Thomas v. Smith
| Decision Date | 25 October 2012 |
| Docket Number | Case No. CV 09-3074-GHK (OP) |
| Court | U.S. District Court — Central District of California |
| Parties | MICHAEL DARNELL THOMAS, Plaintiff, v. JAMES H. SMITH, III, et al., Defendants |
DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO
AMEND
On or about February 16, 2007, Michael Darnell Thomas ("Plaintiff"), was arrested for a cocaine-related crime. On November 1, 2007, the United States Attorney's Office filed a criminal indictment charging Plaintiff with two criminal counts: Count 1, conspiracy to distribute cocaine and marijuana (21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B) and 841(b)(1)(D)); and Count 3, knowingly and intentionally possessing with the intent to distribute a mixture or substance containing a detectable amount of cocaine (21 U.S.C. §§ 841(a)(1) and (b)(1)(B)). (CR 07-1213-MMM ECF No. 1.)
On September 3, 2008, Plaintiff entered into a plea agreement with the United States. (Id. ECF No. 222.) On November 17, 2008, Plaintiff entered aguilty plea to Count 1 of the Indictment pursuant to the plea agreement.1 (Id. ECF No. 234.) As part of the plea agreement, Plaintiff gave up his right to pursue any Fourth or Fifth Amendment claims and any other pretrial motions that were or could have been filed. (Id. at 5, 6.)
On or about March 23, 2009, the Court granted Plaintiff's request for new counsel, and appointed Dale Rubin to replace Errol Stambler. (Id. ECF No. 277.) The Court also vacated the sentencing hearing and instructed Plaintiff to advise the Court how he wished to proceed. (Id.)
Meanwhile, on May 1, 2009, Plaintiff filed a pro se Civil Rights Complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) ("Complaint"), after having paid the requisite filing fee. (ECF No. 1.) In the Complaint, Plaintiff named as Defendants Federal Bureau of Investigation ("FBI") Special Agent James Smith, III, Plaintiff's former criminal attorney Errol Stambler, and Sprint Telecommunications. Plaintiff sought damages. (CV 09-3074 ECF No. 1.)
Although service of the Complaint was never authorized or ordered, on May 25, 2009, Defendant Stambler filed a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Id. ECF No. 7.) On June 18, 2009, Plaintiff filed an Opposition to the Motion to Dismiss. (Id. ECF No. 12.)
On August 17, 2010, the Court stayed the current action, including Defendant Stambler's Motion to Dismiss, pending resolution of Plaintiff's criminal case. The parties were ordered to inform the Court within seven days ofthe entry of a judgment of conviction or the entry of an order dismissing the pending criminal charges against Plaintiff. (Id. ECF No. 45.)
The Court's independent review of its computerized case management system, CM/ECF, revealed that on September 10, 2012, Plaintiff was sentenced on Count 1 of the Indictment to the custody of the Bureau of Prisons for a term of ninety-two months. (CR 07-1213 ECF No. 550.)
On September 17, 2012, Plaintiff filed a Motion for Leave to File a First Amended Complaint ("FAC"), along with a proposed FAC.2 (CV 09-3074 ECF No. 47.)
On October 24, 2012, the Court lifted the stay of the current proceedings in light of Plaintiff's sentencing in the criminal case, granted Plaintiff's Motion for Leave to file the FAC, ordered the filing of the FAC as the operative pleading, and denied Defendant Stambler's Motion to Dismiss as moot. (ECF Nos. 48, 49.)
For the reasons set forth below, the Court dismisses the FAC with leave to amend.
Plaintiff's claims arise out of the investigation that resulted in his federal criminal prosecution in this District, case number CR 07-1213-MMM. In the FAC, Plaintiff alleges constitutional violations of the First and Fourteenth Amendments, and statutory violations of the Stored Communications Act (18 U.S.C. §§ 2701-2711) and the Pen Register Statute (18 U.S.C. § 3121), against Defendants Smith and Sprint PCS based on the telephonic surveillance conducted on his telephone on February 14-16, 2007. (FAC at 5.) Plaintiff alleges that the disclosure of the results of the telephonic surveillance revealed his whereabouts during the two day time period which in turn led to his wife's discovery of an extra-marital affair he was having. The discovery of the affair resulted in his divorce. As a result, Plaintiff alleges that the disclosure of the information violated his "right of association and right to intimate relationships." (Id. at 4-6.)
Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA"). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc); 28 U.S.C. § 1915A(b) ().3
PLRA review for failure to state a claim applies the same standard applied in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A Rule 12(b)(6) motion tests the formal sufficiency of a statement of claim for relief. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A plaintiff's allegations of material fact must be taken as true and construed in the light most favorable to the plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Since Plaintiff is appearing pro se, the Court must construe the allegations of thecomplaint liberally and must afford Plaintiff the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
Under Rule 8(a)(2) of the Federal Rule of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has explained the pleading requirements of Rule 8(a)(2) and the requirements for surviving a Rule 12(b)(6) motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009).
With respect to a plaintiff's pleading burden, the Supreme Court held that while a complaint does not need detailed factual allegations, Bell Atl., 550 U.S. at 553-56 (citations and footnote omitted), abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) (); see also Iqbal, 129 S. Ct. at 1949; Erickson, 551 U.S. at 93; Moss, 572 F.3d at 968.
In order to comply with the requirements of Rule 8(a)(2) and survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl., 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for themisconduct alleged." Id. (citing Bell Atl., 550 U.S. at 556). This plausibility standard is not a probability requirement, but does ask for more than mere possibility; if a complaint pleads facts "merely consistent with" a theory of liability, it falls short of "the line between possibility and plausibility." Id. (quoting Bell Atl., 550 U.S. at 557).
The Supreme Court has set out a two-pronged approach for reviewing a possible failure to state a claim. Id. at 1949-50; see also Moss, 572 F.3d at 969-70. First, the reviewing court may identify those statements in a complaint that are actually conclusions, even if presented as factual allegations. Id. Such conclusory statements (unlike proper factual allegations) are not entitled to a presumption of truth. Id. In this context it is the conclusory nature of the statements (rather than any fanciful or nonsensical nature) "that disentitles them to the presumption of truth." Id. at 1951. Second, the reviewing court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these factual allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 1950; see also Moss, 572 F.3d at 969-70.
The Court is not concerned at this stage with "whether a plaintiff will ultimately prevail" but with whether he is entitled to offer evidence to support his claims. See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 960 (9th Cir. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). However, a complaint consisting of unintelligible, narrative ramblings fails to state a claim for relief. See McHenry v. Renne, 84 F.3d 1172, 1176-79 (9th Cir. 1996); see also Awala v. Roberts, No....
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