1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 LAWRENCE JACKSON, 9 Case No. 22-cv-02246-JCS Plaintiff, 10 v. ORDER TO SHOW CAUSE RE 11 REVIEW UNDER

MENLO PARK POLICE DEPARTMENT, 12 Defendant. 13

14 15 I. INTRODUCTION 16 Plaintiff in this action is proceeding pro se. The Court has granted Plaintiff’s application to 17 proceed in forma pauperis and therefore is required to review the sufficiency of Plaintiff’s 18 complaint to determine whether it satisfies

(e)(2)(B). For the reasons set forth 19 below, the Court finds that Plaintiff’s claims are insufficiently pled. Therefore, Plaintiff is 20 ORDERED TO SHOW CAUSE why this case should not be dismissed. Plaintiff shall file a 21 response to this Order addressing why his claims are sufficiently pled no later than May 27, 2022. 22 Alternatively, Plaintiff may attempt to cure the deficiencies identified herein by filing an amended 23 complaint by the same date. 24 II. BACKGROUND 25 A. The Complaint 26 In his Complaint, Plaintiff asserts a civil rights claim “for harassment and racial profiling 27 and sexual assault” against the Menlo Park Police Department based on the allegation that it is 1 further alleges that the Menlo Park Police Department is “monitoring [him] without a warrant they 2 monitor [his] penis and [his] body parts with a satellite camera and social media without a 3 warrant.”

at ECF p. 5-8.1 He also alleges that FBI Agent “Ed Soar’s” is monitoring him and 4 harassing him without a warrant, though that individual is not named as a defendant.

at ECF 5 p. 6. 6 B. The TRO Motion 7 Plaintiff has filed a motion for a temporary restraining order “because the Menlo Park 8 Police [Department] keep harassing [him].” Dkt. no. 4. 9 III. ANALYSIS 10 A. Legal Standards Under

and Rule 12(b)(6) 11 Where a plaintiff is found to be indigent under

(a)(1) and is granted leave 12 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 13 (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 14 monetary relief from a defendant who is immune from such relief.

(e)(2)(B); see 15 Marks v. Solcum,

(9th Cir. 1996). 16 To state a claim for relief, a plaintiff must make “a short and plain statement of the claim 17 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Further, a claim may be 18 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); 19 see also Diaz v. Int’l Longshore and Warehouse Union, Local 13,

(9th Cir. 20 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of 21 material fact in the complaint as true and construe[s] them in the light most favorable to the non- 22 moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S.,

, 975 23 (9th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as true is 24 inapplicable to legal conclusions [and] mere conclusory statements,” Ashcroft v. Iqbal,

(2009) (citing Bell Atl. Corp. v. Twombly,

(2007)), and courts “do not 26 necessarily assume the truth of legal conclusions merely because they are cast in the form of 27 1 factual allegations.” Coto Settlement v. Eisenberg,

(9th Cir. 2010) (internal 2 quotation marks omitted). The complaint need not contain “detailed factual allegations,” but must 3 allege facts sufficient to “state a claim to relief that is plausible on its face.”

at 678 (citing 4 Twombly,

). 5 Where the complaint has been filed by a pro se plaintiff, courts must “construe the 6 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler,

338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 8 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 9 amendment.” Noll v. Carlson,

(9th Cir. 1987), superseded on other grounds 10 by statute, as recognized in Lopez v. Smith,

(9th Cir. 2000) (en banc). Further, 11 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 12 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 13 litigant uses the opportunity to amend effectively.”

(quoting Ferdik v. Bonzelet,

(9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant 15 will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t,

(9th 16 Cir. 1988) (quoting Noll v. Carlson,

(9th Cir. 1987)). 17 B. Discussion 18 Based on Plaintiff’s allegation that his civil rights are being violated because he is being 19 monitored without a warrant, the Court construes Plaintiff’s complaint as asserting a claim under 20

based on the Fourth Amendment right to be free from unreasonable searches and 21 seizures. As pled, however, Plaintiff’s complaint fails to state any viable claim. 22 First, in naming the Menlo Park Police Department as a defendant, Plaintiff has not named 23 a proper defendant. A claim for civil rights violations pursuant to

requires a 24 “person” who acted under color of state law.

. Individual officers are considered 25 “persons” within the meaning of § 1983, as are local governmental units, such as counties or 26 municipalities. Will v. Michigan Dept. of State Police,

, (1989). However, 27 municipal departments and sub-units, including police departments, are generally not considered 1 96 (N.D.Cal. 1996) (holding that “naming a municipal department as a defendant is not an 2 appropriate means of pleading a § 1983 action against a municipality,” and dismissing the Santa 3 Clara Department of Corrections from the action). Therefore, Plaintiff fails to state a claim as to 4 the Menlo Park Police Department. 5 Second, to state a claim under

, Plaintiff must plausibly allege a violation 6 of a federal statute or constitutional right. Plaintiff apparently seeks to assert a claim for violation 7 of his rights under the Fourth Amendment.2 “The touchstone of Fourth Amendment analysis is 8 whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” California 9 v. Ciraolo,

(1986) (quoting Katz v. United States,

(1967) 10 (Harlan, J., concurring)). That question, in turn, involves a two-step inquiry: 1) “has the 11 individual manifested a subjective expectation of privacy in the object of the challenged search;” 12 and 2) “is society willing to recognize that expectation as reasonable?”

(citations omitted). In 13 Ciraolo, the Court held that a warrant was not required where police officers flew over the 14 defendant’s house and from publicly navigable airspace photographed marijuana plants in the yard 15 that could readily be seen from above using a standard 35 millimeter camera. Id. at 213-214. The 16 court reasoned that while the defendant had a subjective expectation of privacy, that expectation 17 was not reasonable under the facts of that case. Id. at 214. The Court suggested, however, that it 18 might have reached a different result if the police officers had conducted a warrantless search that 19 was more “physical[ly] intrusiveness” or used “modern technology which discloses to the senses 20 those intimate associations, objects or activities otherwise imperceptible to police or fellow 21 citizens.” Id. at 215 n.3. 22 Here, Plaintiff has alleged no specific facts regarding the circumstances under which the 23 alleged monitoring occurred. Further, although Plaintiff references “social media” it is not clear 24 how social media is related to his claim. Under these circumstances, the allegations are 25 insufficient to give rise to a plausible inference his Fourth Amendment rights have been violated 26

27 2 To the extent Plaintiff’s conclusory reference to racial profiling suggests he may be attempting to 1 under the standard articulated above. The Court also notes that although courts generally accept as 2 true the factual allegations contained in the complaint when reviewing the sufficiency of the 3 allegations under

, that standard does not apply where the allegations are clearly 4 baseless or fanciful. See Neitzke v. Williams,

(1989). That appears to be the 5 case here. 6 Finally, to the extent that Plaintiff seeks to assert a claim against an FBI agent who 7 allegedly engaged in the same activities as the Menlo Park Police Department, that claim would be 8 asserted under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

, 9 389 (1971), which under narrow circumstances authorizes a suit for damages against a federal 10 officer for violations of an individual’s constitutional rights, including the Fourth Amendment. 11 However, the factual allegations in the Complaint as to the FBI agent’s conduct, like those relating 12 to the Menlo Park Police Department, do not give rise to a plausible inference that the agent 13 violated Plaintiff’s Fourth Amendment rights (or any other federal constitutional or statutory 14 right). Therefore, that claim would fail as well if Plaintiff were to amend the complaint to add the 15 FBI agent as a defendant. 16 IV. CONCLUSION 17 For the reasons stated above, the Court concludes that Plaintiff has failed to state any 18 viable claim.3 Plaintiff shall file a response to this Order addressing why his claims are 19 sufficiently pled no later than May 27, 2022. Alternatively, Plaintiff may attempt to cure the 20 deficiencies identified herein by filing an amended complaint by the same date. Any amended 21 complaint must include the caption and civil case number used in this order (22-cv-2246) and the 22 words FIRST AMENDED COMPLAINT on the first page. Because an amended complaint 23 completely replaces the previous complaint, any amendment may not incorporate claims or 24 allegations of Plaintiff’s original complaint by reference, but instead must include all of the facts 25 and claims Plaintiff wishes to present and all of the defendants he wishes to sue. See Ferdik v. 26 Bonzelet,

(9th Cir. 1992). 27 1 Plaintiff is encouraged to contact the Federal Pro Bono Project’s Pro Se Help Desk for 2 assistance as he continues to pursue this case. Lawyers at the Help Desk can provide basic 3 assistance to parties representing themselves but cannot provide legal representation. Although in- 4 || person appointments are not currently available due to the COVID-19 public health emergency, 5 || Plaintiff may contact the Help Desk at (415) 782-8982 or [email protected] to schedule a 6 || telephonic appointment. 7 IT IS SO ORDERED. 8 9 || Dated: April 27, 2022 10 € J PH C. SPERO 11 ief Magistrate Judge 12

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