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DiBartolomeo v. Jimenez

United States District Court, E.D. California

July 6, 2016

JOSEPH ANTHONY DiBARTOLOMEO, Plaintiff,
v.
LINDA JIMINEZ, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is proceeding, without counsel, with this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). After carefully considering the record, the undersigned recommends that defendants’ motion be granted in part and denied in part.

         II. Legal Standard for Motion to Dismiss Brought Pursuant to Federal Rule of Civil Procedure 12(b)(6)

         Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

         A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         III. Plaintiff’s Claims

         A. Clarification of Claims

         This action proceeds on the original complaint against defendants San Joaquin County Deputy Sheriffs Jimenez and Taiariol. (ECF No. 1.) In the order screening the complaint, the undersigned found that plaintiff stated a potential malicious prosecution claim against defendant Jimenez and a potential excessive force claim against defendant Taiariol. (ECF No. 7.)

         After reviewing the complaint while considering defendants’ motion to dismiss, the undersigned finds that plaintiff raises the following additional claims against defendant Jimenez: 1) alleged violation of the Fourth Amendment based on an allegedly illegal search of cell phone records; 2) allegedly suggestive photo line-up; and 3) allegedly false testimony to the grand jury. Defendants’ motion to dismiss addresses these claims, although defendants do not directly address whether defendant Jimenez’s alleged conduct violated the Fourth Amendment.

         B. Allegations in the Complaint

         Plaintiff alleges that on October 11, 2013, a homicide occurred in Acampo, California. (ECF No. 1 at 4.) Defendant Jimenez conducted the initial investigation. (Id.)

         On January 16, 2014, defendant Jimenez obtained a warrant for a cell phone tower dump for all cell phone providers in the Acampo area. (Id.) This warrant was issued for all cell phone towers in the Acampo area for October 11, 2013, between 3:00 a.m. and 4:00 a.m. (Id.) Plaintiff alleges that defendant Jimenez used this data to pinpoint several cell phones that were active on the morning the homicide took place. (Id.)

         Plaintiff alleges that defendant Jimenez identified David Smith as owning one of the phones in use at the relevant time. (Id.) Plaintiff alleges that this David Smith did not provide a current address and that there were 218 David Smiths in San Joaquin County. (Id.) Plaintiff’s name came across Smith’s phone in November 2013, i.e., one month after the crime took place. (Id.)

         Because plaintiff’s name came across David Smith’s cell phone, and plaintiff was easier to locate than the 218 David Smith’s in San Joaquin County, defendant Jimenez obtained plaintiff’s booking photo. (Id.) Defendant Jimenez showed plaintiff’s booking photo to an eyewitness of the crime all by itself, thus implicating plaintiff in the crime and suggesting that plaintiff was “the person.” (Id. at 4-5.)

         Plaintiff alleges that on April 2, 2014, a warrant was issued for plaintiff’s arrest for the October 2013 Acampo murder. (Id. at 5.) On ...


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