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Donald Khinoo v. City of Turlock

January 25, 2012

DONALD KHINOO,
PLAINTIFF,
v.
CITY OF TURLOCK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT AND GRANTING 30 DAYS LEAVE TO AMEND

I. INTRODUCTION

On August 11, 2011, Plaintiff Donald Khinoo ("Plaintiff") filed this action against Defendants City of Turlock, the Turlock Chief of Police, Officer Timothy Redd, Officer J. Rodriguez, Officer John Powell, Officer Mariah Diaz, Officer J. Baweurn, and the Police Department for the City of Turlock (collectively, "Defendants"). For the reasons set forth below, Plaintiff's complaint is DISMISSED without prejudice and Plaintiff is granted leave to amend.

II. FACTUAL BACKGROUND

Although the factual assertions are not clearly set forth in Plaintiff's complaint, it appears that on an unspecified date police officers from the City of Turlock, led by Officer Timothy Redd ("Officer Redd"), entered the "Khinoo home." (Doc. 1, ¶ 1.) The Khinoo home appears to be the home of Plaintiff and his daughter, Shelby Khinoo ("Shelby"), who is not a party to this action.*fn1

(Doc. 1, ¶ 2.) Purportedly, the police officers were searching for "probationer Fonseca," whom officers claimed lived at the Khinoo home but who allegedly did not reside there.*fn2 (Doc. 1, ¶¶ 3-5.) Plaintiff claims that the officers lacked reasonable belief for their assertion that probationer Fonseca lived in the Khinoo home, as court records allegedly indicated that Fonseca either resided with his mother in Turlock or with his brother in the Bay Area. (Doc. 1, ¶ 4.)

Plaintiff alleges that the officers did not have a search warrant to enter the Khinoo home. (Doc. 1, ¶ 10.) Officer Redd allegedly testified, during an unspecified hearing in an unspecified court, that Plaintiff's daughter, Shelby, consented to a search of the Khinoo home and escorted officers into the residence. (Doc. 1, ¶ 2.) Shelby allegedly testified that she never granted consent; purportedly she filed a "citizen's complaint" against Officer Redd for "wrongful entry." (Doc. 1, ¶ 2 (emphasis omitted).) Shelby's testimony was allegedly corroborated by Officer Briggs, who purportedly "gave sworn testimony that Shelby did not escort the officers into the Khinoo residence."*fn3 (Doc. 1, ¶ 6.)

While it is unclear what precisely transpired after the police officers entered the Khinoo residence, it appears that they searched Plaintiff's bedroom. Plaintiff alleges that if the officers "believed Fonseca was a resident of the Khinoo residence, [they] would have chosen to initially enter the bedroom of Shelby Khinoo, but instead Officers immediately upon entry unjustifiably commenced the raid in (nonprobationer) Donald Khinoo's personal bedroom." (Doc. 1, ¶ 56 (emphasis omitted).) Plaintiff does not clearly set forth what took place after police officers searched the Khinoo residence or Plaintiff's bedroom. (See generally Doc. 1.)

Plaintiff also randomly includes in his complaint a page of allegations regarding court proceedings in which the Honorable Judge Hurl Johnson of an unspecified court allowed a witness whom he knew was not Officer Redd to testify as Officer Redd. (Doc. 1, p. 22.) Plaintiff further alleges that Judge Johnson had a conflict of interest since he had presided over the Fonseca case and that the Judge had agreed to "step down." (Doc, 1, p. 22.) However, it is not clear what proceedings Plaintiff is referring to in his complaint, and whether these court proceedings were against Fonseca, Plaintiff, or someone else.

Plaintiff's complaint states causes of action for (1) violation of 42 U.S.C. § 1983; (2) negligent supervision, training, and control; (3) conspiracy; (4) abuse of process; (5) doctrine of spoliation; (6) intrusion as invasion of privacy; and (7) intentional, or alternatively negligent, infliction of emotional distress. (Doc. 1.)

III. DISCUSSION

A. Screening Requirement

In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. ยง 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the ...


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