was 14 obvious and the failure to do so made a violation of constitutional rights likely.” Dougherty, 654 15 F.3d at 900 (citing City of Canton v. Harris, 489 U.S. 378, 390) (1989)). For each of the claims 16 detailed below, Pinzon fails to allege that the constitutional violations he suffered were due to the 17 California Highway Patrol’s or the Sheriff’s Office’s “deliberate policy, custom, or practice.” See 18 Galen v. Cnty. of L.A., 477 F.3d 652, 667 (9th Cir. 2007). 19 a. Malicious Prosecution Under the Fourth Amendment 20 To establish a Section 1983 malicious prosecution claim, a plaintiff must prove that 21 defendants: “(1) prosecuted [them] (2) with malice; (3) without probable cause; and (4) with ‘the 22 purpose of denying [them] equal protection or another constitutional right.’” Heard v. Jackson, 23

24 2 Should Pinzon choose to name individual officers as defendants in an amended complaint, he must address whether the officers have qualified immunity against the claims. “When an 25 individual sues a government official for violation of a constitutional right, the official is entitled to qualified immunity unless (1) the facts alleged, viewed in the light most favorable to the 26 individual asserting the injury, show that the official violated a constitutional right, and (2) the contours of the right were sufficiently clear so that a reasonable official would understand that his 27 conduct violated that right.” Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007). A 1 No. 21-CV-09472-JSC, 2022 WL 2356821, at *4 (N.D. Cal. June 30, 2022) (quoting Lacey v. 2 Maricopa Cnty., 693 F.3d 896, 919 (9th Cir. 2012)). A plaintiff alleging a Fourth Amendment 3 violation must also show that “the criminal prosecution ended without a conviction.” Thompson v. 4 Clark, 142 S. Ct. 1332, 1341 (2022). 5 Pinzon alleges that the Mendocino County Sherriff’s Office “falsif[ied] an arrest warrant” 6 that had “no support from the State judge.” Compl. at 8. “Ordinarily, the decision to file a 7 criminal complaint is presumed to result from an independent determination on the part of the 8 prosecutor, and thus, precludes liability for those who participated in the investigation or filed a 9 report that resulted in the initiation of proceedings.” Awabdy v. City of Adelanto, 368 F.3d 1062, 10 1067 (9th Cir. 2004) (citation omitted). However, Section 1983 claims are permitted against state 11 or local officials who “improperly exerted pressure on the prosecutor, knowingly provided 12 misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad 13 faith conduct that was actively instrumental in causing the initiation of legal proceedings.” Id. 14 Pinzon fails to allege the required elements of malicious prosecution: that Defendants 15 prosecuted him with malice, without probable cause, with the purpose of denying him equal 16 protection or another right, and that the prosecution ended favorably to Pinzon. Therefore, 17 Pinzon’s claim is DISMISSED with leave to amend to allege the elements of a malicious 18 prosecution claim. 19 b. Excessive Force Under the Fourth Amendment 20 Claims of excessive force in making an arrest or seizure are properly analyzed under the 21 Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 22 (1989). This analysis looks to “the facts and circumstances of each particular case, including the 23 severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the 24 officers or others, and whether he is actively resisting arrest or attempting to evade arrest by 25 flight.” Id. at 396; see also Tennessee v. Garner, 471 U.S. 1, 8–9 (1985) (“the question [is] 26 whether the totality of the circumstances justified a particular sort of search or seizure”). 27 Pinzon alleges that Officers Comer and Van Woerner “pushed [him] down to [his] face” in 1 the arrest warrant, writing that Pinzon “threw himself down to the ground.” Id. However, Pinzon 2 has not named those officers as defendants, nor has he alleged that they are not entitled to 3 qualified immunity. Additionally, Pinzon has not averred that the officers were following a 4 deliberate policy, custom, or practice. Accordingly, Pinzon’s claim is DISMISSED with leave to 5 amend. 6 c. Equal Protection Claim for Racial Segregation 7 Under the Equal Protection Clause of the Fourteenth Amendment, “no State shall ‘deny to 8 any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction 9 that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne 10 Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). The 11 “central mandate” of the Equal Protection clause is “racial neutrality in governmental 12 decisionmaking.” Miller v. Johnson, 515 U.S. 900, 904 (1995). Typically, racial classifications by 13 the government are reviewed under a strict scrutiny analysis. Parents Involved in Cmty. Sch. v. 14 Seattle Sch. Dist. No. 1, 551 U.S. 701, 720, (2007). And while the Fourteenth Amendment 15 protections extend to state jails, “[i]n the prison context … even fundamental rights such as the 16 right to equal protection are judged by a standard of reasonableness.” Walker v. Gomez, 370 F.3d 17 969, 974 (9th Cir. 2004) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). Specifically, courts 18 examine whether a prison official’s actions are “reasonably related to legitimate penological 19 interests.” Id. 20 Pinzon alleges that the “[j]ailer suggested he was putting me in [a] cell (free of any other 21 inmates) stating racial concerns.” Compl. at 7. He further alleges that the prosecutor stated that 22 “[this type of] arrangement … apparently is reserved for hostile incarcerants [sic].” Id. Pinzon 23 fails to allege that similarly situated individuals were treated differently or that the actions were 24 not reasonably related to a legitimate penological interest. See Walker, 370 F.3d at 974; Cleburne, 25 473 U.S at 439. Moreover, he does not name as a defendant the individual or entity responsible 26 for placing him in a cell without other inmates. Accordingly, Pinzon’s claim is DISMISSED with 27 leave to amend. 1 IV. MOTION FOR APPOINTMENT OF COUNSEL 2 Pinzon also seeks appointment of counsel under the Crime Victims’ Rights Act, 18 U.S.C. 3 § 3771(c)(2), and under the Victims’ Rights and Restitution Act, 34 U.S.C. § 20141. ECF No. 5. 4 Neither statute grants this Court the authority to appoint counsel. However, in proceedings in 5 forma pauperis, a district court “may request an attorney to represent any person unable to afford 6 counsel.” 28 U.S.C. § 1915(e)(1). 7 The decision to request counsel to represent an indigent litigant under 28 U.S.C. § 1915 is 8 within “the sound discretion of the trial court and is granted only in exceptional 9 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). In determining 10 whether “exceptional circumstances” exist, the Court must evaluate the likelihood of the plaintiff’s 11 success on the merits and the plaintiff’s ability to articulate his claims “in light of the complexity 12 of issues involved.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) 13 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 14 There is no doubt that not having a lawyer puts a party at a disadvantage in our adversarial 15 system of justice. However, the Court is compelled to follow controlling precedent and determine 16 if “exceptional circumstances” exist to appoint counsel. Pinzon failed to provide any reasons as to 17 why he requires counsel, and thus has not demonstrated exceptional circumstances. Accordingly, 18 Plaintiff’s motion for the appointment of counsel is DENIED. The Court will reconsider the 19 necessity of appointing counsel if circumstances warrant such action at a later date. 20 CONCLUSION 21 For the foregoing reasons, the Court orders as follows: 22 1. Plaintiff’s complaint is DISMISSED with leave to amend. 23 2. Plaintiff’s motion for appointment of counsel is DENIED. 24 3. If Plaintiff wishes to pursue this action, Plaintiff must file an amended complaint no 25 later than 60 days from the date of this Order. 26 4. If Plaintiff fails to amend, the case will be dismissed under Rule 41(b) for failure to 27 prosecute. See Toyota Landscape Co., Inc. v. Building Material & Dump Truck 1 The Court advises Plaintiff that a Handbook for Pro Se Litigants, which contains helpful 2 || information about proceeding without an attorney, is available through the Court’s website, 3 http://cand.uscourts. gov/pro-se. 4 The Court also advises Plaintiff that additional assistance may be available by making an 5 appointment with the Legal Help Center. There is no fee for this service. To make an 6 appointment with the Legal Help Center in San Francisco, Plaintiff may email fedpro @ sfbar.org 7 || or call 415-782-8982. The Help Center’s website is available at 8 || https://cand.uscourts.gov/about/court-programs/legal-help-desks/. Lawyers at the Legal Help 9 Center can provide basic assistance to parties representing themselves but cannot provide legal 10 || representation. 11 12 IT IS SO ORDERED. 13 Dated: June 23, 2023

14 af Wc - ha @

ARACELI MARTINEZ-OLGUIN

= 16 United States District Judge 17

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