United States District Court, E.D. California
TERRENCE L. WILBURN, Plaintiff,
GARREN BRATCHER, et al., Respondents.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
plaintiff filed a First Amended Complaint on May 4, 2016. ECF
No. 61. The City of Sacramento and several of the defendants
associated with it filed a Motion to Dismiss that Complaint
on May 16, 2016. ECF No. 63. The Motion was originally
scheduled for hearing on May 18, 2016, was rescheduled to
June 23, 2016, ECF No. 64, upon receipt of a Motion to
Dismiss filed by defendant Garren Bratcher filed on May 18,
2016. ECF No. 66. That June 23, 2015 hearing date was vacated
by an Order to Show Cause issued by the court on June 16,
2016. ECF No. 72.
amended complaint is a voluminous document filled with many
conclusory statements regarding conspiracy and speculations
about an arrest which even plaintiff concedes was based on
his non-registration as a sex offender (although plaintiff
states reasons for his not being registered). The court, now
having reviewed all of the documents and being fully apprised
of the facts and law asserted in the pleadings and memoranda
before it, has determined that oral argument of these matters
would not be of material assistance to the court and
therefore enters this Findings and Recommendations/Order.
First Amended Complaint, ECF 61, plaintiff purports to bring
a 42 U.S.C. § 1983 action against the City and County,
District Attorney, Public Defender, Sherriff's
Department, Police Department and 36 individual Sacramento City
and County employees for infringement of his Fourth, Fifth
and Fourteenth amendment rights. The underlying infringements
for which he seeks to recover damages are alleged to be false
arrest, false imprisonment, malicious prosecution,
discrimination, assault, battery, conspiracy and infliction
of emotional distress.
also includes a number non-institutional employees as
defendants, Garren Bratcher and Does 1-4 are employees of
Loaves and Fishes, Gil Manalo, Deputy Hester and Does 8-10,
are both employees of the County and “duly elected or
appointed officials.” He also names the Sacramento
Police Chief (Samuel D. Somers, Jr.) and County Sheriff
(Scott R. Jones), District Attorney Ann Marie Schubert and
several Assistant DAs plus several Deputy Public Defenders
and Superior Court Judge Geoffrey A. Goodman. Does 11-16 are
SAFE officers. Finally he identifies Doe 18 as a one-time
inmate at the Sacramento County Main Jail.
the institutional defendants, plaintiff does conclude that
all actions of which he complained were taken “pursuant
to customs, policies and practices of the City and
County” by individuals acting under color and authority
of law. Id. at ¶ 20.
was arrested in August 2002 and ultimately pled NOLO or
guilty to a violation of Cal. Penal § 220 -- Assault
with intent to commit mayhem or specified sex offenses,
assault of a person under 18 with intent to commit specified
sex offenses, all in the commission of a first degree
burglary -- thereby requiring him to register as a sex
offender under Section 290. He went to prison and was paroled
on May 7, 2004 at which time he also entered a drug and
alcohol program. He was discharged from parole on May 7,
2007. Id. at 24. Plaintiff attempted to register on
several occasions, but was turned away by the SAFE unit
repeatedly and, oddly, apparently didn't get registered
at all until November 26, 2013. Id. at ¶¶
result of the foregoing plaintiff asserts that Penal Code
§ 290 violates the Fourteenth Amendment insofar as he is
potentially faced with a felony (willful failure to register)
or a misdemeanor (failure to register no less than every 30
days as a transient), but the system doesn’t work.
Id. at ¶¶ 27-28.
Loaves & Fishes, Larry the green hat, Doe 1,
wouldn’t let him bring his bicycle frame into
Friendship Park, characterizing it as a bicycle. The two had
words, and plaintiff was restricted from entering the Park by
defendant Bratcher, and Bratcher later refused to assist him
with a letter to regain access. Other Loaves and Fishes Does
would not assist either, so he’s suing them. Ultimately
he was banned from the North C Street property which
prevented him from being “seen” at Mercy Clinic
on 2/3/14 [apparently located at the same facility as Loaves
and Fishes]. Id. at ¶¶ 29-30. When
plaintiff was finally able to go to the Clinic on 2/19/14,
Bratcher called the police to report he was in the area, and
some sort of investigation ensued for no good reason.
Id. at ¶¶ 30-32.
various Police defendants detained him with no probable
cause, handcuffed him and took him to jail on or about
February 20, 2014 on PC 290.12 (annual registration) felony
and 290.11 (transient registration) misdemeanor charges (not
to exceed 1 year Jail, second offense 16 mo. to 2-3 years).
He is apparently also claiming they harassed him and
falsified their reports. Id.
claims Bratcher kept reporting him to the police because
he’d called Bratcher a “renege” for not
helping earlier and anyone who assisted Bratcher is
(obviously) in a conspiracy with him to harass plaintiff.
defendants are alleged to have continued to
“investigate” him but gave no plausible reason
for doing so and failed to report their activities. This
ongoing investigation is alleged to constitute an undefined
Constitutional violation. Id. ¶ 34.
defendant Miller is alleged to have directed plaintiff not to
plead or answer the judge's questions at an arraignment
on 2/24/14 which resulted in his being in jail for 14 days
awaiting a preliminary hearing, id. at ¶¶
35-36, citing Youngblood v. Gates, 200 Cal.App.3d
1302, 1319 (1988). Defendants West and Huang allowed a charge
of felony to be brought against plaintiff but presented no
evidence of the willfulness required for that crime, then
tried to force him to plead to a lesser to escape the threat
of a felony conviction. Id. at ¶ 38.
refused to remove defendant from a cell shared with Doe 18
when Plaintiff claimed he was in danger which resulted in
plaintiff being and assaulted moments later as a result of
which he suffered injuries that required medical treatment.
Id. at ¶ 37.
addition plaintiff raises many issues regarding the way his
trial was conducted, both in terms of the performance of his
public defense counsel before he prevailed in a
Faretta motion, see Faretta v. California,
422 U.S. 806 (1975): Speedy Trial issues, see
Cal.Pen.Code § 1382; People v. Giron-Chamul, 245
Cal.App.4th 932, 955 (2016), suppressing testimony that
should have exonerated him, being denied a Marsden hearing,
see People v. Marsden, 2 Cal.3d 118 (1970), and
withholding of evidence that would have proven he did not
willfully fail to register which would have reduced the level
of charge against him from a felony to a misdemeanor.
totality of is claims are: (1) First Claim: Equal protection
(42 U.S.C. § 1983); (2) Second Claim: Conspiracy to
interfere with civil rights (42 U.S.C. § 1985.3); (3)
Third Claim: Negligent/intentional failure to prevent
deprivation of rights. (42 U.S.C. § 1986); (4) Fourth
Claim: False arrest and false imprisonment (Cal. Govt Code
820.4); (5) Fifth Claim: Malicious Prosecution and Abuse of
Process; (6) Sixth Claim: Denial of Civil
Rights/Discrimination (Cal. Civil Code §§ 51, 51.5,
51.7, 52; (7) Seventh Claim: Failure to Discharge Mandatory
Duty (Cal. Govt Code 815.6); (8) Eighth Claim: Negligence
(Cal. Govt Code 815.2); (9) Ninth Claim: Assault and Battery;
(10) Tenth Claim: Conspiracy; (11) Eleventh Claim:
Intentional or Reckless Infliction of Mental Distress; (12)
Twelfth Claim: Negligent Infliction of Mental Distress; (13)
Thirteenth Claim: Improper use of Internet Web Site (Cal.
Pen, Code § 290.4); (14) Fourteenth Claim: Legal
Malpractice (Lawyers); and (15) Fifteenth Claim: Breach of
Fiduciary Duty (Lawyers).
plaintiff asserts that this chain of behaviors collectively
demonstrates fraud, corruption, and conspiracy resulting in a
violation of his right to due process and equal protection
under both the California and federal constitutions.
Id. at ¶¶ 38-45.
the district attorney, who is a named defendant, dismissed
all charges before trial since, according to the
“record” it was stated that “we got him for
about all the time that we would if he was convicted.”
Id. at ¶ 53.
pleads for general damages, civil penalties not exceeding
$25, 000 per offense for a total of $375, 000, and punitive
damages. He also alleges a right to emotional distress
damages caused by his humiliation and his inability to attend
a schedule Social Security benefits hearing, being prevented
from attending a family funeral and ...