Opinion
No. 2:17-cv-2650 JAM AC P
12-11-2018
JON HUMES, Plaintiff, v. ELISTON, et al., Defendants.
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a Sacramento County Jail inmate proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. By order filed September 20, 2018, the court dismissed plaintiff's original complaint with leave to file an amended complaint limited to an excessive force claim against defendant Sacramento County Sheriff's Officer Eliston. See ECF No. 20. The undersigned recommended the dismissal of several putative defendants, and the recommendation was adopted by the district judge on November 5, 2018. ECF No. 25.
Plaintiff timely filed a First Amended Complaint (FAC), ECF No. 22, which the undersigned now screens pursuant to 28 U.S.C. 1915A, based on the legal standards previously identified by the court, see ECF No. 20 at 2-3. The court finds that the FAC states a cognizable claim against defendant Eliston for the use of excessive force, based on the alleged circumstances of plaintiff's arrest on June 10, 2016. See ECF No. 22 at 3-5. For the reasons previously stated, this excessive force claim appears to be premised on the Due Process Clause of the Fourteenth Amendment. See ECF No. 20 at 3-4. However, for the reasons previously addressed by the court in plaintiff's myriad cases, plaintiff's allegations do not state a cognizable Fourth Amendment claim.
See e.g. ECF No. 20 at 5 (noting the "more than forty other cases plaintiff has filed in this Court . . . challeng[ing] his arrest and the underlying warrant").
Nor does the FAC state a cognizable claim against newly named defendant Xavier Becerra, the California Attorney General. The FAC fails to make any specific charging allegations against Becerra, other than his alleged failure to enforce Proposition 57 (the "California Parole for Non-Violent Criminals" initiative passed in 2016). See ECF No. 22 at 6. The Attorney General is immune from suit under the circumstances challenged by plaintiff. The California Attorney General is absolutely immune for Section 1983 damages liability for initiating prosecutions and presenting the State's case in defense. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Moreover, this immunity extends to the Attorney General's administrative responsibilities. See Cousins v. Lockyer, 568 F.3d 1063, 1069 (9th Cir. 2009).
Finally, the court has reviewed plaintiff's several miscellaneous filings (ECF Nos. 23, 24 & 26) and finds none relevant to the factual or legal issues in this case. Plaintiff is admonished to refrain from filing documents in this action unless they are authorized by Federal Rules of Civil Procedure or directed by the court. The filing of further irrelevant and frivolous documents in this action may result in the imposition of sanctions. See Local Rule 110 ("Failure . . . of a party to comply with these [Local] Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.").
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:
1. This action shall proceed on plaintiff's First Amended Complaint filed October 5, 2018 (ECF No. 22), on plaintiff's excessive force claim against defendant Eliston, for whom service of process is appropriate.
2. The Clerk of Court is directed to send plaintiff one USM-285 form, one summons, an instruction sheet, and one copy of the endorsed FAC.
3. Within thirty (30) days after service of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court:
a. The completed Notice of Submission of Documents;
b. One completed summons;
c. One completed USM-285 form; and
d. Two copies of the endorsed FAC (the Marshal will retain one copy).
4. Plaintiff shall not attempt service on any defendant or request a waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. Failure of plaintiff to timely comply with this order will result in the dismissal of this action without prejudice.
Additionally, for the reasons set forth above, IT IS HEREBY RECOMMENDED that putative defendant California Attorney General Xavier Becerra be dismissed from this action with prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: December 11, 2018
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff submits the following documents in compliance with the court's order filed __________:
___ one completed summons form
___ one completed USM-285 form
___ two copies of the endorsed FAC __________
Date
/s/_________
Plaintiff