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Malfitano v. Hewitt

United States District Court, N.D. California

June 1, 2017

JOSEPH C. MALFITANO, Plaintiff,
v.
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.

         INTRODUCTION

         Plaintiff 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.

         Because Plaintiff continues to proceed in forma pauperis, the Court screens the TAC anew. For the reasons stated below, the Court DISMISSES the TAC WITH PREJUDICE.

         BACKGROUND

         A. Prior Screening Orders

         In each 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 Order.

         In its 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.

         In its Third Screening Order, the Court found the following:

         (1) 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.

         (2) To 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.

         (3) 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.

         (4) The Court again found that Plaintiff's allegations that he filed a timely CTCA claim were deficient.

         B. The Third Amended Complaint

         In the TAC, Plaintiff alleges:

         (1) “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 Pitchess motion).

         (2) 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. ¶ 16(a).

         (3) The 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).

         (4) The 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. ¶ 16(c).

         (5) 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.)

         (6) On 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 ...


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