1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROBERT CARL GORSKI,

Plaintiff,

v.

COUNTY OF MARIN, et al.,

Defendants.

Case No.17-cv-00322-JSC 

ORDER GRANTING IN FORMA 

PAUPERIS APPLICATION, 

DENYING MOTION FOR 

APPOINTMENT OF COUNSEL, 

REVIEWING COMPLAINT 

UNDER SECTION 1915, AND 

DISMISSING COMPLAINT WITH 

LEAVE TO AMEND

Re: Dkt. Nos. 2 & 3

Plaintiff Robert Carl Gorski, representing himself, brings this civil action against 

Defendants the County of Marin, San Rafael Police Department, and Linda Aroyan. (Dkt. No. 1.) 

Plaintiff’s complaint was accompanied by an Application to Proceed In Forma Pauperis and 

Motion for Appointment of Counsel. (Dkt. Nos. 2 & 3.) Having considered the motions, the 

Court GRANTS Plaintiff’s application to proceed in forma pauperis, DENIES his motion for 

appointment of counsel, and reviews the complaint pursuant to 28 U.S.C. § 1915. For the reasons 

set forth below, the Court DISMISSES the complaint with leave to amend.1

BACKGROUND

Plaintiff alleges that in 1980 he was incarcerated in the Marin County Jail for a violation of 

 

1

Plaintiff has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). 

(Dkt. No. 3.)

Case 3:17-cv-00322-JSC Document 13 Filed 03/08/17 Page 1 of 6
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

California Penal Code 220 and sentenced to six years in prison. (Complaint at 5.) He alleges that 

while he was in prison “a charge of 288 PC was added to my file on 11-24-80 and sent to DOJ.” 

(Id.) The charge was from an employee from the San Rafael Police Department, Defendant Linda 

Aroyan, which “[wa]s impossible because I was in custody and could not have been arrested and

NEVER was!” (Id. at 5, 7.) Plaintiff alleges that he now has to register as a sex offender and that 

twice he has failed to timely do so and had to serve the maximum sentence in prison. (Id. at 7.) 

Further, he has to wear an ankle monitor, attend sex offender therapy counseling, and is listed on 

Google as a child molester. (Id.) Plaintiff “want[s] his name and picture removed from Google 

for life” and seeks $80 million in damages. (Id. at 6.)

Plaintiff originally filed this action in the District Court for the Eastern District of 

California in September 2016. (Dkt. No. 1.) In January 2017, the action was transferred to this 

District pursuant to 28 U.S.C. § 1406(a) because the claim(s) arose in Marin County. (Dkt. Nos. 4 

& 5.)

LEGAL STANDARD

Under 28 U.S.C. § 1915, the Court has a continuing duty to dismiss any case in which a 

party is proceeding in forma pauperis if the Court determines that the action is (1) frivolous or 

malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief 

against a defendant who is immune from such relief. A complaint is frivolous for Section 1915 

purposes where there is no subject matter jurisdiction. See Castillo v. Marshall, 207 F.3d 15, 15 

(9th Cir. 1997) (citation omitted); see also Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987) 

(recognizing the general proposition that a complaint should be dismissed as frivolous on Section 

1915 review where subject matter jurisdiction is lacking). Regarding dismissals for failure to state

a claim, Section 1915(e)(2) parallels the language of Federal Rules of Civil Procedure 12(b)(6). 

Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege 

facts that plausibly establish the defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555-57 (2007). When the complaint has been filed by a pro se plaintiff, as is the case here, 

courts must “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” 

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Upon dismissal, pro se 

Case 3:17-cv-00322-JSC Document 13 Filed 03/08/17 Page 2 of 6
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

plaintiffs proceeding in forma pauperis must be given leave to “amend their complaint unless it is 

absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

Franklin v. Murphy, 745 F.2d 1221, 1235 n.9 (9th Cir. 1984) (internal citations and quotation 

marks omitted); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).

DISCUSSION

A. Failure to State a Claim

Plaintiff contends that Defendant Linda Aroyan of the San Rafael Police Department 

altered his criminal record to improperly add a conviction and that as a result he has had to register 

as a sex offender, and has served additional time for failing to do so. There are a number of issues 

with Plaintiff’s Complaint. 

First, Plaintiff fails to specify the legal basis for his claims. The Complaint alleges that he 

has “been violated from all my citizen rights,” but does not identify what those rights are. 

(Complaint at 4.) To the extent that Plaintiff is alleging denial of his constitutional rights, such a 

claim might arise under 42 U.S.C. § 1983. However, to state a claim under § 1983, a complaint 

“must both (1) allege the deprivation of a right secured by the federal Constitution or statutory 

law, and (2) allege that the deprivation was committed by a person acting under color of state 

law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To adequately plead these 

elements, the complaint must identify what constitutional or other federal right each defendant 

violated, providing sufficient facts to plausible support each purported violation. See, e.g., 

Drawsand v. F.F. Props., L.L.P., 866 F. Supp. 2d 1110, 1121 (“Aside from passing references to 

due process and equal protection, the Complaint fails to allege how [plaintiffs’] constitutional 

rights were violated and fails to identify each Defendant's role therein.”); Walsh v. Am. Med. 

Response, No. 2:13-cv-2077 MCE KJN (PS), 2014 WL 2109946, at *7 (E.D. Cal. May 20, 2014) 

(“Before any claims may be found to be cognizable, plaintiffs must separate each specific claim 

they wish to pursue, identify which defendants relate to each particular claim, and identify the 

Constitutional right implicated by each claim.”). Plaintiff’s conclusory allegation regarding denial 

of his citizen rights is insufficient to state a claim under Section 1983.

Second, even if Plaintiff alleged a claim under Section 1983, any such claim may be barred 

by Heck v. Humphrey, 512 U.S. 477 (1994), which provides that in order to recover damages for 

Case 3:17-cv-00322-JSC Document 13 Filed 03/08/17 Page 3 of 6
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

an allegedly unconstitutional conviction or imprisonment pursuant to 42 U.S.C. § 1983, a plaintiff 

must prove that the conviction or sentence was invalidated. Id. at 486-487. Plaintiff’s Complaint 

does not allege that his sentence for violation of Penal Code Section 288 has been invalidated or 

overturned, and instead, alleges that he has faced additional incarceration and criminal 

consequences as a result of the conviction. Based on the allegations of the Complaint, his Section 

1983 claim appears barred by Heck v. Humphrey.

2

Plaintiff has not stated a claim for which relief can be granted because he fails to allege

either that he was deprived “of a right secured by the federal Constitution or statutory law” or that 

any Defendants were “acting under the color of state law” in causing such a deprivation. Nor has 

he alleged that the conviction he complains of was subsequently invalidated. Consequently, 

Plaintiff’s claims are DISMISSED with leave to amend.

B. Appointment of Counsel

Plaintiff requests the appointment of counsel. (Dkt. No. 3.) “[T]he appointment of counsel 

in a civil case is ... a privilege and not a right.” Gardner v. Madden, 352 F.2d 792, 793 (9th 

Cir.1965); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) ( stating that “[g]enerally 

a person has no right to counsel in civil actions”). The Court “may under exceptional 

circumstances’ appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” 

Palmer, 560 F.3d at 970 (citation omitted). To determine whether “exceptional circumstances” are 

present, the “court must evaluate the likelihood of success on the merits as well as the ability of 

the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” 

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983). Plaintiff has not demonstrated a likelihood of 

success on the merits or that this failure is due to either his difficulty articulating claims as a pro se 

litigant or the complexity of the legal issues involved. His motion for appointment of counsel is 

therefore denied.

 

2

Plaintiff appears to have sought similar redress in an earlier action in the Eastern District of 

California where he was likewise advised that he needed to seek relief regarding any criminal 

convictions in a habeas petition. See Gorski v. Department of Justice Bureau of Criminal 

Identification and Information, No. 13-cv-00489-GSA, Dkt. No. 9 (E.D. Cal. Sept. 16, 2013). 

Case 3:17-cv-00322-JSC Document 13 Filed 03/08/17 Page 4 of 6
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

However, Plaintiff may contact the Legal Help Center, 450 Golden Gate Avenue, 15th 

Floor, Room 2796, Telephone No. (415)-782-8982, for free assistance regarding his claims.

CONCLUSION

For the reasons stated above, Plaintiff has failed to allege a claim upon which relief can be 

granted. The Court therefore DISMISSES the Complaint with leave to amend. If Plaintiff elects 

to amend his complaint, must provide the legal and factual basis for his claims. If he seeks to state 

a claim for violation of 42 U.S.C. § 1983, Plaintiff must allege two essential elements: (1) that a 

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

violation was committed by a person acting under the color of state law. Anderson, 451 F.3d at 

1067. Further, if Plaintiff seeks to state a section 1983 claim, he must allege sufficient facts to 

establish that the action is not barred by Heck, 512 U.S. 477. 

If Plaintiff elects to amend his complaint he must do so by April 7, 2017. 

This Order disposes of Docket Nos. 2 & 3.

IT IS SO ORDERED.

Dated: March 8, 2017

JACQUELINE SCOTT CORLEY

United States Magistrate Judge

Case 3:17-cv-00322-JSC Document 13 Filed 03/08/17 Page 5 of 6
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROBERT CARL GORSKI,

Plaintiff,

v.

COUNTY OF MARIN, et al.,

Defendants.

Case No. 17-cv-00322-JSC 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 

District Court, Northern District of California.

That on March 8, 2017, I SERVED a true and correct copy(ies) of the attached, by placing 

said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 

depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 

receptacle located in the Clerk's office.

Robert Carl Gorski

33593 Ponderosa Way

Paynes Creek, CA 96075 

Dated: March 8, 2017

Susan Y. Soong

Clerk, United States District Court

By:________________________

Ada Means, Deputy Clerk to the 

Honorable JACQUELINE SCOTT CORLEY

Case 3:17-cv-00322-JSC Document 13 Filed 03/08/17 Page 6 of 6