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Dearwester v. Scully

United States District Court, E.D. California

April 6, 2015

JAN SCULLY, et al., Defendants.


KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id . However, "[s]pecific facts are not necessary; the statement [of facts] need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overrruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

Named as defendants are Sacramento District Attorney Jan Scully, Deputy District Attorney Kindall, Office of the Sacramento County District Attorney, Sacramento County, Sacramento County Deputy Sheriff Meux, Sacramento County Sheriff's Department, Sacramento County Main Jail, Sacramento County Sheriff Scott Jones, California Department of Corrections and Rehabilitation ("CDCR"), Deuel Vocational Institution ("DVI") and California State Prison-Corcoran ("Corcoran").

Plaintiff alleges that he was held in the Sacramento County Jail as a pretrial detainee at the same time as Donald Ortez-Lucero, Richard Antonio Noguera and Christopher Strong. (ECF No. 1 at 7.) Ortez-Lucero, Noguera and Strong were accused of the September 14, 2007 double-homicide drug robbery which left 7 month old Sean Aquitana, Jr., and the baby's father, Sean Aquitana, Sr., slain by gunshots. (Id.) Plaintiff was held in the jail on an unrelated case. (Id.)

While housed at the jail, Noguera asked plaintiff to place a personal phone call for him. (Id.) After plaintiff placed the call on Noguera's behalf, defendants Scully, Kindall and Meux (i.e., the prosecution team), were alerted to plaintiff's potential involvement in the case against Noguera, Ortez-Lucero and Strong. (Id. at 8.) Plaintiff was then moved into a cell next to Noguera's cell. (Id.) Plaintiff alleges that unbeknownst to him, he had been recruited to be the prosecution's team reconnoteur. (Id.)

Plaintiff alleges that Noguera divulged incriminating information to him about his fabricating alibi evidence. (Id.) Noguera was released from the jail as a result of that evidence. (Id.) Plaintiff passed on to his (plaintiff's) attorney what Noguera had told him about fabricating alibi evidence. (Id.) The prosecution team then pulled plaintiff out of the jail to take the same information. (Id.)

Deputy Sheriff Her notified Strong about the meeting between plaintiff and the prosecution team. (Id. at 9.) Strong erroneously thought that plaintiff had debriefed on him, 3 i.e., Strong. (Id.) Plaintiff alleges that Deputy Her did not like plaintiff and set out this information knowing that Strong would act on it to cause plaintiff harm. (Id.) Strong began threatening plaintiff with physical harm and caused other inmates in plaintiff's housing area to do the same. (Id.) When plaintiff complained, he was told by floor officers to "handle it yourself." (Id.)

Plaintiff continued to complain about Strong's threats and actions, but the prosecution team kept plaintiff in close proximity to Strong. (Id.) Plaintiff was finally moved away from Strong after writing a grievance directly to defendant Meux. (Id.)

After being convicted, plaintiff was transferred into the custody of defendant CDCR in July 2013. (Id. at 10.) After arriving at California State Prison-Lancaster ("Lancaster"), plaintiff ordered a package for $931.97. (Id.) Plaintiff was interviewed by someone from the defense team after he arrived at Lancaster. (Id.) At that time, ...

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