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Fulton v. Thayer

March 19, 2010

MICHAEL D. FULTON, PLAINTIFF,
v.
THAYER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, on January 27, 2010 ("Complaint"). Plaintiff names the following defendants: Officers Thayer, Garcia, Gonzalez, and Vasquez of the Los Angeles Police Department, Southwest Division (called "Southwest Police Department" in the Complaint); Parole Agents L. Robles and C. Ramirez; Board of Parole Hearings Deputy Commissioner Perez; parole revocation counsel Nima M. Tehrany; and the owners or managers of the Twin Tower Motel.

Congress has mandated that courts perform an initial screening of civil rights actions brought by prisoners with respect to prison conditions and/or that seek redress from a governmental entity or officer or employee of a governmental entity. The Court "shall" dismiss a prisoner civil rights action if the Court concludes that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks relief against a defendant who is immune from suit.

28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). In screening such a complaint, the Court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Id.; Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

ALLEGATIONS OF THE COMPLAINT

On May 25, 2009, as plaintiff and his nephew Michael Boddie walked out of Boddie's girlfriend's apartment, they were confronted by Officers Thayer, Garcia, Gonzalez, and Vasquez, all of whom pointing their guns at plaintiff and Boddie. (Complaint at 5, 6a.) Officer Thayer placed Boddie on the ground and handcuffed him. (Id. at 5.) When plaintiff protested that he and Boddie had not done anything to justify arrest, Officer Thayer stated that the location was a Blood gang hangout. (Id. at 5-6.) Plaintiff disagreed and told Officer Thayer that the officers were violating his and Boddie's rights. (Id. at 6.) Officer Thayer stated that the officers had "a court order that [gave] them the right to lynch" African-Americans. (Id.) Plaintiff cautioned his friends and relatives to watch out so as to ensure that the officers did not plant any guns or drugs on them. (Id.) Officers Thayer and Garcia then grabbed plaintiff and slammed him to the ground. (Id.) As a result of plaintiff's neck and shoulders hitting the ground, he suffers from neck spasms that prevent him from holding his head up straight. (Id. at 6-6a.) Plaintiff also has bone fragments in his shoulder and numbness and loss of movement in his left arm. (Id. at 3-4, 6a.)

The "court order" allegedly mentioned by Officer Thayer is a gang injunction. (Complaint at 6.) Plaintiff alleges that Officers Thayer, Garcia, Gonzalez, and Vasquez misuse the gang injunction to terrorize African-American communities "with threats of legal authority to lynch or execute [African-Americans] without due process of law." (Id. at 6, 6a.)

Plaintiff further alleges that, on September 5, 2007, Parole Agent L. Robles imposed a special condition of parole that precluded plaintiff from associating with members of the Piru Blood gang. (Complaint at 6a.) As a result of his May 25, 2009 arrest, plaintiff was charged with violating this parole condition. On June 30, 2009, plaintiff appeared at a parole revocation hearing before Deputy Commissioner Perez. (Id. at 6b.) Plaintiff complains that Perez allowed Parole Agent Ramirez to identify plaintiff falsely as an associate of the Piru Blood gang by introducing a fraudulent "CDC 812" form.*fn1 (Id.) Perez ruled that the CDC 812 form was valid and that it constituted sufficient evidence of plaintiff's nexus to a gang. (Id.) Plaintiff's parole was revoked, and he was returned to prison. (Id. at 6a-6b.)

Once in prison, plaintiff submitted an administrative appeal requesting copies of his CDC 812 form and other gang documentation. (Complaint at 6a, 6b, 6c.) On October 24, 2009, plaintiff's administrative appeal was denied on the ground that his central file does not contain any documentation indicating gang affiliation. (Id. at 6a.) Plaintiff's correctional counselor later confirmed that there is no gang documentation in plaintiff's file. (Id. at 6a-6b.) Plaintiff has attached to the Complaint copies of prison records stating that he has no gang affiliation. (Complaint, Exs., passim.)

Plaintiff was represented at his parole revocation hearing by parole revocation counsel Tehrany. (Complaint at 6c.) Prior to the hearing, plaintiff suggested that Tehrany review plaintiff's central file or request documents from it, but Tehrany declined to do so. (Id. at 6c.) Plaintiff contends that if his suggestion had been followed, Tehrany would have discovered that there was no gang documentation in plaintiff's file and would have been able to cross-examine Ramirez more effectively. (Id. at 6c, 6e.)

Plaintiff further alleges that, on May 27, 2009, his brother went to the Twin Towers Motel to retrieve plaintiff's property but was told by the owner's daughter that Ramirez had instructed her not to give plaintiff's property to anyone without "his" authorization.*fn2 (Complaint at 6c.) Plaintiff's sister-in-law contacted Ramirez, who suggested that plaintiff write a letter of authorization. (Id.) Plaintiff wrote a letter authorizing his brother and two other persons to retrieve his property, but the motel staff still refused to turn it over. (Id. at 6d.) Plaintiff's brother left the authorization and his phone number with the motel, but no one ever contacted him. (Id.) Plaintiff still has not recovered his property. (Id.)

The Court liberally construes the Complaint to assert the following claims: excessive force claims against defendants Thayer and Garcia; claims against defendants Thayer, Garcia, Gonzalez, and Vasquez arising out of plaintiff's arrest; a due process claim against defendant Robles based on his imposition of an unwarranted special condition of parole; a due process claim against defendant Ramirez for introducing allegedly false and fraudulent evidence at plaintiff's parole revocation hearing; a due process claim against defendant Perez for violation of plaintiff's right to an impartial hearing officer at his parole revocation hearing; an ineffective representation claim against plaintiff's parole revocation counsel (Tehrany); and a due process claim against the owners or managers of Twin Towers Motel for deprivation of plaintiff's property. (Complaint at 6, 6e.)

Plaintiff seeks damages. (Complaint ...


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