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Raymond M. Fisher v. Fresno Police Department

October 3, 2011

RAYMOND M. FISHER,
PLAINTIFF,
v.
FRESNO POLICE DEPARTMENT, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Raymond M. Fisher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed his complaint on September 19, 2011.

DISCUSSION

A. Screening Standard

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); 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. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).

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. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiff's Allegations

Plaintiff alleges that on November 1, 2007, Fresno Police Officer Hurdley stopped him while driving for an alleged traffic violation. He contends that Officer Hurdley engaged in racial profiling in violation of the Fourth Amendment. He also contends that Officer Hurdley placed a bag of cocaine at Plaintiff's feet and on the seat of the car. Plaintiff was charged for possession for sale and booked into Fresno County Jail. In January 2008, a jury found him not guilty of the charge and discharged him from the custody of the Sheriff. Plaintiff contends that Parole Agent Daljit Phoolka and his supervisor, Daniel Negrete, made a decision to abuse Plaintiff's rights under the Fifth Amendment and California Penal Code section 654 and falsely imprisoned him.

On or about January 9, 2009, Plaintiff was arrested for domestic violence. He went before the Board of Parole Hearings on February 10, 2009, and was sentenced to 12 months. Plaintiff contends that this sentence violates his rights under the Sixth and Fourteenth Amendments because the victim and witness were not present at the hearing.

On September 6, 2010, Plaintiff was arrested for possession of cocaine. On September 7, 2010, he was interviewed by Parole Agency Vince Meno while in custody at the Fresno County Jail. Plaintiff alleges that Agent Meno advised him of his eligibility for non-revokable parole and instructed him to report to the Parole Office for placement in an out-patient program.

On October 6, 2010, Agency Meno, at Plaintiff's request, interviewed him again at the Fresno County Jail. Plaintiff presented Agent Meno with documents pertaining to Plaintiff's parole. He contends that special conditions of his parole did not pertain to him and were arbitrary and capricious. Plaintiff alleges that these conditions violate his rights under the Fifth Amendment and California Penal Code section 654.

Finally, Plaintiff contends that the Fresno Police Department, in association with Parole Agents Phoolka, Meno and Negrete, violated California Penal Code sections 118.1 and 654, as well as the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.

Plaintiff seeks damages in the amount of ten ...


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