The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff paid the filing fee and filed a complaint pro se under 42 U.S.C. section 1983 against the following defendants: Edmund G. Brown, Governor of California; Kamala D. Harris, Attorney General of the State of California; Steve Cooley, Los Angeles County District Attorney; the Director of the California Department of Corrections and Rehabilitation ("CDCR"); C.P. Andicochen, a parole supervisor; and J. McKeller, a parole officer. Defendants are sued in their official capacity for injunctive relief.
Because the complaint fails to state a federal claim on which relief can be granted, it is dismissed with leave to amend. 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 factual and legal defects 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 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 timely 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 order. See Edwards, 356 F.3d at 1063-1066.
The complaint and attached exhibits allege as follows. Plaintiff was "falsely arrested in October 2010 for political reasons." [Complaint 9-10]. Plaintiff was a community activist who was "leading the attack against the City of Bell, seeking election recalls." [Complaint 6]. The City of Bell obtained a restraining order using "false charges" against plaintiff to silence him and "take the momentum" out of the recall movement. In addition, plaintiff was charged with making a criminal threat against the clerk of the City of Bell when requesting election recall documents. On July 6, 2011, defendants "forced" plaintiff, aged 64, to accept a plea deal "to save himself from a process that operates under an unlawful policy that misuses the 3-strikes law . . . " [Complaint 6]. Defendants alleged that plaintiff had two prior strikes "they could never prove" in order to increase the amount of the bond that plaintiff was required to post to make bail. [Complaint 6].
During the preliminary hearing on that charge, City of Bell officials gave false testimony to justify the restraining order and ensure that plaintiff was banned from city council meetings. A commissioner rather than a judge presided over the preliminary hearing. The commissioner lacked jurisdiction to issue a "holding order," which therefore was void. Plaintiff received ineffective assistance of counsel during the preliminary hearing. [Complaint 7].
After plaintiff was arraigned in superior court, he moved to proceed in propria persona, for discovery regarding the prior strike allegations, to reduce his bail, and to dismiss the charges against him. Operating under an "unlawful policy," defendants "ignore[d] the court rule requiring them to respond to motions filed . . ." [Complaint 7]. "[R]elying on their normal procedure," defendants told plaintiff he was facing a 35-year prison term and "called [plaintiff's] 'bluff' because of serious health issues, forc[ing] him into taking" a 3-year plea bargain. [Complaint 7]. Defendants have a "ministerial duty to correct the error made in the preliminary hearing . . . ." [Complaint 9].
Once plaintiff was incarcerated, defendants "ignored the doctor's orders" for a lower tier and bottom bunk. Defendants housed plaintiff with gang members who beat him so badly that plaintiff now walks with a cane. [Complaint 8]. Plaintiff served nineteen months in prison. [Complaint 10].
Plaintiff filed a petition for a writ of habeas corpus to vacate the judgment against him. The state procedures are inadequate to protect federal rights, and the plaintiff presently is exhausting his state remedies to satisfy federal habeas jurisdictional requirements. [Complaint 8]. At the time plaintiff filed his section 1983 complaint, his habeas petition was pending before the California Supreme Court. [Complaint 10]. The lower state courts denied his petition and "failed to issue show cause order[s] to allow any factual development." [Complaint 10 & Exhibits A through C].
Defendants have imposed "'high control' parole reporting" requirements on plaintiff. Plaintiff must report approximately nine times a month and attend meetings. Defendants McKeller and Andicochen also make plaintiff's daughter "jump through hoops" in order to make her withdraw her support from plaintiff and to force plaintiff to move out of her house, in order to ...