The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
COMPLAINT DISMISSED WITH LEAVE TO AMEND (ECF No. 26) FOURTH AMENDED COMPLAINT DUE WITHIN THIRTY DAYS
Plaintiff Thomas Farrugia ("Plaintiff") is a federal prisoner proceeding pro se in this civil rights action filed against state actors pursuant to 42 U.S.C. § 1983and against federal actors pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff originally filed this action on January 11, 2008. (ECF No. 1.) He has since filed three amended complaints (in June 2008, July 2009, and April 2010). (ECF Nos. 10, 17, & 26.) The amended complaint filed in July 2009 was dismissed with leave to amend on February 16, 2010. (ECF No. 20.)
No other parties have appeared in this action.
Plaintiff's Third Amended Complaint filed April 16, 2010 is now before the Court for screening. For the reasons stated below, the Court finds that Plaintiff has not stated a claim upon which relief may be granted.
II. SCREENING REQUIREMENTS
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).
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 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff is claiming a violation of his right to due process under the Fourteenth Amendment, though he categorizes his claim as one under the Fifth Amendment. Plaintiff names the following individuals as Defendants: Bill Lockyer, Attorney General for the State of California at the time the complaint was filed; Bureau of Narcotic Enforcement, California Board of Justice; Elizabeth A. Egan, Fresno County District Attorney; Benjamin B. Wagner, United States Attorney for the Eastern U.S. District of California, Fresno Division; and Kevin P. Rooney, Assistant U.S. Attorney.
Plaintiff alleges as follows: Defendant Rooney was the prosecutor during Plaintiff's criminal trial in June 1994. Plaintiff was charged with conspiring to manufacture a controlled substance and possessing listed chemicals to manufacture the controlled substance. The listed chemical, ephedrine, was found in three places: Lancaster, Oakley, and Fresno. The chemical found in each location was identified as a separate exhibit at trial, 3-A, 5-A, and G-1. After the trial began, Defendant Rooney switched identification markers on two of the exhibits. The Fresno substance was never tested by the prosecution's state chemist or federal chemists. The purity and weight are unknown and/or were not shown at trial. The Lancaster substance was tested and found to contain ephedrine. The purity and weight are unknown and/or were not shown at trial. Plaintiff has tried many times to gain access to the three exhibits; fifty-five requests appear on the docket. Plaintiff's previous counsel also attempted to gain access for testing. (ECF No. 26, p. 25; Pl.'s Compl. exh. 10.) Defendant Rooney responded that as of November 1, 1999, the seized material could not be located. (ECF No. 26, p. 26; Pl.'s Compl. exh. 11.) In response to another request by Plaintiff in August 2003 Defendant Rooney stated that exhibit G-1's location was unknown, but that 3-A and 5-A were in the custody of the California Department of Justice, Bureau of Narcotic Enforcement. (ECF No. 26, p. 27, Pl.'s Compl. exh. 12.)
According to Plainitff, Defendant Lockyer is named in this action because he has authority to admit or deny access to evidence. Defendant Egan is named in this action because she is the primary custodian of the evidence requested for testing. Defendant Wagner is named in this action because he has primary supervisory authority of Defendant Rooney's actions or inactions pertaining to the claims made herein.
Plaintiff seeks access to physical evidence used in his original criminal trial. Plaintiff would like access so he can test the substances found and determine the "true source" of the three powders, along with chemical composition, weights, PH level, buffers used, binding agents, and other adulterants that would distinguish the powders found at Fresno and Oakley from the Lancaster powder. The results, he claims, could ...