Wilburn v. Bratcher

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL FACTS

         The 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.

         The 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.

         II. FACTUAL BACKGROUND

         1. General Allegations

         In his 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^[1] 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.

         Plaintiff 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.

         As to 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.

         2. Facts Alleged

         Plaintiff 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 ¶¶ 25-26, 31.

         As a 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.

         As to 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.

         Ultimately, 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.

         Plaintiff 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.

         Police 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.

         Public 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.

         Doe 8 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.

         In 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.

         The 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).

         The 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.

         Ultimately 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.

         3. Damages Sought.

         Plaintiff 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 ...