# Henderson v. Bakersfield Police Department

> District Court, E.D. California · April 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10043965

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10043965

## How later opinions describe it (automated extraction)

- Stating it was “clearly established long ago 20 that an officer may not conduct a warrantless arrest absent probable cause.”
- Stating it was “clearly established long ago 20 that an officer may not conduct a warrantless arrest absent probable cause.”

## Opinion text

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UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10

11 OCTAVIO JAMAL HENDERSON, Case No. 21-cv-01771-DAD-BAK

12 Plaintiff, FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING ACTION
13 v. FOR FAILURE TO STATE A CLAIM

14 KEITH SCHLECCT, et al., (ECF No. 13)

15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN
DAYS
16
I.
17
INTRODUCTION
18
Octavio Jamal Henderson (“Plaintiff”), proceeding pro se and in forma pauperis, filed
19
this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
20
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
21
On March 16, 2022, the Court screened Plaintiff’s first amended complaint and granted
22
Plaintiff thirty days to file a second amended complaint (ECF No. 12.) Currently before the
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Court is Plaintiff’s second amended complaint, filed on April 8, 2022. (ECF No. 13.) For the
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reasons discussed herein, it is recommended that Plaintiff’s complaint be dismissed for failure to
25
state a cognizable claim.
26
/ / /
27
/ / /
1 II.
2 SCREENING REQUIREMENT
3 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court
4 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which
5 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from
6 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)
7 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners);
8 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis
9 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70
10 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis
11 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998)
12 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to
13 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii)
14 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
15 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
16 In determining whether a complaint fails to state a claim, the Court uses the same
17 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a
18 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R.
19 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the
20 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
22 544, 555 (2007)).
23 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and
24 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,
25 94 (2007). Although a court must accept as true all factual allegations contained in a complaint,
26 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A]
27 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops
1 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for
2 the court to draw the reasonable conclusion that the defendant is liable for the misconduct
3 alleged. Iqbal, 556 U.S. at 678.
4 III.
5 COMPLAINT ALLEGATIONS
6 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of
7 the sua sponte screening requirement under 28 U.S.C. § 1915.
8 Plaintiff names the following individuals as Defendants: (1) Eby Bailey (“Bailey”),
9 identified as a police officer with the Bakersfield Police Department; (2) Cory Blanchard
10 (“Blanchard”), identified as a police officer with the Bakersfield Police Department; (3) Keith
11 Schlecht (“Schlecht”), identified as a detective with the Bakersfield Police Department; and (4)
12 Officer King, identified as a Warrant Officer with the Bakersfield Police Department. (Second
13 Am. Compl. (“SAC”) 2-3,1 ECF No. 13.)
14 Plaintiff alleges federal question jurisdiction for claims described as a violation of his
15 right to due process, an excessive bail request, and an arrest warrant based on false information.
16 (Id. at 4.) The Court shall reproduce the body of Plaintiff’s current complaint:
17 On June 19, 2019[,] Officer Cory Blanchard answered a call to Q
St[.] when I was hit by a Honda in the parking lot of a medical
18 facility. Immediately upon hearing the version of events from
[t]he person who hit me, he asked if they would like to press
19 charges against me for assault. This was done without speaking to
either of the two witnesses who were in the vehicle that I was
20 driving. Officer Eby Bailey assisted him on this call and also asked
the driver of the vehicle if he wanted to press charges on me.
21 Neither officer had yet spoken to the witness[es] that were in the
vehicle that I was driving. One witness stayed behind as she was
22 the owner of the vehicle and the other (Christy Raguini) went with
me to the hospital in the ambulance. When the woman who stayed
23 behind (Cynthia Garland) was questioned, it was only after they
had asked the Honda driver if he wanted to press charges against
24 me for damaging his vehicle. One of the police officers was then
sent to the hospital to obtain a statement from me. I do know that I
25 was asked what happened and I did explain to him that we ended
up in the same parking lot because I was trying to figure out if the
26 driver was someone I knew or what was going on. He proceeded

27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the
CM/ECF electronic court docketing system.
1 to leave the parking lot and hit me with his vehicle and then ran me
over with his tire. I was questioned almost right after arriving at
2 the hospital. I had hit my head on the black top when I was hit and
although I answered questions at the time, I have subsequently
3 suffered a seizure since the head injury and do not remember
exactly what questions were asked or how I answered the
4 questions. By not properly questioning my witnesses and
questioning me right after a head injury, I was not afforded my due
5 process.

6 Detective Keith Schlecct was assigned to investigate the events of
June 19, 2019. I was able to obtain this information when I went
7 to the police department to obtain a copy of the police report. I
was given his name because the report was not ready. When asked
8 why and why the person who hit me was not arrested, I was told
that it was under investigation and most likely a civil matter. I left
9 a message for the detective to contact me as soon as possible
because I had questions and knew he should have questions. When
10 he did finally call me, he said that he was on his days off and had
not had a chance to review the case and that he would contact me
11 as soon as he had any questions. I proceeded to ask him why the
driver of the car that hit me had not been arrested and he raised his
12 phone at me and stated that I was the one who was in danger of
being arrested. I did not hear from him again. I did make several
13 attempts to contact him and even went down to the police station
on a number of occasions to ask questions about how the
14 investigation was going. I was left waiting in the lobby for close to
an hour with no contact from the detective and finally had to leave
15 because of prior engagements. There was no further contact from
Detective Schlecct. Finally, in August of 2019, we filed a formal
16 complaint with the Internal Affairs department of the Bakersfield
Police Department because we had no knowledge of what was
17 going on with the investigation or even if one was being
conducted. We still had no contact with the detective, either by
18 phone call or writing.

19 In December of 2019, a bounty officer named Officer King arrived
at my home with an arrest warrant in the amount of $67,000.00 for
20 felony vandalism, misdemeanor child endangerment and a vehicle
violation, reckless driving. After reviewing the arrest warrant, we
21 realized that the social security number was incorrect. Also, I have
not [] been convicted of any crime for over 20 years and have
22 never been accused of property damage or child endangerment, or
even reckless driving. Since the incident I have never received any
23 type of summons to appear in court or any type of citation in the
mail for reckless driving or any of the other 3 charges. Upon
24 reviewing the arrest warrant, not only did we realize that Detective
Schlecct requested an arrest warrant with an incorrect social
25 security number, but he also requested the warrant in September of
2019, a full month after we filed a complaint against the
26 Bakersfield Police department. On the day of my arrest, my two
witnesses went to speak to the detective about the case and not
27 only did he leave them waiting in the lobby for close to 20
minutes, when he did come down to speak to them, he was
1 questions or explain how he came to the conclusion he came to.
The State Attorney General’s office did have representatives in the
2 lobby on that day from the department of justice who witnessed the
entire interaction. Attorney Nancy Beninati and her assistant
3 Tanya Koshi followed my witnesses outside to get their
information and have been in contact with Christy Raguini since.
4
In October 2021, we finally received the report from the
5 department of justice. The Bakersfield Police Department was
investigated for the same type of mishandling of investigations,
6 including being biased and practicing racism while investigating
crimes.2
7
8 (Id. at 5-7.)
9 IV.
10 DISCUSSION

11 A. Review of Plaintiff’s Omitted Factual Allegations Between Pleadings
12 The Court finds it significant that Plaintiff has now omitted almost all factual details
13 concerning the lead-up to the incident in question, that were previously provided in the first
14 amended complaint. In the first amended complaint, Plaintiff stated in relevant part:
15 On June 19, 2019 I was involved in an incident where another car
was for some reason trying to run me off the road and slam on his
16 brakes in front of me whenever I tried to go around him to avoid an
accident. The passengers in the car with me, Cynthia Garland and
17 Christy Raguini called 911 to let them know we were following
him to get his license plate number because he was driving
18 recklessly. The dispatcher, who I later found out, was a police
officer said that he didn’t understand why we were following him
19 since they weren’t going to do anything. We hung up and tried
again to go about our business and the Honda Civic again began
20 engaging in reckless behavior.

21 I finally pulled over and got out of the car in a medical center
parking lot. The driver of the Honda was in the same parking lot
22 and he attempted to leave the parking lot, at which time he hit me
and ran me over.
23
24 (ECF No. 11 at 4.)
25 / / /
26 / / /
27
2 While Plaintiff mentions bias and racism in relation to mishandling of investigations discussed in the report,
1 In screening the first amended complaint, the Court made the following preliminary
2 comments regarding the course of events as described therein:
3 By Plaintiff’s own account, the incident appears to be a case of
road rage between two cars, with Plaintiff alleging that the other
4 car was trying to run him off the road and slam on their brakes in
front of him whenever “he tried to go around him to avoid an
5 accident.” It is unclear why Plaintiff repeatedly was trying to pass
or go around someone driving recklessly rather than taking an
6 alternate route or slowing down to allow the vehicle to get ahead of
the area where Plaintiff’s car was driving. Plaintiff then
7 admittedly followed the vehicle in question despite what appear[s]
to be either a statement from the dispatcher expressing confusion
8 as to why Plaintiff was following the car in light of the dispatcher
informing the Plaintiff that the police were not coming, or some
9 sort of instructions from the dispatcher informing the Plaintiff
there was no reason to follow the car.
10
Plaintiff alleges he nonetheless continued to follow the car as it
11 continued to engage in reckless behavior. Plaintiff vaguely states
he pulled over in a parking lot, and the driver of the other car was
12 in the same parking lot. Plaintiff does not describe which vehicle
entered the parking lot first, however, from Plaintiff’s repeated
13 statements that he was following the car, it appears he followed the
vehicle into a medical center parking lot. Plaintiff then only states
14 that the vehicle attempted to leave the parking lot, and Plaintiff
was struck by the vehicle. Plaintiff does not explain why he left
15 his vehicle, if he was approaching the other vehicle, or if he was
trying to prevent the other vehicle from leaving the parking lot by
16 standing in front of it and blocking its exit, after apparently
following the vehicle and repeatedly trying to pass it while the
17 other car was allegedly driving recklessly and purposely slamming
on its brakes.
18
Plaintiff then generally describes dissatisfaction with the
19 investigation process, however, admits that he does not remember
what questions were asked on the night of the incident, nor how he
20 answered. On the other hand, Plaintiff states the driver of the other
vehicle told the officers that he hit Plaintiff with the vehicle
21 because that person was scared because Plaintiff jumped on the
vehicle to keep the other vehicle from leaving. It appears Plaintiff
22 was charged with endangerment of a child and thus there may have
been a child in the vehicle of the other person.
23
(ECF No. 12 at 5-6.)
24
It appears that Plaintiff, in consideration of the above comments, has now omitted large
25
portions of the above facts. Now, Plaintiff’s second amended complaint essentially begins after
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being struck in the parking lot: “On June 19, 2019[,] Officer Cory Blanchard answered a call to
27
Q St[.] when I was hit by a Honda in the parking lot of a medical facility. Immediately upon
1 hearing the version of events from [t]he person who hit me, he asked if they would like to press
2 charges against me for assault.” (Compl. 6.)3
3 The Court need not accept contradictory allegations that omit relevant facts, as true.
4 Haney v. Htay, No. 1: 16-CV-00310 AWI SKO (PC), 2017 WL 4699851, at *5 (E.D. Cal. Oct.
5 19, 2017) (in prisoner screening, finding x-ray exhibits attached to original complaint
6 contradicted allegations in first amended complaint and new complaint omitted key pieces of
7 information and such contradictory allegations need not be accepted as true), aff’d, 719 F. App’x
8 719 (9th Cir. 2018); Clayton v. Smith, No. 1:17-CV-00309 BAM (PC), 2018 WL 3218366, at *3
9 (E.D. Cal. June 29, 2018) (in prisoner screening, finding that Plaintiff “has omitted factual
10 allegations from his original complaint and first amended complaint regarding treatments he
11 received . . . [and] [a]lthough a plaintiff may make clarifications in an amended pleading, the
12 Court is not required to ignore omissions of fact or contradictions of fact in later pleadings . . .
13 [t]hus, the Court will consider omitted factual allegations in the previous pleadings.”); Pickering
14 v. California Dep’t of Corr., No. 1:13-CV-01164 DAD BAM (PC), 2016 WL 7104167, at *4
15 (E.D. Cal. Dec. 5, 2016) (in prisoner screening, finding “Plaintiff may not omit relevant facts in
16 his amended complaint in an effort to state a cognizable claim.”); Jefferson v. Medley, No. 1:13-
17 CV-00035-LJO, 2014 WL 1747590, at *3 (E.D. Cal. May 1, 2014) (in prisoner screening,
18 finding the first amended complaint, signed under penalty of perjury, contained facts that were
19 omitted in the second and third amended complaints).
20 If Plaintiff submits objections to these findings and recommendations, “he is to
21 cogently explain this inconsistency.” Gabarrete v. Hazel, No. 1:11-CV-00324-MJS PC, 2012
22 WL 1966023, at *3 (E.D. Cal. May 31, 2012) (in prisoner screening, finding “[i]t appears that
23 Plaintiff has violated Rule 11 of the Federal Rule of Civil Procedure by submitting contradictory
24 statements . . . Plaintiff is not allowed to proceed on his excessive force claim against Defendants
25 and will not be allowed to do so unless he provides sufficient explanation as to the contradictions
26 between the allegations of the Second Amended Complaint and the exhibits attached to his

27 3 As discussed below in the section pertaining to habeas relief, it appears Plaintiff has now omitted the fact that he is
currently on probation, from the current complaint. It is not clear whether the omission was in order to address the
1 original Complaint in this action, and provides truthful facts detailing” the incident.); see also
2 Lamon v. Amrheign, No. 1:12-CV-00296-AWI-GS, 2014 WL 3940286, at *6 (E.D. Cal. Aug.
3 12, 2014) (in prisoner screening, finding that given the discrepancy between the original
4 complaint and first amended complaint, “it appear[ed] that Plaintiff ha[d] omitted material facts
5 from the First Amended Complaint,” and thus could not demonstrate sufficient causal connection
6 for the First Amendment action, and admonishing the Plaintiff that such “intentional omission of
7 material facts in a pleading constitutes a falsehood and may result in the imposition of sanctions
8 under Rule 11.”).
9 B. Federal Rule of Civil Procedure 8
10 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim
11 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement must
12 simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which
13 it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal
14 quotation marks omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals
15 of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
16 Iqbal, 556 U.S. at 678 (citation omitted). This is because, while factual allegations are accepted
17 as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss v. U.S.
18 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Therefore, Plaintiff must set forth “sufficient
19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” A claim
20 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
21 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
22 678 (citations and internal quotation marks omitted).
23 As currently pled, Plaintiff’s complaint does not contain enough factual details to permit
24 the Court to draw the reasonable inference that any of the Defendants are liable for a violation of
25 Plaintiff’s rights. Iqbal, 556 U.S. at 678. Plaintiff’s allegations are vague and conclusory
26 statements that his rights were violated because the police officers who responded to an incident
27 allegedly believed the other person’s story over Plaintiff’s through a police investigation, and
1 insufficiently supported by factual details, do not suffice to state any claim against any of the
2 Defendants. Plaintiff does not, for example, allege destruction of evidence, or falsification of
3 evidence or police records.
4 For these reasons, Plaintiff’s complaint fails to comply with Rule 8’s pleading standard.
5 C. Habeas Relief
6 “Federal law opens two main avenues to relief on complaints related to imprisonment: a
7 petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. §
8 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity
9 of any confinement or to particulars affecting its duration are the province of habeas corpus;
10 requests for relief turning on circumstances of confinement may be presented in a § 1983
11 action.” Id. (internal citation omitted). It has long been established that state prisoners cannot
12 challenge the fact or duration of their confinement in a section 1983 action and their sole remedy
13 lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as
14 the favorable termination rule or the Heck bar, this exception to section 1983’s otherwise broad
15 scope applies whenever state prisoners “seek to invalidate the duration of their confinement-
16 either directly through an injunction compelling speedier release or indirectly through a judicial
17 determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 544
18 U.S. at 81; Heck v. Humphrey, 512 U.S. 477, 482, 486-487 (1994); Edwards v. Balisok, 520
19 U.S. 641, 644 (1997).
20 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that in order to
21 recover damages for alleged “unconstitutional conviction or imprisonment, or for other harm
22 caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
23 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged
24 by executive order, declared invalid by a state tribunal authorized to make such determination, or
25 called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”
26 512 U.S. at 486. Thus, “a state prisoner’s § 1983 action is barred (absent prior invalidation)-no
27 matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
1 would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544
2 U.S. at 81-82.
3 Plaintiff’s previously filed first amended complaint alleged he was on probation,
4 apparently stemming from the charges related to the incident. (See ECF No. 11 at 4 (“I am not
5 incarcerated; I am currently on probation and have been since 01/30/2020”).) Plaintiff has now
6 omitted the previously stated fact that he is on probation from the current second amended
7 complaint. Plaintiff does not provide the Court with specific details concerning whether he was
8 convicted at trial, submitted a guilty plea or otherwise, though does aver that he now has a felony
9 on his record. (Compl. at 8.) If Plaintiff chooses to file objections to these findings and
10 recommendations, Plaintiff is expected to address the omission of the fact of whether he is
11 currently on probation from the second amended complaint. Plaintiff is also expected to
12 explain the circumstances surrounding such probation and any conviction related to the
13 incident in question. See Gabarrete, 2012 WL 1966023, at *3.
14 If Plaintiff has not had his sentence of probation declared invalid, or if Plaintiff is
15 challenging any part of his sentence that has not been declared invalid, the proper avenue to seek
16 relief is by way of habeas corpus petition filed pursuant to 28 U.S.C. § 2254. See Chico Scrap
17 Metal, Inc. v. Robinson, 560 F. App’x 650 (9th Cir. 2014) (“In addition, Heck bars the claims
18 because Plaintiffs were sentenced to compliance with the challenged cleanup orders as a
19 condition of their probation in the criminal case, as specifically directed by the state court in its
20 criminal judgment. . . . Indeed, many of Plaintiffs’ disputes are the subject of state court
21 litigation seeking to revoke their probation in the criminal case, further demonstrating
22 the Heck bar.”); Walton v. Hopper, No. 222CV00453JAMACPS, 2022 WL 837268, at *3 (E.D.
23 Cal. Mar. 21, 2022) (“[A] probation condition is part of a sentence imposed by a criminal trial
24 court. Accordingly, many courts have found that Heck bars a § 1983 challenge to a condition of
25 probation unless and until that condition has been successfully challenged and set aside.”);
26 Larson v. Baker, No. CV 18-203-M-DLC-JCL, 2019 WL 1937145, at *2 (D. Mont. Feb. 15,
27 2019) (“The rule in Heck applies to the prosecution of a § 1983 claim that calls into question the
1 M-DLC-JCL, 2019 WL 1932443 (D. Mont. May 1, 2019); Crow v. Penry, 102 F.3d 1086, 1087
2 (10th Cir. 1996) (“It applies to proceedings that call into question the fact or duration of parole or
3 probation.”) (citing Jackson v. Vannoy, 49 F.3d 175 (5th Cir.), cert. denied, 516 U.S. 851
4 (1995)); cf. McFarland v. City of San Francisco, No. C00-2878 MMC, 2001 WL 793298, at *3–
5 4 (N.D. Cal. July 9, 2001) (“Plaintiff, however, is on probation until approximately June 2003 . .
6 . and thus is considered to be ‘in custody’ for purposes of both federal and state habeas relief . . .
7 Consequently, plaintiff’s § 1983 claim is not cognizable unless and until her conviction is
8 reversed or otherwise invalidated.”), rev’d sub nom. McFarland v. City & Cty. of San Francisco,
9 44 F. App’x 155 (9th Cir. 2002) (“We conclude that neither Heck nor Harvey are implicated in
10 McFarland’s case because her conviction was based on a guilty plea . . . Likewise in the present
11 case, McFarland’s claims are based on the manner in which the evidence was seized during the
12 search. Her § 1983 claims are based on excessive force being used during the body cavity
13 search, not on the underlying validity of the search. Based on Ove, we hold that the present
14 action does not have the possibility of undermining McFarland’s conviction.”); Byrd v. Phoenix
15 Police Dep’t, 885 F.3d 639, 643 (9th Cir. 2018) (“Answering this question, we find
16 that Heck does not bar Byrd's § 1983 claims. Because Byrd’s conviction resulted from a plea
17 agreement and Byrd alleged no facts in his complaint suggesting that the plea was not knowing
18 and voluntary, success in the § 1983 action would not affect his conviction.”).
19 Accordingly, to the extent Plaintiff wishes to challenge his sentence which has not been
20 declared invalid by the state court, he must file a habeas corpus petition, and as currently pled,
21 Plaintiff fails to state a cognizable claim.
22 D. Claims Relating to the Warrant, Arrest, and Bail
23 The Fourth Amendment to the Constitution of the United States provides:
24 The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
25 shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
26 describing the place to be searched, and the persons or things to be
seized.
27
U.S. Const., amend. IV.
1 Warrantless searches would violate the Fourth Amendment unless the search falls within
2 an exception to the Fourth Amendment’s warrant requirement. See United States v. Ojeda, 276
3 F.3d 486, 488 (9th Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). “A claim
4 for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment, provided
5 the arrest was made without probable cause or other justification.” Dubner v. City & Cty. of San
6 Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause to arrest exists when officers
7 have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable
8 caution to believe that an offense has been or is being committed by the person being arrested.”
9 United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). “While conclusive evidence of
10 guilt is of course not necessary under this standard to establish probable cause, [m]ere suspicion,
11 common rumor, or even strong reason to suspect are not enough.” Id. (internal quotations and
12 citation omitted) (alteration in original).
13 Plaintiff has not provided facts to support a claim of unlawful search or unlawful arrest
14 against any Defendant. First, Plaintiff would fail to state a claim for unlawful arrest because he
15 specifically states he was arrested pursuant to a warrant. “The Fourth Amendment requires law
16 enforcement officers to have probable cause to make an arrest if they do not have an arrest
17 warrant.” Braden v. Los Angeles Police Dep’t, No. CV 16-7633 JVS(JC), 2017 WL 78467, at
18 *3 (C.D. Cal. Jan. 9, 2017) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)); see also Blankenhorn
19 v. City of Orange, 485 F.3d 463, 476 (9th Cir. 2007) (Stating it was “clearly established long ago
20 that an officer may not conduct a warrantless arrest absent probable cause.”).
21 While Plaintiff did not directly name a judge in the complaint, to the extent Plaintiff
22 alleges the warrant was not based on probable cause, or was improperly issued because of an
23 incorrect social security number,4 Plaintiff is advised that judges are immune from liability under
24 § 1983 when they are functioning in their official capacities under proper jurisdiction. See
25 Imbler v. Pactman, 424 U.S. 409, 427 (1976); see also Olsen v. Idaho State Bd. of Medicine, 363
26 F.3d 916, 922 (9th Cir.2004) (“Absolute immunity is generally accorded to judges and

27 4 While Plaintiff claims the social security number as provided by Detective Schlecct was incorrect, Plaintiff does
not claim that he was not meant or understood to be the proper subject or target of the warrant for the alleged crime,
1 prosecutors functioning in their official capacities”); Ashelman v. Pope, 793 F.2d 1072, 1075-77
2 (9th Cir.1986) (noting that judges are generally immune from § 1983 claims except when acting
3 in “clear absence of all jurisdiction . . . or performs an act that is not ‘judicial’ in nature,” and
4 prosecutors are generally immune unless acting without “authority”) (internal citations omitted);
5 Walters v. Mason, No. 215CV0822KJMCMKP, 2017 WL 6344319, at *2 (E.D. Cal. Dec. 12,
6 2017) (same); Forte v. Merced Cty., No. 1:15-CV-0147 KJM-BAM, 2016 WL 159217, at *12–
7 13 (E.D. Cal. Jan. 13, 2016) (“prosecutorial immunity protects eligible government officials
8 when they are acting pursuant to their official role as advocate for the state”), report and
9 recommendation adopted, No. 1:15-CV-0147-KJM-BAM, 2016 WL 739798 (E.D. Cal. Feb. 25,
10 2016); Torres v. Saba, No. 16-CV-06607-SI, 2017 WL 86020, at *3–4 (N.D. Cal. Jan. 10, 2017).
11 Where a prosecutor acts within his authority “ ‘in initiating a prosecution and in presenting the
12 state’s case,’ absolute immunity applies.” Ashelman, 793 F.2d at 1076 (quoting Imbler, 424
13 U.S. at 431). This immunity extends to actions during both the pre-trial and posttrial phases of a
14 case. See Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984).
15 Individuals have a constitutional due process right “not to be subjected to criminal
16 charges on the basis of false evidence that was deliberately fabricated by the government.”
17 Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc). To establish such a due
18 process violation, a plaintiff must, at a minimum, allege either: (1) that government officials
19 continued their investigation “despite the fact that they knew or should have known that
20 [Plaintiff] was innocent;” or (2) “used investigative techniques that were so coercive and abusive
21 that [they] knew or should have known those techniques would yield false information.”
22 Cunningham v. Perez, 345 F.3d 802, 811 (9th Cir. 2003) (quoting Devereaux, 263 F.3d at 1076).
23 Other than generally stating that police officers believed another witness over Plaintiff
24 when investigating an incident, Plaintiff fails to indicate in any specific detail how any officer
25 mishandled any witness, or any specific evidence in a manner that demonstrates intentional
26 falsification of any record or evidence.5 Plaintiff’s bare conclusory allegations are not sufficient

27 5 While Plaintiff claims the social security number as provided by Detective Schlecct was incorrect, Plaintiff does
not claim that he was not meant or understood to be the proper subject or target of the warrant for the alleged crime,
1 to establish a claim, and do not satisfy the requirements of Federal Rule of Civil Procedure 8 as
2 the Court found above.
3 The Eighth Amendment’s “Excessive Bail Clause prevents the imposition of bail
4 conditions that are excessive in light of valid interests the state seeks to protect by offering bail.”
5 Galen v. Cnty. of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (citing United States v.
6 Salerno, 481 U.S. 739, 754 (1987)). Both the Supreme Court and the Ninth Circuit have
7 assumed, but never decided, that the Clause is incorporated against the states. Id. at 659
8 (“Neither the Supreme Court nor we have held that the Clause is incorporated against the States.
9 . . . We follow the Supreme Court in “assum[ing]” without deciding that the Clause is
10 incorporated against the States.”). Bail is considered excessive if set at a figure higher than an
11 amount reasonably calculated to achieve the government’s valid interests. Id. at 660 (citing
12 Salerno, 481 U.S. at 754; Stack v. Boyle, 342 U.S. 1, 3 (1951)). To prevail on a claim under §
13 1983, a plaintiff must show that the putative governmental interest is invalid or that “bail was
14 excessive in light of the purpose for which it was set.” Id. at 661. Whether the amount is
15 beyond the plaintiff's means is irrelevant. Id. at 662. In addition, the plaintiff must demonstrate
16 that the defendants were the “actual and proximate cause of his bail enhancement.” Id. at 663.
17 Here, there is no indication that the named Defendants had any role in an enhancement of
18 any bail amount, nor how they would. See Williams v. Clark, No. 214CV00414APGPAL, 2015
19 WL 6005141, at *6 (D. Nev. Oct. 14, 2015) (“Plaintiff failed to state a claim because: (1) the
20 LVMPD Officer did not set his bail; (2) Plaintiff has not alleged that his bail was enhanced for
21 an improper purpose or that it was excessive in light of the reason it was set; and (3) Plaintiff
22 provided no information about the criminal charges filed against him, his criminal history, if any,
23 or any of the other relevant factors that were considered in setting his bail.”). Further, while
24 Plaintiff has not named a judge or judicial officer, even if he had, they are generally immune
25 from such suits, as it “is generally well established that ‘granting bail and fixing its amount are
26 judicial or quasi-judicial functions.’ ” Hill v. Ponner, No. 118CV01471DADSKO, 2019 WL
27 142280, at *3 (E.D. Cal. Jan. 9, 2019) (quoting Valley Bail Bonds v. Budeski, No. CV–14–24–
1 Floyd, 413 F.Supp. 574, 575 (D. Nev. 1976)) (citing Pattillo v. White, 890 F.2d 420 at *1 (9th
2 Cir. 1989) (unpub.) (affirming dismissal of § 1983 claims against judge for decisions made
3 during bail proceedings on grounds of absolute judicial immunity)).
4 Accordingly Plaintiff has not stated a claim for a violation of the Fourth or Eighth
5 Amendments.
6 E. Section 1983, Supervisory Liability, and Municipal Liability
7 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or
8 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d
9 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);
10 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim under section 1983, a
11 plaintiff is required to show that (1) each defendant acted under color of state law and (2) each
12 defendant deprived her of rights secured by the Constitution or federal law. Long, 442 F.3d at
13 1185 (9th Cir. 2006). There is no respondeat superior liability under section 1983, and
14 therefore, each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677.
15 To state a claim, Plaintiff must demonstrate that each defendant personally participated in the
16 deprivation of his rights. Jones, 297 F.3d at 934.
17 In other words, to the extent Plaintiff is attempting to make a claim against an officer that
18 was not personally involved but was only acting as a supervisor over an officer, Plaintiff cannot
19 state a claim unless they were personally and directly involved in the violation of his rights.
20 Plaintiff previously appeared to attempt to name the Bakersfield Police Department as a
21 Defendant, however, does not appear to be doing so in the most recently filed complaint. A local
22 government unit may not be held responsible for the acts of its employees under a respondeat
23 superior theory of liability. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978).
24 Rather, a local government unit may only be held liable if it inflicts the injury complained of
25 through a policy or custom. Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir.
26 2010). Generally, to establish municipal liability, the plaintiff must show that a constitutional
27 right was violated, the municipality had a policy, that policy was deliberately indifferent to
1 violation. Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 400 (1997); Burke
2 v. County of Alameda, 586 F.3d 725, 734 (9th Cir. 2009); Gibson v. County of Washoe, Nev.,
3 290 F.3d 1175, 1185-86 (9th Cir. 2002). “The custom or policy must be a ‘deliberate choice to
4 follow a course of action . . . made from among various alternatives by the official or officials
5 responsible for establishing final policy with respect to the subject matter in question.’ ” Castro
6 v. Cty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (quoting Pembaur v. City of
7 Cincinnati, 475 U.S. 469, 483 (1986)).
8 A failure to train may establish liability where such omission of training amounts to
9 deliberate indifference to a constitutional right. Clouthier v. Cty. of Contra Costa, 591 F.3d
10 1232, 1249-50 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d 1060. This
11 standard is met when “the need for more or different training is so obvious, and the inadequacy
12 so likely to result in the violation of constitutional rights, that the policymakers of the city can
13 reasonably be said to have been deliberately indifferent to the need.” Id. at 1249 (quoting City of
14 Canton v. Harris, 489 U.S. 378, 390 (1989). “For example, if police activities in arresting
15 fleeing felons ‘so often violate constitutional rights that the need for further training must have
16 been plainly obvious to the city policymakers,’ then the city’s failure to train may constitute
17 ‘deliberate indifference.’ ” Id. “Only where a failure to train reflects a ‘deliberate’ or
18 ‘conscious’ choice by the municipality can the failure be properly thought of as an actionable
19 city ‘policy.’ ” City of Canton, 489 U.S. at 379. “A pattern of similar constitutional violations
20 by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for
21 purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (citation omitted).
22 A plaintiff seeking to impose liability upon a municipality is required to identify the
23 policy or custom that caused the constitutional injury. Bd. of Cty. Comm’rs of Bryan Cty., Okl.,
24 520 U.S. at 403. If Plaintiff is attempting to bring claims against the police department, Plaintiff
25 has failed to state a plausible claim based on a custom or policy or failure to train.6
26 / / /

27 6 Again, while Plaintiff mentions bias and racism in relation to mishandling of investigations discussed in the report
he received in October of 2021 (ECF No. 13 at 7), Plaintiff makes no specific allegations of racism or bias by the
1 V.
2 CONCLUSION AND RECOMMENDATION
3 Plaintiff has failed to state a cognizable claim for a violation of his federal rights in this
4 | action.
5 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's second
6 | amended complaint filed April 8, 2022 (ECF No. 13), be DISMISSED for failure to state a
7 | cognizable claim.’
8 This findings and recommendations is submitted to the district judge assigned to this
9 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen
10 | (14) days of service of this recommendation, Plaintiff may file written objections to this findings
11 | and recommendations with the court. Such a document should be captioned “Objections to
12 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the
13 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
14 | Plaintiff is advised that failure to file objections within the specified time may result in the
15 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
16 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
17
18 IT IS SO ORDERED. TA. ee
19 | Dated: _ April 15, 2022 eee eee
UNITED STATES MAGISTRATE JUDGE
20
21
22
23
24
25
26 7 A dismissal pursuant to a Heck Bar must be without prejudice. See Chico Scrap Metal, Inc. v. Robinson, 560 F.
App’x 650, 652 (9th Cir. 2014) (“The district court erred, though, in dismissing the action with prejudice. We held
in Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam), that Heck-barred § 1983 claims must
27 be dismissed without prejudice so that the plaintiff may ‘reassert his claims if he ever succeeds in invalidating his
28 conviction.’ ”); Matthews v. Craven, 485 F. App’x 893, 894 (9th Cir. 2012) (same).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10043965. Public record. Not legal advice.