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Avery v. Long

United States District Court, N.D. California

July 23, 2015

BELLARAE AVERY, aka TAMMY LYNN ASHWORTH, Plaintiff,
v.
KRISTIN LONG, et al., Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

DONNA M. RYU, Magistrate Judge.

On April 29, 2015, Plaintiff Bellarae Avery, aka Tammy Lynn Ashworth, filed the instant pro se civil rights complaint under 42 U.S.C. § 1983. She has also filed a motion for leave to proceed in forma pauperis, which will be granted in a separate written Order.

Venue is proper because the alleged conduct giving rise to Plaintiff's claims took place in Sonoma County, California which is located in this judicial district. See 28 U.S.C. § 1391(b). Her complaint is now before the court for review pursuant to 28 U.S.C. § 1915A.

This action has been assigned to the undersigned magistrate judge.

Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may conduct all proceedings in a case, including entry of judgment.[1] Appeal will be directly to the United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).

Plaintiff has consented to magistrate judge jurisdiction in this matter. Dkt. 1 at 4.

In her complaint, Plaintiff names the following as Defendants: Sonoma County Deputy Public Defender Kristin Long, Sonoma County Deputy District Attorney Chris Brown and Sonoma County Superior Court Judge Gary Medvigy. Id. at 2.

In a letter attached to her complaint, Plaintiff claims that in 2013 she was "accused of identity theft" and that Defendant Long "did not feel the need to defend [Plaintiff] because [Defendant Long] stated that she inherited a case that she did not want." Id. at 5. Plaintiff also attached a "list of what [her] attorney did not do for [her]." Id. at 6-7. Plaintiff does not include specific details about how the aforementioned charge of identity theft was resolved, but it seems that she entered a guilty plea pursuant to a plea bargain and was sentenced to serve jail time.[2] Id. Nevertheless, in the instant complaint, Plaintiff claims that she "didn't commit a crime" because there was "absolutely no proof against [her]." Id. at 5.

Plaintiff alleges that the deputy district attorney prosecuting her case, Defendant Brown, failed to "investigat[e] [her] case" and instead "took the word of someone that is known for their dishonesty." Id. Plaintiff adds that Defendant Brown committed slander against her and "bashed [her] in court regarding [her] records from years ago." Id.

Meanwhile, Plaintiff lists forty different allegations of misdeeds against her court-appointed attorney, Defendant Long, including the following: "refus[al] to investigate [Plaintiff's] case"; "refus[al] to negotiate [the] plea bargain" because Plaintiff's "[s]entence was extreme and... [amounted to] cruel and unusual punishment"; "refus[al] to withdraw the plea when [Plaintiff] requested it"; and "fail[ure] to correct sentencing credits for [Plaintiff's] release date." Id. at 6.

Finally, Plaintiff claims that she "tried to fire her attorney, only to be denied by the judge who knew full well that [her] attorney was no longer supposed to be defending [her] because [her] case was on appeal." Id. at 5.

Under specific relief requested, Plaintiff requests the "dismissal" of the criminal case against her in state court, as well as "punishment" for Defendant Long in the form of "disbarment or loss of employment... or both." Id. at 3. Plaintiff also alleges that she suffered "extensive" "mental trauma, " for which the court assumes she requests to receive compensation. Id. at 5.

DISCUSSION

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted ...


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