United States District Court, N.D. California
JOSEPH C. MALFITANO, Plaintiff,
BRIAN HEWITT, et al., Defendants.
ORDER SCREENING THIRD AMENDED COMPLAINT; DISMISSING
ACTION WITH PREJUDICE RE: DKT. NO. 18
MARIA-ELENA JAMES United States Magistrate Judge.
Joseph Malfitano (“Plaintiff”) filed his original
Complaint on September 16, 2016. See Compl., Dkt.
No. 1. As Plaintiff was proceeding in forma pauperis, the
Court screened the Complaint, as well as the subsequent First
and Second Amended Complaints, pursuant to 28 U.S.C. §
1915(e)(2) and dismissed each with leave to amend.
See First Screening Order, Dkt. No. 7; Second
Screening Order, Dkt. No. 11; Third Screening Order, Dkt. No.
14. Plaintiff has filed a Third Amended Complaint
(“TAC”). See Dkt. No. 18.
Plaintiff continues to proceed in forma pauperis, the Court
screens the TAC anew. For the reasons stated below, the Court
DISMISSES the TAC WITH
Prior Screening Orders
of his pleadings, Plaintiff has alleged that Antioch Police
Department (“APD”) officers raided his home,
arrested him, and placed him on a no-bail hold that caused
him to be held in jail for six days, and that all charges
against him were eventually dismissed. Plaintiff also has
alleged that defendant Detective Hewitt pursued a
relationship with Plaintiff's wife while Hewitt was
investigating a case against Plaintiff, and that Hewitt
removed evidence-including a phone and a Macy's gift
card-from the APD and gave it to Plaintiff's wife at her
request. In its First, Second, and Third Screening Orders,
the Court held the Complaints did not adequately explain the
events giving rise to Plaintiff's claims, and did not
allege Plaintiff had complied with the requirements of the
California Tort Claims Act (“CTCA”), Cal.
Gov't Code §§ 910, et seq. See First
Screening Order; Second Screening Order; Third Screening
Second Screening Order, the Court explained that
“Plaintiff contends alternatively that Detective Hewitt
was trying to frame Plaintiff and/or was trying to visit
Plaintiff's wife, but he does not allege Detective Hewitt
arrested him, caused the District Attorney to attempt to
revoke his probation, or filed a false police report
regarding the June 4, 2015 incident. Plaintiff's
allegations fail to clearly articulate how Detective Hewitt
violated Plaintiff's rights.” Id. at 5-6.
The Court noted the FAC did not address either Defendants
Chief of Police Alan Cantando or the City of Antioch
(“Antioch”). Id. at 6. Finally, the
Court found that, once again, it could not ascertain when
Plaintiff's claims accrued and whether he complied with
the CTCA. Id. at 7.
Third Screening Order, the Court found the following:
Plaintiff failed to allege that Hewitt was the or part of the
cause of the June 2015 raid at his home, when the raid
appeared to form the basis for Plaintiff's Section 1983
claims; and “[i]f Plaintiff's Section 1983 claim is
based on the removal of a Macy's gift card from evidence
by Hewitt or Hewitt's inappropriate contact with
Plaintiff's wife, Plaintiff does not appear to allege
those actions violate his constitutional rights.” Third
Screening Order at 6-7.
the extent Plaintiff's Section 1983 claim was based on
Cantando's failure to discipline Hewitt for his allegedly
inappropriate contact with Plaintiff's wife or with
respect to the removal of the Macy's gift card from
evidence, Plaintiff failed to allege that Cantando knew or
should have known of Hewitt's misconduct, or that the
failure to discipline Hewitt for this conduct amounts to a
violation of Plaintiff's constitutional rights. The Court
noted that “[i]f his claim against Cantando is based on
Cantando's failure to discipline Doe Defendants for other
violations, Plaintiff fails to plead those other violations
with particularity, and fails to plead that Cantando's
failure to discipline the Doe Defendants constitutes a
constitutional violation.” Id. at 7.
None of the policies or practices Plaintiff alleged in the
SAC to plead his Section 1983 claim against Antioch pertain
to Hewitt's inappropriate relationship with
Plaintiff's wife or removal of evidence; as such,
Plaintiff failed to allege Antioch's policy or practice
was the moving force behind Hewitt's violation of
Plaintiff's constitutional rights. Id. Plaintiff
also failed to plead sufficient facts to show that any
Defendant violated his constitutional rights during the June
2015 raid in ways that relate to the policies he identified
in the SAC.
Court again found that Plaintiff's allegations that he
filed a timely CTCA claim were deficient.
The Third Amended Complaint
TAC, Plaintiff alleges:
“Following a Pitches[s] Motion, the
People dismissed the criminal action, i.e., a probation
revocation proceedings, against Malfitano on February 26,
2016.” TAC ¶ 3; see also id. at ¶ 37
(the district attorney would dismiss the proceedings upon a
APD, “a department of Antioch under the command of
Chief Cantando, maintains a policy of not adequately
training, supervising, monitoring or disciplining its
officers or its evidence lockers such that Detective Hewitt
and who knows countless others are able to freely remove
booked evidence for one's own personal use and gain
without a single adverse consequence.” Id.
APD “maintains a policy of not adequately training,
supervising, monitoring or disciplining its officers or its
official report writing such that Detective Hewitt and
countless others are able to freely write reports to deceive
and mislead the district attorney to level false charges for
one's own personal use and gain without a single adverse
consequence.” Id. ¶ 16(b).
APD “protects its lack of policy” by dismissing
charges against wrongly accused defendants only before they
might be compelled to disclose its officers' wrongdoing
or disclose its inadequate policies that lead to violations
of constitutional rights of countless others. Id.
Plaintiff placed an “SMS Tracker” on the phone
used by his wife, Sandy Towasha, without Towasha's
knowledge. Id. ¶ 18. (Plaintiff alleges he paid
for the phone, but that Towasha used it.)
June 4, 2016, Plaintiff and Towasha got into a “really
loud and ugly” argument. Id. ¶ 20.
Plaintiff left, taking Towasha's phone with him.
Id. While searching for Towasha's car,
unidentified APD officers contacted Towasha around ...