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Phillip Sanders v. Da Trace Fictgler

December 12, 2010

PHILLIP SANDERS,
PLAINTIFF,
v.
DA TRACE FICTGLER, DA KAY KRATT, DA LET SMITH, DA MARTIN JIMMIEZE, COURT PROBATION, MARIE TABACCHI, FRESNO COUNTY DISTRICT ATTORNEYS OFFICE AND COUNTY OF FRESNO,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS DISMISSING ACTION WITHOUT LEAVE TO AMEND

INTRODUCTION

Plaintiff, Phillip Sanders ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed the instant complaint on April 9, 2010. Plaintiff files this civil rights action pursuant to 42 U.S.C. §1983 based on violations of the Eighth, and Fourteenth Amendments of the United States Constitution. Plaintiff names Deputy District Attorney Trace Fictgler, Deputy District Attorney Kay Kratt, Deputy District Attorney Let Smith, Deputy District Attorney Martin Jimmieze,*fn1 Probation Officer, Marie Tabacchi, the Fresno County Probation Department,*fn2 the Fresno County District Attorney's Office, and the County of Fresno as defendants ("Defendants").

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or 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. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiff's Allegations

Plaintiff's complaint is rambling and incoherent. Although it is unclear, Plaintiff appears to allege he was unlawfully charged with the same criminal offenses on two different occasions in 2004 in the Fresno County Superior Court. Complaint at pgs. 1-2. As a result of these charges, Plaintiff contends that an excessive bond was imposed and his Eighth and Fourteenth Amendment rights were violated. Id. He also alleges that his criminal case was improperly heard before a commissioner rather than a judge and that his attorney had a conflict of interest during the hearing. Complaint at pgs. 2 and 4. Finally, Plaintiff alleges that the probation office improperly attempted to violate his probation based on new charges. Complaint at pg. 5. Plaintiff brings this action against all defendants in their individual and official capacities. Complaint at pg. 12.

As a preliminary matter, many of the documents Plaintiff refers to in his Complaint were not filed with the Court. The Court summarizes the documents Plaintiff has filed in an attempt to understand Plaintiff's incoherent Complaint. Although Plaintiff asserts that his bond was raised because he was charged with the same criminal charges twice, a review of the documents demonstrates that Plaintiff actually was charged with different offenses resulting in changes in his custody status as well as the required bond amounts.

Conviction documents attached to Plaintiff's Complaint reveal that Plaintiff was convicted of being a felon in possession of a firearm, in violation of California Penal Code § 12021 in the Fresno County Superior Court on April 13, 2004 , Case # F02906572-3. Complaint at pg. 16. Plaintiff was sentenced to three years in prison with a one year enhancement pursuant to California Penal Code 667.5(b), for a total sentence of four years. Id.

His sentence was suspended and he was committed to 300 days in the county jail to be followed by three years of probation. Id. Plaintiff was advised that he would be sent back to prison for the four year term if he violated probation. Complaint at pgs. 16 and 17 at lines 5-14. At the time of his sentencing, Plaintiff was not in custody. Complaint at 16.

Shortly thereafter, the Fresno County Probation Office realized that Plaintiff allegedly had other felony charges pending in the Fresno County Superior Court at the time of he was sentenced. Complaint at pg. 23. These felony charges included a violation of California Penal Code § 245, assault with a deadly weapon (Case No. F04902248-4),*fn3 and a violation of California Penal Code ยง 136.1, intimidation of a witness (Case No. F04902881-2). Id. The alleged assault with a deadly ...


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