Booza

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MICHAEL D. CAREY, No. 2:24-cv-1717 AC PC

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 GREGORY BOOZA, et al.,

15 Defendants.

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17 This case was initially filed on June 17, 2024. ECF No. 1. Plaintiff is a state prisoner

18 proceeding in this matter pro se, and pre-trial proceedings are accordingly referred to the

19 undersigned pursuant to Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). A First Amended

20 Complaint was filed on July 26, 2024. ECF No. 9. Plaintiff was given permission to proceed in

21 forma pauperis on October 30, 2024, and his initial complaint was rejected for service pursuant to

22 the screening process that accompanies IFP status. ECF No. 13. Plaintiff was granted leave to

23 file a Second Amended Complaint, which he filed on March 14, 2025. ECF No. 20. The

24 undersigned found the Second Amended Complaint sufficient for service as to the sole defendant,

25 Gregory Booza. ECF No. 21.

26 Defendant Booza moves to dismiss the Second Amended Complaint. ECF No. 28.

27 Plaintiff opposes the motion. ECF No. 41. Defendant Booza submitted a reply. ECF No. 42.

28 The undersigned recommends the motion to dismiss be DENIED.

1 I. Background

2 The Second Amended Complaint alleges as follows. ECF No. 20. Defendant Gregory

3 Booza is a Detective for the Modesto Police Department. ECF No. 20 at 3-4. On March 26,

4 2024, Detective Booza filed a vehicle report for a DOJ stop. Id. at 4. The initial report was for a

5 stolen car with a white male suspect. Id. On March 27, 2024, plaintiff was pulled over while

6 driving his car in Elk Grove, California by Elk Grove Police Officer Juarez. Id. at 4-5. Officer

7 Juarez contacted Detective Booza, at which point Detective Booza informed Officer Juarez that

8 the Modesto Police Department had probable cause to arrest plaintiff because he was allegedly

9 involved in two armed robberies, and was wearing the exact same clothes as Detective Booza’s

10 suspect. Id. at 5.

11 Plaintiff is informed and believes that a valid arrest or search warrant was never issued in

12 his name by a judge. Id. Plaintiff and his vehicle were subjected to a warrantless search by the

13 Elk Grove Police Department. Id. Plaintiff was subsequently arrested for two robberies in

14 Modesto, California. Id. at 6. On May 13, 2024, at the second day of plaintiff’s preliminary

15 hearing, Detective Booza, under oath, changed his statement that was made on the night of

16 plaintiff’s arrest by stating that due to the video from the robbery being blurry, he no longer

17 believed that plaintiff’s clothes matched the clothes of his suspect, even though the matching

18 clothes was the justification for plaintiff’s arrest. Id. 6. Detective Booza also stated that looking

19 at the video, he couldn’t identify who the person was, which plaintiff alleges eliminates the theory

20 that he resembles the armed robbery suspect. Id. at 7.

21 The Second Amended Complaint asserts that Detective Booza violated plaintiff’s Fourth

22 Amendment protections against unreasonable search and seizure, and unlawful arrest. Id. at 7.

23 Plaintiff seeks declaratory relief and monetary damages. Id. at 8.

24 II. Motion to Dismiss

25 Defendants move to dismiss this case in its entirety, asserting that plaintiff’s Second

26 Amended Complaint does not state a claim upon which relief can be granted. ECF No. 28. “The

27 purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the

28 complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal

1 can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged

2 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.

3 1990).

4 In order to survive dismissal for failure to state a claim, a complaint must contain more

5 than a “formulaic recitation of the elements of a cause of action;” it must contain factual

6 allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

7 Twombly, 550 U.S. 544, 555 (2007). It is insufficient for the pleading to contain a statement of

8 facts that “merely creates a suspicion” that the pleader might have a legally cognizable right of

9 action. Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35

10 (3d ed. 2004)). Rather, the complaint “must contain sufficient factual matter, accepted as true, to

11 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

12 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

13 factual content that allows the court to draw the reasonable inference that the defendant is liable

14 for the misconduct alleged.” Id.

15 In reviewing a complaint under this standard, the court “must accept as true all of the

16 factual allegations contained in the complaint,” construe those allegations in the light most

17 favorable to the plaintiff and resolve all doubts in the plaintiff’s favor. See Erickson v. Pardus,

18 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,

19 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th

20 Cir. 2010). However, the court need not accept as true legal conclusions cast in the form of

21 factual allegations, or allegations that contradict matters properly subject to judicial notice. See

22 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State

23 Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001). t

24 Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

25 Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

26 only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

27 of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.

28 2014). The court’s liberal interpretation of a pro se complaint, however, may not supply essential

1 elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d

2 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). A pro se

3 litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend,

4 unless the complaint’s deficiencies could not be cured by amendment. See Noll v. Carlson, 809

5 F.2d 1446, 1448 (9th Cir. 1987).

6 III. Analysis

7 Each of plaintiff’s claims is brought pursuant to 42 U.S.C. § 1983, which creates liability

8 for any person who, “under color of” state law, subjects any person “to the deprivation of any

9 rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party

10 injured in an action at law.” “To state a claim under 42 U.S.C. § 1983, the plaintiff must allege

11 two elements: (1) that a right secured by the Constitution or laws of the United States was

12 violated; and (2) that the alleged violation was committed by a person acting under color of state

13 law.” Campbell v. Washington Dep’t of Soc. Servs., 671 F.3d 837, 842 n.5 (9th Cir. 2011).

14 “To plausibly state a claim under Section 1983, a plaintiff must specifically identify who

15 caused that alleged violation: ‘[t]he inquiry into causation must be individualized to focus on the

16 duties and responsibilities of each individual defendant whose acts or omissions are alleged to

17 have caused a constitutional deprivation.’” Manlove v. County of San Diego, 759 F.Supp.3d

18 1057, 1064 (S.D. Cal. 2024) (quoting Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)). “A

19 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

20 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform

21 an act which he is legally required to do that causes the deprivation of which complaint is made.”

22 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

23 Vague and conclusory allegations concerning the involvement of official personnel in

24 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th

25 Cir. 1982). However, “personal participation is not the only predicate for section 1983 liability.

26 Anyone who ‘causes’ any citizen to be subjected to a constitutional deprivation is also liable. The

27 requisite causal connection can be established not only by some kind of direct personal

28 participation in the deprivation, but also by setting in motion a series of acts by others which the

1 actor knows or reasonably should know would cause others to inflict the constitutional injury.”

2 Johnson, 588 F.2d at 743–44 (emphasis added).

3 Defendant does not address the merits of plaintiff’s claims but instead contends that

4 “[n]either the factual allegations nor the legal claim here alludes to any significant involvement of

5 Defendant MPD detective Booza in the search, seizure or arrest of Plaintiff in Elk Grove,” noting

6 that the traffic stop, search, and arrest in question were all conducted by Elk Grove Officer

7 Juarez. ECF No. 28 at 6. Defendant’s argument is not persuasive. The Second Amended

8 Complaint clearly indicates that Detective Booza caused the search and arrest by telling Officer

9 Juarez that he had probable cause to arrest plaintiff because plaintiff matched the description of

10 an armed robbery suspect in Modesto, thus “setting in motion” the search and arrest. ECF No. 20

11 at 5. Plaintiff adequately alleged a causal link between Detective Booza and the alleged

12 constitutional violations.

13 Defendant’s only other argument in his motion to dismiss is that he has absolute immunity

14 for testimony given in plaintiff’s criminal trial. The asserted immunity does not apply here.

15 Defendant correctly notes that the Ninth Circuit has made clear that “[a] witness has absolute

16 immunity from liability for civil damages under § 1983 for giving perjured testimony at trial.”

17 Franklin v. Terr, 201 F.3d 1098, 1099 (9th Cir. 2000). Plaintiff, however, does not allege that

18 Detective Booza perjured himself, and none of plaintiff’s claims arise from Detective Booza’s

19 testimony. The Second Amended Complaint only references Detective Booza’s testimony to lend

20 factual support to plaintiff’s allegation that on the night Detective Booza instructed Officer Juarez

21 that there was probable cause to arrest plaintiff for the Modesto robberies, Detective Booza did

22 not actually know whether plaintiff bore any resemblance to the suspect they were pursuing. ECF

23 No. 20 at 6-7. Defendant’s argument is unpersuasive.

24 In his reply brief, defendant briefly asserts for the first time that plaintiff’s Fourth

25 Amendment claims fail on the merits, and that plaintiff’s claims may be barred by Heck v.

26 Humphrey, 512 U.S. 477 (1994) or Younger v. Harris, 401 U.S. 37 (1971). ECF No. 41 at 2. The

27 court will not address these brief and unsupported arguments that were not presented in the

28 motion. The arguments actually presented in defendant’s motion to dismiss are not persuasive,

1 || and accordingly the motion (ECF No. 28) should be DENIED.

2 IV. Conclusion

3 Accordingly, the undersigned recommends that defendants’ motion to dismiss at ECF No.

4 | 28 be DENIED.

5 These findings and recommendations are submitted to the United States District Judge

6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days

7 || after being served with these findings and recommendations, any party may file written

8 | objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a

9 || document should be captioned “Objections to Magistrate Judge’s Findings and

10 || Recommendations.” Failure to file objections within the specified time may waive the right to

11 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

12 | v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

13 | DATED: December 29, 2025

14 Chttien— Clare

ALLISON CLAIRE

Id UNITED STATES MAGISTRATE JUDGE

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