Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Mirelez

United States District Court, E.D. California

March 21, 2017

JAMES E. SMITH, Plaintiff,
v.
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.

         Plaintiff 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.[1] (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.

         I. Screening Requirement

         The in 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).

         II. Pleading Standard

         A 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. at 677-78.

         III. Plaintiff's Allegations

         Plaintiff brings this action against Defendants Officer Rudy Mirelez, Devan M. Portillo, Prosecutor Eugene Action, Natalie N. Gilbertson, Steve Dahlem, and the Mariposa County Council.

         Plaintiff's allegations may be fairly summarized as follows:

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         As a 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 stepdaughter suffered.

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.