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Humes v. Sacramento County

United States District Court, E.D. California

May 10, 2018

JON HUMES, Plaintiff,
v.
SACRAMENTO COUNTY, et al., Defendants.

          ORDER and FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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).

         II. In Forma Pauperis Application

         Plaintiff 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 without prejudice.

         Plaintiff 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).

         III. Legal Standards for Screening Prisoner Civil Rights Complaint

         The 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).

         Rule 8 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         A pro 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. 1987).

         IV. Screening of Plaintiff's First Amended Complaint

         A. Plaintiff's Allegations

         The 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 (1958).”

         The 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 ...


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