United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LARRY LIONEL WHITE,

Plaintiff,

v.

CITY OF SAN FRANCISCO; et al.,

Defendants. /

No. C 08-4603 SI (pr)

ORDER 

INTRODUCTION

Larry Lionel White, an inmate at the California State Prison in Lancaster, filed a pro se

civil rights action under 42 U.S.C. § 1983. The court reviewed his complaint and determined

that it stated a claim against defendant Siragusa and ordered it served on that defendant. Plaintiff

later indicated an intent to amend his complaint, and the court granted him leave to do so. His

second amended complaint is now before the court for review under 28 U.S.C. § 1915A. 

BACKGROUND

In his second amended complaint (docket # 39), White names as defendants the City of

San Francisco, the San Francisco Police Department, and retired San Francisco Police

Department inspector Peter Siragusa. White alleges in his second amended complaint that, on

April 22, 2005, he was arrested in his home without probable cause and his apartment was

searched without probable cause. He further alleges that he "was not and has not been provided

a valid warrant to do the above." Second Amended Complaint, p. 2. (In his original complaint,

he alleged that there was no valid warrant because neither the warrant nor the affidavit in support

of it was signed.) White alleges that the deprivation of his rights "resulted from policy or custom

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for which defendant(s) was responsible." Id. 

DISCUSSION

A federal court must engage in a preliminary screening of any case in which a prisoner

seeks redress from a governmental entity or officer or employee of a governmental entity. See

28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss

any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,

or seek monetary relief from a defendant who is immune from such relief. See id. at

1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police

Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

a right secured by the Constitution or laws of the United States was violated and (2) that the

violation was committed by a person acting under the color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988).

The Fourth Amendment proscribes "unreasonable searches and seizures." U.S. Const.

amend. IV. “[S]earches and seizures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). Liberally construed, the

allegations in the second amended complaint that the residence was searched and White was

seized in his residence without a valid warrant state a claim for a Fourth Amendment violation.

The second amended complaint adequately links retired San Francisco police inspector Peter

Siragusa to this claim, as he apparently effectuated the arrest. The allegations of the second

amended complaint, liberally construed, also appear to state a cognizable claim against the

municipality, as White has alleged that the warrantless search and seizure were pursuant to a

policy or custom for which defendants were responsible. See Plumeau v. School Dist. #40

County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (to impose municipal liability under §

1983 for a violation of constitutional rights, a plaintiff must show (1) that the plaintiff possessed

a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that

this policy amounted to deliberate indifference to the plaintiff's constitutional rights; and (4) that

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the policy was the moving force behind the constitutional violation). The City and County of

San Francisco, of which the San Francisco Police Department apparently is an instrumentality,

will be served with process. 

CONCLUSION

For the foregoing reasons, 

1. The second amended complaint states a claim for relief under 42 U.S.C. § 1983

against defendants Peter Siragusa and the City and County of San Francisco for violations of

plaintiff's Fourth Amendment rights. All other defendants and claims are dismissed.

2. The clerk shall issue a summons and the United States Marshal shall serve, without

prepayment of fees, the summons, a copy of the second amended complaint and a copy of all the

documents in the case file upon the City and County of San Francisco. 

3. In order to expedite the resolution of this case, the following briefing schedule for

dispositive motions is set:

a. No later than May 14, 2010, defendants must file and serve a motion for

summary judgment or other dispositive motion. If defendants are of the opinion that this case

cannot be resolved by summary judgment, they must so inform the court prior to the date the

motion is due.

b. Plaintiff's opposition to the summary judgment or other dispositive motion

must be filed with the court and served upon defendants no later than June 18, 2010. Plaintiff

must bear in mind the following notice and warning regarding summary judgment as he prepares

his opposition to any summary judgment motion:

The defendants may make a motion for summary judgment by which they seek to have

your case dismissed. A motion for summary judgment under Rule 56 of the Federal

Rules of Civil Procedure will, if granted, end your case. [¶] Rule 56 tells you what you must do in order to oppose a motion for summary judgment.

Generally, summary judgment must be granted when there is no genuine issue of material fact --

that is, if there is no real dispute about any fact that would affect the result of your case, the party

who asked for summary judgment is entitled to judgment as a matter of law, which will end your

case. When a party you are suing makes a motion for summary judgment that is properly

supported by declarations (or other sworn testimony), you cannot simply rely on what your

complaint says. Instead, you must set out specific facts in declarations, depositions, answers to

interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts

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shown in the defendants' declarations and documents and show that there is a genuine issue of

material fact for trial. If you do not submit your own evidence in opposition, summary

judgment, if appropriate, may be entered against you. If summary judgment is granted, your

case will be dismissed and there will be no trial. (See Rand v. Rowland, 154 F.3d 952, 962-63

(9th Cir. 1998).) 

c. If defendants wish to file a reply brief, the reply brief must be filed and

served no later than July 2, 2010.

4. All communications by plaintiff with the court must be served on a defendant's

counsel by mailing a true copy of the document to defendant's counsel. The court may disregard

any document which a party files but fails to send a copy of to his opponent. Until a defendant's

counsel has been designated, plaintiff may mail a true copy of the document directly to

defendant, but once a defendant is represented by counsel, all documents must be mailed to

counsel rather than directly to that defendant. 

5. Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is

required before the parties may conduct discovery.

6. Plaintiff is responsible for prosecuting this case. Plaintiff must promptly keep the

court informed of any change of address and must comply with the court's orders in a timely

fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff must file a notice of change of

address in every pending case every time he is moved to a new facility.

7. Plaintiff is cautioned that he must include the case name and case number for this

case on any document he submits to this court for consideration in this case.

IT IS SO ORDERED.

Dated: March 22, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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