The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE AMENDED COMPLAINT OR TO NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE RESPONSE DUE WITHIN 30 DAYS
Plaintiff Martin Ross Miale ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in the custody of the California Department of Corrections and Rehabilitation. However, the events in Plaintiff's complaint appear to have taken place before his incarceration. Plaintiff is suing under section 1983 for the violation of his constitutional rights. Plaintiff also claims that Defendants violated the Posse Comitatus Act (18 U.S.C. § 1385). Plaintiff names Richard Rogers, Lee Stanford, Craig Davis, Todd Blankenship, George Ruckman, Jim Earl, Dan Bressler, Lt. Ditbetter, Zack Gordon, Jeff Gimpler, Jim Mele, A. J. Ford, P. T. Jones, Ken Austin, Tom Shepard, Bernie Roberts, and Donald I. Segerstrom as defendants. For the reasons set forth below, Plaintiff is ordered either to notify the Court of his willingness to proceed only on the claims found to be cognizable in this order, or to file an amended complaint.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
In determining whether a complaint fails to state a claim, the Court uses the same pleading standard used under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
Although Plaintiff is currently a prisoner in the custody of the California Department of Corrections and Rehabilitation, Plaintiff's complaint appears to describe events that occurred before Plaintiff was incarcerated. Plaintiff alleges that he was retaliated against by employees of the Tuolumne County Sheriff's Department. Plaintiff alleges that Bruce Wood Medina was killed by employees of the Tuolumne County Sheriff's Department and a monument was erected by his family and friends stating that his death was caused by "cowards" of the Tuolumne County Sheriff's Department. The monument reads:
This Monument is Dedicated to Bruce Wood Medina Born Dec. 31, 46 Killed Feb. 07, 91 On this Location, While Unarmed & Standing on His Own Property Bruce Wood Medina was Shot & Killed by the Coward, Scott Mcfee and/or other Cowards of the Tuolumne County Sherriff[sic] Department This Crime was then White-Washed by the California Department[sic] of Justice (Compl. 23.) The monument stands on Plaintiff's property. Plaintiff alleges that he is frequently pulled over by officers from the Sheriff's Department who urge Plaintiff to remove the monument from his property.
Plaintiff alleges that sometime in February 2005, Defendant Davis concocted a story that Plaintiff was armed with automatic weapons and explosives, and was dealing drugs throughout the foothills. On March 4, 2005, a search warrant was issued against Plaintiff. On March 14, 2005, the Tuolumne County Sheriff's Department "activated" the California National Guard. Members of the California National Guard dressed in ghillie suits, armed themselves with sniper rifles and machine guns, and positioned themselves around Plaintiff's property. These California National Guard members, along with local law enforcement personnel, executed the search warrant around 6:30 a.m. on Plaintiff's property. Plaintiff alleges that there were over 30 armed men "running amuck" on his property.
Plaintiff alleges that the armed military and law enforcement officials surrounded Plaintiff's puppy yelling incoherently. Plaintiff, who had been preiviously injured in a car wreck, limped toward the armed men waiving his arms and yelling "Don't shoot, don't shoot, he is just a puppy." The armed men then turned their guns toward Plaintiff and continued screaming incoherently. A California National Guard armored personnel carrier loaded with additional men then "came flying into" Plaintiff's property, nearly hitting Plaintiff. A military helicopter also dropped from the sky, "armed with what looked to be a 50 caliber machine gun" pointing at Plaintiff. Plaintiff attempted to get down on the ground, but had difficulty due to injuries in his leg. One of the California National Guardsmen approached Plaintiff, drove Plaintiff face first into the concrete, and twisted Plaintiff's arm behind his head, causing Plaintiff's shoulder to crack. Plaintiff also felt another person stomping on his legs. Another person climbed on Plaintiff's back, told Plaintiff to calm down, and popped his shoulder back into place.
Plaintiff alleges that he was then handcuffed and placed on a rock while other men ran around on his property waving their machine guns yelling incoherently, unnecessarily kicked down doors that were unlocked, and destroyed Plaintiff's property. Plaintiff was then placed under arrest for a parole violation and taken to Tuolumne General Hospital for treatment for his shoulder injury. Plaintiff received an x-ray but did not receive any treatment because Plaintiff was told the injury would heal itself over time. Plaintiff was also told that an MRI would be necessary to tell what the "real" damage was, but Plaintiff did not receive an MRI.
While in the county jail, Plaintiff was told by two employees of the Tuolumne County Sheriff's Department that people were going to Plaintiff's property to steal his property. An officer (Mcneil) told Plaintiff that they had received information about the people on his property but are choosing not to stop them. A second officer (Derocha) told Plaintiff that the same people are on Plaintiff's property pulling the motor out of Plaintiff's truck but the Sheriff's department was refusing to stop the crimes from occurring because of the monument in front of Plaintiff's property. The truck ended up being stolen and not recovered despite Plaintiff's efforts to notify the sheriff's department and the district attorney (Defendant Segerstrom). Plaintiff alleges that someone stole another car off Plaintiff's property as well as over $30,000 worth of property while Defendant Blankenship watched from across the street.
Plaintiff alleges that Officer Derocha gave Plaintiff a hint about where his property was stolen after the sheriff arrested the thief and told Plaintiff to take care of it himself. Plaintiff asked why they did not prevent the crime from happening and was told that he had nothing coming unless "we could work a deal." (Compl. 12.)
Plaintiff claims that Defendants violated his constitutional rights. Plaintiff does not specify which constitutional rights Defendant violated, nor does Plaintiff specify how Defendants violated those rights. Plaintiff merely sets forth the facts of his claims and concludes that Defendants generally violated his constitutional rights and the Posse Comitatus Act, see discussion infra Part III.B. Plaintiff does quote the Fourteenth Amendment in his complaint. (Compl. 13.) Plaintiff does not specifically allege that Defendants violated the Fourteenth Amendment, how Defendants violated the Fourteenth Amendment, or whether Plaintiff is attempting to state a claim under the Due Process Clause of the Fourteenth Amendment or the Equal Protection Clause of the Fourteenth Amendment.
Liberally construed, Plaintiff's claims are most properly analyzed as violations of the First Amendment (for retaliation against his exercise of his right to free speech) and the Fourth Amendment (for the ...