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Keith Antone Neal v. Fresno County

September 13, 2012

KEITH ANTONE NEAL,
PLAINTIFF,
v.
FRESNO COUNTY, DEFENDANT.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM (Doc. 15)

I. Procedural History

Keith Antone Neal ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis, in this civil rights action pursuant to 42 U.S.C. § 1983. On December 8, 2010, Plaintiff filed his original complaint. Doc. 1. On December 20, 2010, Plaintiff filed the first amended complaint. Doc. 7. On March 8, 2011, Plaintiff submitted a second amended complaint which is currently before the Court. Doc. 15.

II. Screening Requirement

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, 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 Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In determining whether to dismiss an action, the Court must accept as true the allegations of the complaint in question, and 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, 421-22 (1969); Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

III. Plaintiff's Complaint

Plaintiff is currently a state prisoner at Avenal State Prison (ASP) in Avenal, California. In the complaint, Plaintiff names "Fresno County Officials" the defendants in this action. Doc. 15 at

1. Plaintiff seeks monetary damages. Doc. 15 at 5.

Plaintiff alleges that he was arrested on stipulation of violating penal code section 290. Doc. 15 at 1. On March 6, 2010, at around 11:30 p.m. Plaintiff was a passenger in a car that was pulled over for a traffic stop. Doc. 15 at 2. A Caucasian woman police officer tapped on his passenger window and asked Plaintiff if he was on probation or parole and Plaintiff told her that he was not. Doc. 15 at 2. The officer accused Plaintiff of lying and Plaintiff responded "[why] because I am African-American!" Doc. 15 at 2-3. Then the officer opened the passenger door and took Plaintiff out, twisted Plaintiff's right arm and patted him down. Doc. 15 at 3. After checking Plaintiff's driver's licence he was informed that he had a warrant for his arrest, which Plaintiff did not know until that moment. Doc. 15 at 3.

Plaintiff was taken to the Fresno County Jail by arresting officer M. Forian and was booked by Officer T. Simms. Doc. 15 at 3. According to Plaintiff, an arrest report was not made and his Miranda rights were violated. Doc. 15 at 3. Plaintiff argues that he was searched and seized without probably cause before the officers even discovered there was a warrant for Plaintiff's arrest. Doc. 15 at 4. Plaintiff further argues that he was unlawfully arrested. Doc. 15 at 4.

Plaintiff states that he had to stand trial on August 10, 2010, for violation of penal code section 290. Further, Plaintiff states that he did not receive a fair trail and he states that he is not a "290 registrant" and the judge did not consider the proper evidence due to a witness being on vacation. Doc. 15 at 5. According to Plaintiff, his former parole officer, Anthony King did a search and found no requirement for Plaintiff to file under code 290. Doc. 15 at 5-6. Plaintiff also states that there are two social security numbers with his name and suggests that his was misidentified as a sex offender required to register pursuant to penal code 290. Doc. 15 at 7. Plaintiff argues that he was misidentified and such misidentification violates his due process. Doc. 15 at 7. Plaintiff also states that he was not allowed to confront witnesses which violated his Sixth Amendment right. Doc. 15 at 8.

IV. Analysis

A. Habeas

"[A] state prisoner's ยง 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-2 (2005). Where, as here, "success in a . . . [section] 1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence." Muhammad v. Close, 540 U.S. 749, 751 (2004) (citing to Heck v. Humphrey, 512 U.S. 477 (1994)); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (applying Heck to a prison disciplinary hearing where ...


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