United States District Court, N.D. California
LATONYA R. CALIP-FINLEY, Plaintiff,
COUNTY OF ALAMEDA, DISTRICT ATTORNEY, et al., Defendants.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND INTRODUCTION
MARIA-ELENA JAMES, Magistrate Judge.
On January 31, 2014, Plaintiff Latonya R. Calip-Finley filed a Complaint (Dkt. No. 1) and an Application to Proceed In Forma Pauperis (Dkt. No. 2). Plaintiff has consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Court GRANTS Plaintiff's application to proceed in forma pauperis and DISMISSES the complaint WITH LEAVE TO AMEND.
The following allegations are taken from Plaintiff's Complaint. On October 16, 2012, Plaintiff alleges that pursuant to an order by Officer Vreeland, Alameda police Officer Erik Klaus effected a traffic stop of her vehicle and arrested Plaintiff on a "warrantless warrant, " while she was on route to drop her children off at school. Compl. at 2. Officer Klaus transported Plaintiff to the Alameda Police department for interrogation. Id. There, Plaintiff alleges she was booked on an unknown felony charge. Id. Plaintiff posted bond later that day. Id.
On October 18, 2012, Plaintiff appeared before the Honorable Paul Delucchi in Department 12 of the Wiley W. Manuel Courthouse in Oakland, California. Id. At the hearing, the judge presented "an unsworn, unsigned, and unverified complaint of eight felony charges" and issued a stay away order. Id. Plaintiff alleges that she was not arraigned, but was ordered to appear before Judge Delucchi on October 25, 2012. Id. On October 25, 2012, Judge Delucchi transferred Plaintiff's case to Department 4 at the Rene C. Davidson Courthouse. Id. Plaintiff alleges that she was not afforded a preliminary hearing or arraignment within the statutory deadline. Id.
On November 2, 2012, Plaintiff appeared before Judge Panetta. Id. At that hearing, she waived formal arraignment, pleaded not guilty, and waived time for arraignment and the preliminary examination. Id. Plaintiff was ordered to return to Department 4. Id.
On November 30, 2012, Plaintiff appeared before Judge Thomas Reardon in Department 4. Id. at 3. Plaintiff returned to Department 4 on January 1, 2013, where the Court granted a motion for a conditional exam and issued a transcript order in Plaintiff's civil elder abuse hearing. Id.
On March 1, 2013, Plaintiff again alleges that she returned to court. Id. On April 5, 2013, the district attorney requested an extension of time with respect to a pending motion. Id.
On April 26, 2013, Plaintiff requested appointment of private counsel. Id. The request was granted on August 16, 2013. Id. On September 18, 2013, Plaintiff's counsel appeared in Department 4 and requested time to make a motion for substitution of counsel. Id. Plaintiff returned to court on October 4, 2013, for an unknown reason. Id. On December 13, 2013, the Court denied Plaintiff's counsel's request to withdraw. Id.
On January 24, 2014, Plaintiff appeared in Department 4 and was ordered to appear in Department 12 at the Wiley W. Manuel Courthouse for a preliminary hearing before Judge Reardon. Id. Plaintiff alleges 454 days passed between her arraignment and the date of her preliminary examination. Id. at 4.
The Complaint appears to allege two causes of action under the "1964 Civil Rights Act" and 42 U.S.C. § 1983 ("Section 1983") against the County of Alameda (the "County") and the District Attorney arising out of the alleged denial of Plaintiff's state statutory right to a speedy preliminary hearing pursuant to California Penal Code section 859b, and for violation of her constitutional due process right to a fair trial arising from the court's failure to make a determination on her motion to disqualify Judge Reardon from presiding over her criminal case.
APPLICATION TO PROCEED IN FORMA PAUPERIS
Pursuant to 28 U.S.C. § 1915, a district court may authorize the commencement of a civil action in forma pauperis if it is satisfied that the would-be plaintiff cannot pay the filing fees necessary to pursue the action. 28 U.S.C. § 1915(a)(1). Here, Plaintiff has submitted the required documentation, and it is evident from the application that her assets and income are insufficient to enable Plaintiff to pay the filing fees. Accordingly, the Court GRANTS Plaintiff's application to proceed in forma pauperis.
SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2)
A. Legal Standard
Notwithstanding payment of any filing fee or portion thereof, a complaint filed by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the Court if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing that the complaint be served by the United States Marshal pursuant to Federal Rule of Civil Procedure (Rule) 4(c)(2). Lopez, 203 F.3d at 1127; see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that the language of § 1915(e) (2)(B)(ii) parallels the language of Federal Rule of Civil Procedure ("Rule") 12(b)(6)). As the United States Supreme Court has explained, "[the in forma ...