United States District Court, E.D. California
JAMES E. SMITH, Plaintiff,
RUDY MIRELEZ, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DISMISS CASE WITHOUT
LEAVE TO AMEND (ECF NO. 10) FOURTEEN-DAY DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is proceeding pro se and in forma pauperis in this action
brought pursuant to 42 U.S.C. § 1983. Plaintiff's
original and First Amended Complaints were dismissed with
leave to amend on January 12, 2016, and February 26, 2016,
respectively. (ECF Nos. 6, 9.) In the last screening
order, Plaintiff was given one final opportunity to state a
claim. His November 9, 2016, Second Amended Complaint is now
before the Court for screening.
forma pauperis statute provides, “Notwithstanding any
filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court
determines that . . . the action or appeal . . . fails to
state a claim upon which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii).
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief . .
. .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations
are not required, but “[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) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Id. Facial
plausibility demands more than the mere possibility that a
defendant committed misconduct and, while factual allegations
are accepted as true, legal conclusions are not. Id.
brings this action against Defendants Officer Rudy Mirelez,
Devan M. Portillo, Prosecutor Eugene Action, Natalie N.
Gilbertson, Steve Dahlem, and the Mariposa County Council.
allegations may be fairly summarized as follows:
alleges that on June 27, 2013, he was arrested for
unspecified conduct against his stepdaughter. During his
arrest, Plaintiff was not given a Miranda warning and was
forced to provide a DNA sample. He was then transferred to
the county jail where he was refused medication for his
diabetes, and he had to use his credit cards to make bail.
denies the charges brought against him. On December 3, 2013,
a preliminary hearing was held during which the victim
changed her original statement. The three “court
officers” did not question the victim about this
changed testimony. When Plaintiff asked his attorney why they
had not yet gone to trial, the attorney told Plaintiff that
he waived his right to a speedy trial. Plaintiff claims he
did not know he had waived this right.
September 2, 2014, a trial was held resulting in a mistrial,
and a second trial was then scheduled for May 15, 2015.
Plaintiff did not believe his attorney had his best interest
at heart and sought to remove him. Plaintiff ultimately plead
No Contest and was assessed a $250 fine.
result of the charges brought against him and the delayed
criminal proceedings, Plaintiff experienced emotional stress,
he lost 70 pounds, and his relationship with his wife and
claims his Fifth Amendment rights were violated when he was
forced to evacuate his home; his Eighth Amendment rights were
violated by the continued postponement of his trial; and his
Fourteenth Amendment rights were violated because he was not