Clay v. San Diego Police Department

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 KENNETH WAYNE CLAY, Case No.: 3:23-cv-00360-JAH-MMP

Inmate #1225729,

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ORDER DISMISSING AMENDED

Plaintiff,

12 COMPLAINT [ECF No. 10]

vs. PURSUANT TO 28 U.S.C.

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§ 1915(e)(2)(B) AND § 1915A(b)

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SAN DIEGO POLICE DEPARTMENT;

15 EL CAJON POLICE DEPARTMENT;

STATE OF CALIFORNIA; EDWIN C.

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MILLER; PAUL J. PFINGST,

17 Defendants.

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19 On February 22, 2023, Kenneth Wayne Clay (“Plaintiff” or “Clay”) filed a civil

20 rights action pursuant to 42 U.S.C. § 1983, a Motion to Proceed to Proceed In Forma

21 Pauperis (“IFP”), and a Motion to Appoint Counsel. See ECF Nos. 1–4. The Court granted

22 Clay’s IFP Motion, denied his Motion to Appoint Counsel, and dismissed his Complaint

23 without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and

24 § 1915A(b). ECF No. 6. Clay was given forty-five (45) days within which to file an

25 Amended Complaint, and he did so on May 30, 2023. Id.; ECF No. 10. Clay then filed a

26 Supplemental Complaint on July 3, 2023. ECF No. 11

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1 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

2 A. Legal Standard

3 As with his original Complaint, Clay’s Amended Complaint requires a pre-answer

4 screening pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the

5 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

6 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

7 immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing

8 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

9 (discussing 28 U.S.C. § 1915A(b)).

10 “The standard for determining whether a plaintiff has failed to state a claim upon

11 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

12 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

13 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

14 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

15 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

16 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

17 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

18 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. Detailed

19 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of

20 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

21 “Section 1983 creates a private right of action against individuals who, acting under

22 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

23 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

24 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

25 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations

26 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

27 secured by the Constitution and laws of the United States, and (2) that the deprivation was

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1 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

2 F.3d 1128, 1138 (9th Cir. 2012).

3 B. Discussion

4 Clay makes essentially the same allegations in his Amended Complaint as he did in

5 his original Complaint, claiming that the Defendants violated his due process and Fourth

6 Amendment rights when they unlawfully arrested him. Am. Compl., ECF No. 10 at 4–5.

7 He also alleges the charges related to that arrest were dismissed and the Defendants have

8 violated his due process rights by failing to have the arrest removed from his NCIC

9 (National Crime Information Center) readout. Id. at 3–5.

10 The Court dismissed Clay’s original Complaint in part on the grounds that it was

11 barred by Heck v. Humphrey, 512 U.S. 477 (1994), which held that a § 1983 claim which

12 “necessarily implies the invalidity” of an underlying criminal judgment is not cognizable

13 until the criminal judgment has been reversed, set aside, expunged, invalidated, or called

14 into question on federal habeas review. Id. at 486–87. The Court explained that if Clay had

15 been convicted of the charges stemming from his arrest, his § 1983 claims would be barred

16 by Heck to the extent they may “necessarily imply the invalidity” of his criminal judgment.

17 See Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (holding wrongful arrest,

18 malicious prosecution, and conspiracy to bring false charges barred by Heck); Cabrera v.

19 City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding false arrest and

20 imprisonment claims were Heck-barred until conviction is invalidated). Clay has now

21 provided the Court with his NCIC printout, which indicates he was arrested on March 30,

22 1995, he was “release[d] due to delay,” and there appears to be no conviction associated

23 with that arrest. See ECF No. 7 at 6. Accordingly, his claims may not be subject to the Heck

24 bar.

25 Clay’s Amended Complaint must be dismissed for other reasons, however. “A claim

26 may be dismissed [for failing to state a claim] on the ground that it is barred by the

27 applicable statute of limitations only when ‘the running of the statute is apparent on the

28 face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d

1 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th

2 Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond doubt that the

3 plaintiff can prove no set of facts that would establish the timeliness of the claim.’” Id.

4 (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also

5 Cervantes v. City of San Diego, 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running

6 of the statute of limitations is apparent on the face of a complaint, dismissal for failure to

7 state a claim is proper, so long as Plaintiff is provided an opportunity to amend in order to

8 allege facts which, if proved, might support tolling); see also Tahoe-Sierra Pres. Council,

9 Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) (court may raise

10 the defense of statute of limitations sua sponte), overruled on other grounds by Gonzalez

11 v. Arizona, 677 F.3d 383, 389 (9th Cir. 2011) (en banc); Hughes v. Lott, 350 F.3d 1157,

12 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of

13 prisoner’s time-barred complaint).

14 Because section 1983 contains no specific statute of limitation, federal courts apply

15 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393

16 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);

17 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). California’s current statute of

18 limitations for personal injury actions is two years. Jones, 393 F.3d at 927 (citing CAL. CIV.

19 PROC. CODE § 335.1). Prior to 2003, however, the statute of limitations was one year. See

20 Jones, 393 F.3d at 927. The law of the forum state also governs tolling. Wallace v. Kato,

21 549 U.S. 384, 394 (2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones,

22 393 F.3d at 927 (noting that in actions where the federal court borrows the state statute of

23 limitation, the federal court also borrows all applicable provisions for tolling the limitations

24 period found in state law). Under California law, the statute of limitations for prisoners

25 serving less than a life sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a);

26 Johnson v. California, 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543

27 U.S. 499 (2005). Accordingly, the effective statute of limitations for most California

28 prisoners is four years (two year limitations period plus two years statutory tolling). For

1 claims which accrued before 2003, however, the effective statute of limitations is three

2 years (one year limitations period plus two years statutory tolling).

3 Unlike the length of the limitations period, however, “the accrual date of a § 1983

4 cause of action is a question of federal law that is not resolved by reference to state law.”

5 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a § 1983

6 cause of action accrues). “Under the traditional rule of accrual . . . the tort cause of action

7 accrues, and the statute of limitation begins to run, when the wrongful act or omission

8 results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder federal law, a

9 claim accrues when the plaintiff knows or has reason to know of the injury which is the

10 basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174 F.3d 987, 991

11 (9th Cir. 1999). Accordingly, Clay had three years from the date of the arrest to file his

12 federal lawsuit, which means it should have been filed at the latest on March 29, 1998. He

13 filed it on February 21, 2023. ECF No. 1.

14 Clay’s wrongful arrest claim could be considered timely if he alleges facts sufficient

15 to show the limitations period may be equitably tolled. See Cervantes, 5 F.3d at 1276-77.

16 Generally, federal courts also apply the forum state’s law regarding equitable tolling. Fink,

17 192 F.3d at 914; Bacon v. City of Los Angeles, 843 F.2d 372, 374 (9th Cir.1988). Under

18 California law, Plaintiff must meet three conditions to equitably toll the statute of

19 limitations: (1) he must have diligently pursued his claim; (2) his situation must be the

20 product of forces beyond his control; and (3) Defendants must not be prejudiced by the

21 application of equitable tolling. See Hull v. Central Pathology Serv. Med. Clinic, 28 Cal.

22 App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of California, 21 Cal.3d 313,

23 316-17 (Cal. 1978); Fink, 192 F.3d at 916.

24 Clay has not pled any facts which would explain why he did not diligently pursue

25 this claim or what “forces beyond his control” prevented him from filing this action earlier.

26 Thus, he has not plausibly alleged a claim for equitable tolling. See Cervantes, 5 F.3d at

27 1277; Iqbal, 556 U.S. at 679; Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993)

28 (plaintiff carries the burden to plead facts which would give rise to equitable tolling); see

1 also Kleinhammer v. City of Paso Robles, 385 Fed. Appx. 642, 643 (9th Cir. 2010).

2 Accordingly, it is clear from the face of the Amended Complaint that Clay’s claim that his

3 March 30, 1995 arrest was unlawful and violated his Fourth Amendment rights is barred

4 by the statute of limitations.

5 Clay’s claim that Defendants improperly failed to remove his March 30, 1995 arrest

6 from his NCIC readout, in violation of his due process rights may not be barred by the

7 statute of limitations, however, because it is unclear when any Defendant committed the

8 wrongful act. But, even if this claim is not barred by the statute of limitations, Clay has not

9 stated a plausible § 1983 claim.

10 First, Clay’s claims against the State of California are barred by the Eleventh

11 Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can be

12 no doubt . . . that [a] suit against the State and its Board of Corrections is barred by the

13 Eleventh Amendment, unless [the State] has consented to the filing of such a suit.”).

14 Second, Clay has not plausibly alleged a due process claim against Defendants

15 Miller and Pfingst because he has not explained what actions those defendants did or did

16 not take which violated his due process rights. “Causation is, of course, a required element

17 of a § 1983 claim.” Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248

18 (9th Cir. 1999), as amended (Dec. 9, 1999) (citing Oviatt v. Pearce, 954 F.2d 1470, 1474

19 (9th Cir. 1992). To state a § 1983 claim, a plaintiff must allege how “each Government-

20 official defendant, through the official’s own individual actions” violated his constitutional

21 rights. See Iqbal, 556 U.S. at 676–77. Allegations “must be individualized and focus on

22 the duties and responsibilities of each individual defendant whose acts or omissions are

23 alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633

24 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). The pleadings must

25 show each defendant “[performed] an affirmative act, participate[d] in another’s

26 affirmative acts, or omit[ted] to perform an act which he is legally required to do that causes

27 the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743

28 (9th Cir. 1978).

1 Here, Clay does not name any specific actions or omissions by Miller or Pfingst

2 which plausibly show they violated his constitutional rights. He simply states that the

3 charges which resulted from his March 30, 1995 were dismissed but improperly remain on

4 his NCIC readout. These are broad and conclusory allegations which do not explain how

5 any individual Defendant violated his Constitutional rights. Therefore, his Complaint fails

6 to state a plausible claim for relief against Defendants Pfingst and Miller under section

7 1983. Iqbal, 556 U.S. at 678.

8 Further, although the San Diego Police Department and the El Cajon Police

9 Department are managed by and/or are departments of the County of San Diego and are

10 subject to suit as “persons” under § 1983, Duarte v. City of Stockton, 60 F.4th 566, 573

11 (9th Cir. 2023), “a local government [and its entities] may not be sued under § 1983 for an

12 injury inflicted solely by its employees or agents.” Monell v. Dep’t of Social Servs., 436

13 U.S. 658, 694 (1978). To bring a § 1983 claim against these Defendants, Clay must plead

14 that the “municipality’s policy or custom caused a violation of [his] constitutional rights.”

15 Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). “A custom or practice can be

16 inferred from widespread practices or evidence of repeated constitutional violations for

17 which the errant municipal officers were not discharged or reprimanded.” Hunter v. County

18 of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011). “Allegations of Monell liability will

19 be sufficient for purposes of Rule 12(b)(6) where they: (1) identify the challenged

20 policy/custom; (2) explain how the policy/custom is deficient; (3) explain how the

21 policy/custom caused the plaintiff harm; and (4) . . . show how the deficiency involved was

22 obvious and the constitutional injury was likely to occur.” McDaniel v. Diaz, No. 1:20-cv-

23 00856-NONE-SAB, 2020 WL 7425348, at *22 (E.D. Cal. Dec. 19, 2020) (quoting Lucas

24 v. City of Visalia, No. 1:09-CV-1015AWIDLB, 2010 WL 1444667, at *4 (E.D. Cal. Apr.

25 12, 2010) (citation omitted); see also Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741

26 (9th Cir. 2020).

27 Clay does not claim San Diego County has a policy or custom of failing or refusing

28 to correct the NCIC readouts of arrestees. Nor has he pled sufficient facts to plausibly

1 allege San Diego County has any such custom or practice because he has not identified any

2 specific acts by any individual defendant which violated his constitutional rights.

3 Accordingly, he has failed to state a claim against Defendants San Diego Police

4 Department and El Cajon Police Department. Iqbal, 556 U.S. at 678.

5 II. Conclusion and Order

6 Based on the foregoing, the Court:

7 1) DISMISSES Plaintiff’s Complaint as to all Defendants sua sponte for failing

8 to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)

9 and § 1915A(b)(1).

10 2) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

11 which to file an Second Amended Complaint correcting all the deficiencies of pleading

12 identified by the Court in this Order. Plaintiff is advised his Second Amended Complaint

13 must be complete in itself without reference to his original pleading. Defendants not named

14 and any claims not re-alleged in the Second Amended Complaint will be considered

15 waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n

16 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928

17 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged

18 in an amended pleading may be “considered waived if not repled.”). Plaintiff’s Second

19 Amended Complaint must be entitled as his “Second Amended Complaint,” contain S.D.

20 Cal. Civil Case No. 23-cv-00360-JAH-MMP in its caption, and comply both with Fed. R.

21 Civ. P. 8 and with S.D. Cal. CivLR 8.2.a.

22 In order to assist Plaintiff in complying with these requirements, the Court further

23 DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form

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1 ||Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use should he choose to

2 amend.

3 IT IS SO ORDERED. ! | M&S

4 || Dated: August 2, 2023

5 He h. John A. Houston

fited States District Judge

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