Opinion
Case No. C19-6200 BHS
04-20-2020
JASON ALAN SMITH, Plaintiff, v. SARGEANT GARRITY, Defendants.
ORDER TO SHOW CAUSE
This matter has been referred to Magistrate Judge Theresa Fricke pursuant to 28 U.S.C. 636(b)(1) and Local Rule MJR 3 and 4. Plaintiff Jason Smith has filed an application to proceed in forma pauperis and a proposed complaint. Dkt. 1; Dkt. 1-1. Plaintiff previously filed two actions, which are currently pending in this Court, alleging apparently identical claims arising from the same incident but naming other defendants in addition to defendant Garrity. See Smith v. Bremerton Police Dep't, et al., C19-5479-BHS; Smith v. City of Bremerton, C19-6199-BHS-DWC.
The Court finds that plaintiff has failed to state a viable claim in this proposed complaint; because plaintiff's claims in the instant action arise from identical subject matter as Smith v. Bremerton Police Dep't, et al., C19-5479-BHS, plaintiff is directed to show cause on or before May 22, 2020, why this action should not be dismissed, without prejudice, as duplicative. The Court notes that plaintiff has been directed to amend his complaint in C19-5479, in which he is free to seek to include defendant Garrity as a party. Plaintiff's application to proceed in forma pauperis shall be re-noted for May 22, 2020.
DISCUSSION
The court must dismiss the complaint of an individual seeking to proceed in forma pauperis "at any time if the court determines" that the action: (a) "is frivolous or malicious"; (b) "fails to state a claim on which relief may be granted"' or (c) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).
Proposed Complaint
Plaintiff bases his claims on an November 23, 2018, encounter in a Bremerton business parking lot with two police officers, Officer Ejde (who is not a named defendant) and defendant Sergeant Garrity. Dkt. 1-1, at 5-6. Plaintiff alleges violations of his First Amendment rights, claiming interference with the recording of police misconduct and retaliation for the exercise of plaintiff's free speech. Plaintiff also appears to include a state law claim for negligent supervision.
According to the complaint, plaintiff engaged in a "verbal exchange" with Officer Ejde, which became an "attack on [plaintiff]." Id. at 6, 7. Plaintiff's girlfriend "(Nyki) Jolene" was recording the encounter, presumably at plaintiff's request. Id. at 6.
Plaintiff alleges Sergeant Garrity talked to Ms. Jolene, speaking gibberish and waving his hand in front of Ms. Jolene's camera, which "interfered with" the recording of plaintiff's conversation. Dkt. 1-1, at 6. Plaintiff alleges that Sergeant Garrity is Officer Ejde's supervising officer. During the encounter, he expressed his opinion to Sergeant Garrity that Officer Ejde was "on drugs," based on plaintiff's assessment of Officer's Ejde's behavior and pupils. Plaintiff alleges that Sergeant Garrity failed to "take immediate action to ensure Ejde was no longer a threat."
Plaintiff alleges that when he called to lodge a complaint about the incident, Sergeant Garrity took his call and refused to take the complaint or permit plaintiff to speak with another officer. Dkt. 1-1, at 5. The complaint also appears to allege that in subsequent weeks, Sergeant Garrity was involved with the vandalizing of plaintiff's car and the removal of its brake caliper bolt. Dkt. 1-1 at 6. The complaint alleges no facts to link Sergeant Garrity personally to those events.
Plaintiff's complaint indicate that he has made multiple unsuccessful attempts to secure representation on these claims. Dkt. 1-2, at 2. Plaintiff seeks damages, "retraining" or "counseling" for defendant, and a public apology from defendant to him and his girlfriend. Dkt. 1-1, at 8.
Standard of Review
The court must dismiss the complaint of an individual seeking to proceed in forma pauperis "at any time if the court determines" that the action: (a) "is frivolous or malicious"; (b) "fails to state a claim on which relief may be granted"' or (c) "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a), (b). A complaint is frivolous when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.3d 1221, 1228 (9th Cir. 1984).
A complaint must contain sufficient factual allegations to state a claim and must not leave the Court to speculate about the underlying events. Fed. R. Civ. Pro. 8; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). While the Court must construe a pro se plaintiff's complaint liberally, this lenient standard does not excuse a pro se litigant from meeting the most basic pleading requirements. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (1988); American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000).
First Amendment Claims
To state a claim under § 1983, a complaint must allege: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). A plaintiff must allege facts showing how individually named defendants caused, or personally participated in causing, the harm alleged in the complaint. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).
Section 1983 claims may be brought against defendants in their official or personal capacities. Hafer v. Melo, 502 U.S. 21, 27 (1991). "[W]hen a plaintiff sues a defendant for damages, there is a presumption that he is seeking damages against the defendant in his personal capacity." Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (citing Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999)). Here, the Court infers from plaintiff's request for damages that plaintiff wishes to impose individual liability on defendant Garrity acting in his personal capacity for actions taken under the color of state law. See Dkt. 1-1, at 7. Accordingly, the Court will examine whether plaintiff has alleged that defendant caused or personally participated in causing the harm alleged in the complaint. Arnold, 637 F.2d at 1355.
The Ninth Circuit has recognized a First Amendment "right to film matters of public interest," although it has not explicitly recognized a right to record police officers in the course of their duties. Fordyce v. City of Seattle, 55 F.3d 236, 239 (9th Cir. 1995) (finding that in the absence of Washington state law on the permissibility of filming private conversations in public spaces, a videographer had raised a genuine dispute of material fact regarding the constitutionality of his arrest). Nonetheless, whatever the contours of plaintiff's rights to make a record of his interactions with police officers, the complaint states that another person was trying to record the events on video and does not indicate that plaintiff was personally operating any recording equipment at all.
Furthermore, to bring a First Amendment retaliation claim, a plaintiff must establish that (1) plaintiff engaged in expressive conduct that addressed a matter of public concern, (2) the government officials took an adverse action against the plaintiff, and (3) the expressive conduct was a substantial or motivating factor for the adverse action. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004). Without the factual allegation that plaintiff himself engaged in protected expressive conduct, the complaint fails to show how plaintiff's own rights have been violated. Plaintiff's complaint on its face suffers from a lack of standing to bring his First Amendment claims against Sergeant Garrity. See Warth v. Seldin, 422 U.S. 490, 498 (1975).
Plaintiff's complaint also fails to include facts connecting Sergeant Garrity to the other allegations of damage to plaintiff's car or indicating any harm resulting from plaintiff's phone conversation with Sergeant Garrity. The complaint lacks "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555 (2007)). Accordingly, plaintiff's proposed complaint fails to state a claim upon which relief can be granted.
Finally, this Court need not address plaintiff's state law claim for negligent supervision, as the Court lacks jurisdiction where plaintiff has failed to state a federal claim under § 1983.
Duplicative Action
Plaintiff, who is proceeding pro se, currently has two other matters pending before this Court in which he attempts to assert essentially identical claims against various defendants based on the 2018 encounter.
"Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e)." Goods v. Wasco State Prison, No. 119CV01318JLTPC, 2019 WL 4670217, at *1 (E.D. Cal. Sept. 25, 2019); see, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint repeating pending or previously litigated claims may be considered abusive and dismissed under § 1915. Goods, 2019 WL 4670217, at *1; Cato, 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021.
"Repeating the same factual allegations asserted in an earlier case, even if now filed against new defendants, is subject to dismissal as duplicative." Goods, 2019 WL 4670217, at *1; see, e.g., Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975); see also, Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) ("[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions." (internal quotation marks and citation omitted)).
In one of these cases, Smith v. Bremerton Police Dep't, et al., C19-5479-BHS, plaintiff has already named Sergeant Garrity as a defendant. Plaintiff's complaint in that action contains nearly identical, if more numerous, factual allegations, alleges the same constitutional violations, and seeks similar relief to plaintiff's instant proposed complaint. The Court in that case fully analyzed plaintiff's claims against defendant Garrity and dismissed the claims without prejudice for failure to state a claim. Smith v. Bremerton Police Dep't, et al., C19-5479-BHS, Dkt. 10, at 3 (W.D. Wash.). The Court granted leave for plaintiff to supply a second amended complaint in which plaintiff could supply additional facts to sustain a claim against defendant Garrity. Id. That deadline has currently passed, but the matter is still open. See id. at Dkt. 12.
In the second case, Smith v. City of Bremerton, C19-6199-BHS-DWC, Judge Christel has also recommended that the complaint be dismissed as duplicative and failing to state a claim. See C19-6199-BHS-DWC, Dkt. 7, at 5 (W.D. Wash.). That recommendation is currently under consideration. Id.
Plaintiff's proposed complaint does not allege facts substantially different from his other complaints and appears to be duplicative. Therefore, the Court directs plaintiff to show cause why this complaint should not be dismissed without prejudice and without further leave to amend. See Fid. Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir.1986) ("The district court's discretion to deny leave to amend is particularly broad where the court has already given the plaintiff an opportunity to amend his complaint.").
CONCLUSION
Accordingly, it is ORDERED that plaintiff shall provide the Court on or before May 22, 2020, with an explanation of reasons why the Court should not dismiss this action.
The Clerk is directed to send a copy of this Order to plaintiff.
Dated this 20th day of April, 2020.
/s/_________
Theresa L. Fricke
United States Magistrate Judge