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EDUARDO HERNANDEZ v. KEVIN M. LALLY

November 29, 2010

EDUARDO HERNANDEZ,
PLAINTIFF,
v.
KEVIN M. LALLY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Proceedings

Plaintiff, a federal prisoner proceeding pro se, filed a civil rights complaint against Paul Keenan ("Keenan"), an FBI agent, and Kevin M. Lally, an Assistant United States Attorney. Defendants are sued in their individual and official capacities. For the reasons described below, the complaint is dismissed with leave to amend for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

Plaintiff has three options: (1) Plaintiff may continue this action in this court by filing a document labeled "First Amended Complaint" within twenty-one (21) days of the date of this order. To withstand dismissal, the amended complaint must attempt to correct the deficiencies described below.

(2) Plaintiff may file a "Notice of Intent Not to Amend Complaint" within twenty-one (21) days of the date of this order. The timely filing of a notice of intent not to amend will be construed as an indication that plaintiff wishes to challenge dismissal of the complaint by seeking appellate review of this order in the Ninth Circuit Court of Appeals. If the court receives timely written notice of plaintiff's intent not to file an amended complaint, this action will be dismissed with prejudice, and plaintiff will be free to appeal the order of dismissal. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th Cir. 2004); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

(3) Plaintiff may do nothing in response to this order. If plaintiff does not respond to this order by filing either a timely amended complaint or a notice of intent not to amend, plaintiff will be deemed to have consented to the dismissal of this action with prejudice under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and failure to comply with this court's order. See Edwards, 356 F.3d at 1063-1066.

Plaintiff is cautioned that failure to file an amended complaint within the time permitted by this order may result in the dismissal of this action with prejudice.

Fact Allegations

Plaintiff alleges that Lally and Keenan violated his due process rights by presenting "false and misleading evidence" to the grand jury and by avoiding pointing out evidence favorable to plaintiff. [Complaint 5]. The complaint further alleges that Keenan "testified falsely under oath" before the grand jury and "took advantage of his position as a federal agent" in so testifying. [Complaint 3]. Plaintiff alleges that after 15 months of incarceration, he has been denied his right to "a fast and speedy trial." [Complaint 5]. Plaintiff also alleges that he has been denied eye glasses to correct "poor vision" and has "dental issues." [Complaint 5]. Plaintiff requests that the charges against him be dismissed, and that he be released from prison. [Complaint 5].

Discussion

On its own motion or the motion of a party, the court "shall" dismiss a complaint that seeks relief against a governmental entity or officer or employee of a governmental entity, or a complaint brought by a prisoner with respect to prison conditions, if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 42 U.S.C. § 1997e(c)(1)-(2). A claim is frivolous if it lacks an arguable basis in either law or fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). To withstand dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S.-, 129 S.Ct. 1937, 1949 (2009)(quoting and citing Bell Atlantic Corp. v. Twombly, 550 U.S.544, 556, 570 (2007)). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotation marks and citation omitted).

To determine whether a complaint states a claim sufficient to withstand dismissal, a court considers the contents of the complaint and its attached exhibits, documents incorporated into the complaint by reference, and matters properly subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-323 (2007); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The court must accept as true all factual allegations contained in the complaint. That principle, however, "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1950. A complaint filed pro se, however, is "to be liberally construed," and "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

Due process claims

Plaintiff seeks release from confinement on the grounds that: (1) his indictment by a grand jury violated his due process rights, rendering his imprisonment unlawful; and (2) the length of his imprisonment is ...


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