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Thomas Farrugia v. Kevin P. Rooney

October 26, 2012



Currently before the court is a document titled "Fourth Amended Complaint," (hereinafter the "4AC") which was filed by plaintiff Thomas Farrugia (hereinafter, "Farrugia" or "Plaintiff") on June 6, 2011. Doc. # 34. Plaintiff's 4AC represents the most recent of many prior attempts by Plaintiff to secure samples of "white powders" currently in the custody of the California Bureau of Narcotic Enforcement for "complete and accurate testing." The instant action is styled as an action pursuant to 42 U.S.C. § 1983 with respect to the state Defendants and as a claim pursuant to Bivins v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) with respect to the federal Defendants. The court notes this action arises out of Plaintiff's conviction in 1992 to one count each of conspiracy to manufacture methamphetamine and possession of a listed substance, ephedrine. Because this action is brought by a plaintiff currently in federal custody against governmental officers, the court screens the complaint in the absence of any response by the governmental defendants. For the reasons that follow, the court will determine that Plaintiff's 4AC fails to state a claim upon which relief can be granted.


The factual basis giving rise to the criminal case against Plaintiff has been summarized in numerous prior filings by the court. An extensive summary may be found in the court's order denying Plaintiff's motion for relief pursuant to 28 U.S.C. § 2255, filed as Document 823 in case number 1:92-cr-5164. The following is a somewhat abbreviated version of facts alleged by Plaintiff and previously set forth in court documents.

The underlying criminal case, 92cr5164, charged five defendants with violations pertaining to the manufacture of methamphetamine and the possession of ephedrine, a necessary precursor in the manufacture of methamphetamine. Three of the five defendants were convicted by plea of guilty and two defendants, Donald Kapperman and Plaintiff were convicted in separate jury trials. For purposes of the present action, the facts pertinent to Plaintiff's instant action revolve around three containers of "white powdery substance" that were recovered during the investigation of the criminal case. At the outset of the investigation, Detective Toby Rien of the Fresno County Sheriff's Office sold a 55 pound "tin" of pure ephedrine to co-defendant Morgan, who resided in Fresno, California. Following the sale to Morgan, co-defendant Kapperman met with Morgan in Fresno and then drove to Lancaster, California, while being followed by law enforcement officers. After Kapperman left Morgan, Morgan reported to Rien that Kapperman was in possession of one-half of the 55 pounds of pure ephedrine that Morgan had purchased from Rien. Sometime after Kapperman returned to his residence in Lancaster, police secured and searched the residence and an out-building which was found to contain a variety of laboratory glassware, an assortment of chemicals, a notebook and other documents, and a box of "white powdery substance." Some of the documents found at the Lancaster residence tied Plaintiff to other co-defendants and contained information indicating Plaintiff had knowledge pertaining to the manufacture of methamphetamine. Police searched Plaintiff's residence in Oakley, California and there seized another box of "white powdery substance" that turned out to be a mix of chemicals containing about 45% ephedrine. Thus, this action concerns three containers of suspected ephedrine. To avoid confusion these are referred to as the Fresno Substance, the Lancaster Substance and the Oakley Substance. There appears to be no dispute that the Fresno Substance consists of about 25 pounds of pure ephedrine which was provided by the California Bureau of Narcotics as "bait" in the investigation that lead to the criminal charges against the five Defendants. At trial, the government represented that the Lancaster Substance represented the other 25 pounds of the Fresno Substance, however Farrugia disputed this and presented a chemical analysis by his own expert that indicated the Lancaster Substance was not pure ephedrine, but was a mix containing about 55% ephedrine and the balance of other unidentified chemicals.

At the time of trial, Plaintiff sought to obtain a more complete testing of the Oakley and Lancaster Substances to prove that those substances are different from one another and different from the Fresno Substance. Plaintiff's attorney was able to obtain chemical testing but not to the level of specificity that Plaintiff desired. Basically, the chemical testing that Plaintiff was able to obtain showed that neither the Oakley or Lancaster Substances contained any methamphetamine, that both the Lancaster and Oakley Substances contained somewhere between 40 and 50% ephedrine and a mix of other, unidentified chemicals, and that the Oakely and Lancaster Substances were not identical to each other, It has consistently been Plaintiff's contention that a complete forensic analysis of the pH, binders and adulterants present in the Lancaster and Oakley Substances will establish Plaintiff's contention that the Lancaster Substance was not the same material as the Fresno Substance and that the Oakley and Lancaster Substances were different from each other. Plaintiff contends that additional, and more detailed chemical testing will provide information from which Plaintiff can assert a claim for actual innocence. Plaintiff does not present a claim of actual innocence in the present action or indicate how the establishment of his contentions with regard to the composition of the Lancaster and Oakely Substances would lead to a finding of actual innocence.


Plaintiff was convicted by jury trial in 1994 of a single count of conspiracy to manufacture methamphetamine and possession of a listed substance and aiding and abetting. Judgment was entered on November 15, 1994. An appeal was taken and the conviction and sentence were affirmed. United States v. Farrugia, 1996 WL 403026 (9th Cir. 1996). Of some significance to this action, Plaintiffs' direct appeal did not raise any issues pertaining to the testing of the Lancaster and Oakley substances. Plaintiff also collaterally challenged his conviction and sentence by way of motion pursuant to 28 U.S.C. § 2255 in civil case number 98-cv-5252. Plaintiff's 2255 motion raised, inter alia, the issue of the completeness of testing of the Lancaster, Fresno and Oakley Substances in the context of a claim of ineffective assistance of counsel. Plaintiff's 2255 was denied in its entirety by an order filed on October 10, 2000. Doc. Number 823. The instant case action commenced on January 11, 2008.

On January 24, 2011, the court dismissed Plaintiff's Third Amended Complaint in the instant action and granted leave to amend (the "January 24 Order"). In the January 24 Order, the court noted that Plaintiff had filed fifty-five prior motions or requests seeking production of samples of the three Substances for the purpose of chemical testing. The number of motions or requests now stands at something closer to sixty. The instant 4AC was filed on June 6, 2011. Since the filing of his 4AC, Plaintiff has restated his request for relief in the form of a Motion for Injunctive Relief, filed on August 13, 2012, and a request for "Expedited Release of Untested Trial Exhibits 5-A and G-1," also filed on August 13, 2012.


The court is required to screen complaints brought by prisoners seeking relief against a governmental entity of 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," or 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. § 1915(e)(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. § 1915A(b)(2)(B)(ii).

A complaint fails to state a claim upon which relief can be granted if there is a failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). A complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").


It is important to place Plaintiff's current action in the broader context of Plaintiff's ongoing efforts to force the entity in custody of the Oakley and Lancaster Substances to produce samples for extensive chemical analysis. Essentially the same claim was presented by Plaintiff in his motion for habeas relief pursuant to 42 U.S.C. § 2255 in the context of a claim for ineffective assistance of counsel. See Doc. # 823 of Case Number 92cr5164 at 18:1 - 21:12. In denying Farrugia's claim of ineffective assistance of counsel with regard to the testing of the Oakley, Fresno and Lancaster Substances, the court found that Farrugia's attorney was able to establish what Farrugia sought to show with regard to the Oakley and Lancaster Substances -- that neither contained methamphetamine or pure ephedrine but were a mix of chemicals containing about half ephedrine and half other chemicals. Because the court decided Farrugia's claims regarding the Substances on the merits, he may not raise the issue again on a successive habeas claim. See Kuhlmann v. Wilson, 477 U.S. 436 (1986) (a court may not reach the merits of successive claims that raise grounds identical to grounds heard and decided on the merits in a previous petition).

"A motion under § 2255 is generally the exclusive remedy for a federal prisoner who seeks to challenge the legality of confinement, Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012), and consequently an inmate who unsuccessfully petitions under § 2255 is generally barred from bringing claims previously presented and decided on the merits. Kuhlman, 477 U.S. at 451. Under exceptional and rare circumstances a petitioner may avoid the bar against successive claims where the "ends of justice" so demand. Id. Section 2255(e) provides a limited "escape hatch" in cases where the remedy under section 2255 is "'inadequate or ineffective to test the legality of [the petitioner's] detention.'" Muth, 676 F.3d at 818. This circuit has held that "a § 2241 petition is available under the 'escape hatch' of § 2255 when a petitioner (1) makes a claim of actual innocence and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). The Ninth Circuit has established that the standard for pleading a claim for actual innocence is the standard set forth in Bousley v. United States, 523 U.S. 614 (1998). Muth, 676 F.3d at ...

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