Rivers v. San Diego County

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 MELVIN WARREN RIVERS, Case No.: 3:20-cv-0792-GPC-AGS

aka Juice Lee

12

Booking No. 45526-298, ORDER DISMISSING FIRST

13 AMENDED COMPLAINT FOR

Plaintiff,

FAILING TO STATE A CLAIM

14

vs. PURSUANT TO 28 U.S.C. § 1915(e)(2)

15 AND 28 U.S.C. §§ 1915A(b)

16

COUNTY OF SAN DIEGO;

17 ALESSANDRA SERANO

VINCENT BALES; WILLIAM

18

LANSDOWNE,

19 Defendants.

20

21

22

23 I. Procedural History

24 On April 27, 2020, Melvin Warren Rivers, aka “Juice Lee,” (“Plaintiff”),

25 proceeding pro se, currently incarcerated at the Federal Correctional Institution (“FCI”)

26 located in Mendota, California, filed this civil action. See Compl., ECF No. 1. Plaintiff

27 purported to bring this action pursuant to 42 U.S.C. § 1983. (Id.) Because Plaintiff also

28 sought relief against federal actors, the Court liberally construed those claims as arising

1 under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

2 U.S. 388 (1971). Bivens is the “federal analogue” to § 1983. Hartman v. Moore, 547 U.S.

3 250, 254, 255 n.2 (2006).

4 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the

5 time of filing, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

6 to 28 U.S.C. § 1915(a) (ECF No. 3).

7 The Court GRANTED Plaintiff’s Motion to Proceed IFP and sua sponte

8 DISMISSED his Complaint for failing to state a claim and for seeking monetary damages

9 against immune defendants pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C.§ 1915A(b).

10 (ECF No. 4.) On August 14, 2020, Plaintiff filed his First Amended Complaint (“FAC”)

11 pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”) (ECF No.

12 5).

13 II. Sua Sponte Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

14 A. Standard of Review

15 As the Court previously informed Plaintiff, notwithstanding his IFP status or the

16 payment of any partial filing fees, the Prison Litigation Reform Act (“PLRA”) also

17 obligates the Court to review complaints filed by all persons proceeding IFP and by

18 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of,

19 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or

20 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as

21 practicable after docketing,” and ideally before the service of process upon any

22 Defendant. See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the Court

23 must sua sponte dismiss complaints, or any portions thereof, which are frivolous,

24 malicious, fail to state a claim, or which seek damages from defendants who are immune.

25 See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2));

26 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

27 § 1915A(b)). “The purpose of § 1915[] is to ‘ensure that the targets of frivolous or

28 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

1 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

2 680, 681 (7th Cir. 2012)).

3 All complaints must contain “a short and plain statement of the claim showing that

4 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

5 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

6 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

7 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

8 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

9 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

10 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

11 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

12 “When there are well-pleaded factual allegations, a court should assume their

13 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

14 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

15 (“[W]hen determining whether a complaint states a claim, a court must accept as true all

16 allegations of material fact and must construe those facts in the light most favorable to

17 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

18 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).

19 While the court “ha[s] an obligation where the petitioner is pro se, particularly in

20 civil rights cases, to construe the pleadings liberally and to afford the petitioner the

21 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing

22 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential

23 elements of claims that were not initially pled.” Ivey v. Board of Regents of the University

24 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

25 “Courts must consider the complaint in its entirety,” including “documents

26 incorporated into the complaint by reference” to be part of the pleading when

27 determining whether the plaintiff has stated a claim upon which relief may be granted.

28 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P.

1 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”);

2 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

3 B. Plaintiff’s Allegations

4 Plaintiff is a “known hip hop artist who performs under the rap moniker ‘Juice

5 Lee’.” (FAC at 1.) Plaintiff alleges Defendant Bales, a former San Diego Police Officer,

6 and Defendant Lansdowne, former Chief of San Diego Police Officer, “claimed falsely in

7 numerous public documents that Plaintiff knowingly engaged in legal activity with a

8 minor.” (Id.) Plaintiff claims Bales and Lansdowne had two “interviews with the minor

9 proving the opposite.” (Id. at 2.) Plaintiff alleges they “fabricated sworn affidavits” that

10 “contradict[ed] the alleged victim’s affidavit.” (Id.) Plaintiff claims Lansdowne

11 “committed gross negligence in not supervising or training Detective Bales in ethics,

12 anti-systemic racism and anti-police misconduct.” (Id.)

13 Plaintiff alleges the San Diego Police Department is the “enterprise” and “shares

14 liability for all their employees/members of the San Diego Police Department.” (Id.)

15 Plaintiff states he “does not seek damages based on an alleged unlawful criminal

16 conviction but damages to his music career financially.” (Id.) Plaintiff claims Bales

17 “lied in a sworn affidavit committing perjury, gross negligence [and] fraud in USA v.

18 Rivers, S.D. Cal. Crim. Case No. 3:13-cr-03954-BEN.” (Id.)

19 Plaintiff seeks $15,000,000 in punitive damages and unspecified “financial loss”

20 due to inability to “fulfill employment contracts or pursue employment opportunities

21 while unjustly incarcerated.” (Id.)

22 C. Statute of Limitations

23 “A claim may be dismissed [for failing to state a claim] on the ground that it is

24 barred by the applicable statute of limitations only when ‘the running of the statute is

25 apparent on the face of the complaint.’” Von Saher v. Norton Simon Museum of Art at

26 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank,

27 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint cannot be dismissed unless it appears

28 beyond doubt that the plaintiff can prove no set of facts that would establish the

1 timeliness of the claim.’” Id. (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206

2 (9th Cir. 1995)); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir.

3 1993) (where the running of the statute of limitations is apparent on the face of a

4 complaint, dismissal for failure to state a claim is proper, so long as Plaintiff is provided

5 an opportunity to amend in order to allege facts which, if proved, might support tolling);

6 see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764,

7 788 (9th Cir. 2000) (court may raise the defense of statute of limitations sua sponte).

8 Plaintiff’s entire action is brought pursuant to RICO. (See FAC at 1-2.)

9 RICO provides for a private cause of action to “[a]ny person injured in his business

10 or property by reason of a violation of section 1962 of this chapter.” 18 U.S.C.

11 § 1964(c). To establish liability under RICO, a plaintiff must demonstrate: (1) conduct

12 (2) of an enterprise (3) through a pattern; (4) of racketeering activity (5) causing injury to

13 business and property. Sanford v. Memberworks, Inc., 625 F.3d 550, 557-559 (9th Cir.

14 2010).

15 The RICO statute does not contain its own statute of limitations. However, the

16 Supreme Court adopted a four-year statute of limitations for civil RICO claims. See

17 Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156 (1987). The

18 Ninth Circuit has followed the “injury discovery” rule for determining when the statute of

19 limitations begins to run in civil RICO actions. See Grimmett v. Brown, 75 F.3d 506, 511

20 (9th Cir. 1996). “Under this rule, ‘the civil RICO limitation period begins to run when a

21 plaintiff knows or should know of the injury that underlies his cause of action.’” Pincay

22 v. Andrews, 238 F.3d 1106, 1109 (9th Cir. 2001) (quoting Grimmett, 75 F.3d at 510).

23 Here, Plaintiff alleges that Defendants engaged in “racketeering activity” by

24 authoring “fabricated affidavits” in his 2013 criminal matter. (FAC at 1-2.) A court

25 “‘may take notice of proceedings in other courts, both within and without the federal

26 judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v.

27 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285

28 F.3d 801, 803 n.2 (9th Cir. 2002)). Thus, the Court takes judicial notice of USA v.

1 || Rivers, S.D. Cal. Crim. Case No. 3:13-cr-03954-BEN (“Rivers I’) which is the matter

2 || Plaintiff alleges Defendant Bales “lied in a sworn affidavit committing perjury, gross

3 ||negligence [and] fraud” giving rise to his purported RICO action. (FAC at 2.) In that

4 || matter, the affidavit written by Defendant Bales was filed in the Court on September 26,

5 ||2013 under seal but later unsealed on September 30, 2013. See Rivers I, ECF No. 1.

6 Thus, the limitation period for Plaintiff's RICO action began to run when Plaintiff

7 || discovered the filing of the alleged “fabricated” affidavit on September 30, 2013, nearly

8 ||seven years ago. Thus, these claims fall far outside the applicable four-year statute of

9 || limitations for a RICO action. See Pincay, 238 F.3d at 1109.

10 Accordingly, the Court finds that because it is clear from the face of Plaintiff's

11 || FAC, as it is currently alleged, that his claims against all Defendants are barred by the

12 || statute of limitations, those claims and Defendants are subject to sua sponte dismissal for

13 || failing to state a claim upon which relief may be granted. See 28 U.S.C.

14 1915(e)(2)(B)Gi); § 1915A(b)C1).

15 Conclusion and Order

16 For the reasons discussed, the Court:

17 1) DISMISSES this civil action without further leave to amend for failing to

18 || state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1);

19 2) CERTIFIES that an IFP appeal would not be taken in good faith pursuant

20 |/to 28 U.S.C. § 1915(a)(3), and

21 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and

22 close the file.

23 IT ISSO ORDERED. 7 aaho Ox

24 Dated: September 2, 2020 Hon. Gonzalo P. Curiel

25 United States District Judge

26

27

28