United States District Court, E.D. California
ORDER and FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
is a Sacramento County Jail inmate proceeding pro se with a
civil rights complaint filed pursuant to 42 U.S.C. §
1983, a request for leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915, and two motions for
financial assistance. This action is referred to the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the
reasons that follow, plaintiff's request to proceed in
forma pauperis is granted; his motions for financial
assistance are denied; and the undersigned recommends that
this action be dismissed without leave to amend, and that
this dismissal count as a “strike” under 28
U.S.C. § 1915(g).
In Forma Pauperis Application
has submitted his affidavit and prison trust account
statement that make the showing required by 28 U.S.C. §
1915(a). Accordingly, plaintiff's request to proceed in
forma pauperis, ECF No. 4, will be granted. Plaintiff's
earlier request, ECF No. 2, was incomplete and will be denied
must pay the statutory filing fee of $350.00 for this action.
See 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's trust account.
These payments will be forwarded by the appropriate agency to
the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
Legal Standards for Screening Prisoner Civil Rights
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b)(1), (2). A claim is legally frivolous when it lacks
an arguable basis either in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
of the Federal Rules of Civil Procedure “requires only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief, ' in order to
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly at 555). To survive dismissal for failure to
state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.'”
Iqbal at 678 (quoting Twombly at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly at
556). “Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to
relief.”'” Id. (quoting
Twombly at 557).
se litigant is entitled to notice of the deficiencies in the
complaint and an opportunity to amend, unless the
complaint's deficiencies cannot be cured by amendment.
See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.
Screening of Plaintiff's First Amended Complaint
complaint alleges a Fourteenth Amendment Due Process claim
against Sacramento County District Attorney Anne Marie
Shubert, on the ground that plaintiff was arrested, continues
to be detained, and faces trial based on “expired
crimes that never happened to begin with.” ECF No. 1 at
3. Plaintiff alleges that he was arrested on February 21,
2018, for violation of California Penal Code (PC) § 288
(lewd or lascivious acts upon a child under 14 years of age)
that allegedly occurred on January 1, 2005, and “other
PC 288's that occurred as late as 1-1-13.”
Id. Plaintiff appears to concede that PC §
803(g) “would make them all prosecutable”
provided the “case” is “certified in
Superior Court within one year of the report to law
enforcement or a responsible agency, ” including Child
Protective Services (CPS), citing PC § 803(f) (“a
criminal complaint may be filed within one year of the date
of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under 18
years of age, was the victim of a crime described in Section
. . . 288”). Id. Plaintiff alleges that
“[t]his case was reported to CPS on 12-17-2015. That
gave them until 12-17-2016 to certify a case in Superior
Court. They didn't even arrest me until 2-21-17!”
Id. Plaintiff contends that the Sacramento County
District Attorney failed to act with “due diligence to
realize the alleged crimes were expired!” Id.
Now, asserts plaintiff, he improperly remains detained
“with real child rapists and murderers, ”
awaiting trial on “expired” crimes. Plaintiff
seeks, inter alia, $100, 000, 000.00 in damages, and
“an injunction ordering Sacramento City and County to
obey and adhere [to] Kelly v. San Francisco Municipal
Court and the City and County of San Francisco
case plaintiff references appears to be Kelly v.
Municipal Court of City & County of San Francisco,
160 Cal.App. 2d 38, 44 (1958), in which the First District
California Court of Appeal held, sixty years ago, that the
sex offender registration requirement under PC § 290 was
“criminal in character” and imposed a penalty
that would expire upon the defendant's fulfillment of all
conditions of probation. However, the California courts have
recognized that “Kelly is no longer good
law.” People v. Hamdon, 225 Cal.App.4th 1065,
1073 (2014). Specifically, “the subsequent enactment of
section 290.5 evinces a legislative determination that the
need for registration continues until the registrant obtains
a certificate of rehabilitation or pardon.”
Id. “Indeed the Legislature enacted section
290.1 with Kelly in mind, specifically intending
thereby to correct a perceived flaw in ...