United States District Court, E.D. California
ORDER GRANTING PLAINTIFF LEAVE TO FILE A SECOND
AMENDED COMPLAINT (ECF NO. 7) THIRTY DAY DEADLINE
Foster Jr. (“Plaintiff”), proceeding pro
se and in forma pauperis, filed this civil
rights action pursuant to 42 U.S.C. § 1983. On July 29,
2019, a screening order was filed finding that Plaintiff had
failed to state a cognizable claim and granting Plaintiff
leave to file an amended complaint. (ECF No. 5.) Currently
before the Court is Plaintiff's first amended complaint,
filed August 23, 2019. (ECF No. 7.)
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 on
which relief may be granted, ” or that “seek
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
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)).
Moreover, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of Plaintiff's
rights. Jones v. Williams, 297 F.3d 930, 934 (9th
proceeding pro se in civil rights actions are entitled to
have their pleadings liberally construed and to have any
doubt resolved in their favor. Wilhelm v. Rotman,
680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To
survive screening, Plaintiff's claims must be facially
plausible, which requires sufficient factual detail to allow
the Court to reasonably infer that each named defendant is
liable for the misconduct alleged. Iqbal, 556 U.S.
at 678-79; Moss v. U.S. Secret Service, 572 F.3d
962, 969 (9th Cir. 2009). The “sheer possibility that a
defendant has acted unlawfully” is not sufficient, and
“facts that are ‘merely consistent with' a
defendant's liability” falls short of satisfying
the plausibility standard. Iqbal, 556 U.S. at 678;
Moss, 572 F.3d at 969.
Court accepts Plaintiff's allegations in the complaint as
true only for the purpose of the sua sponte
screening requirement under 28 U.S.C. § 1915.
is currently in the custody of the California Department of
Corrections and Rehabilitation and is housed at Wasco State
Prison. While somewhat unclear from the current complaint,
Plaintiff is challenging the failure to release his parole
hold while he was a pretrial detainee being held at the
Fresno County Jail on new charges. The Court attempts to
piece together what occurred based on the allegations in the
first amended complaint and the documents attached.
was arrested for driving under the influence on October 9,
2017. (ECF No. 7 at 16.) A parole violation was filed in No.
P17900013-2 and Plaintiff's parole was revoked on October
17, 2017. (Id. at 34-36.) The matter was set for a
hearing at the request of Parole Agent Jorge Castro.
(Id. at 37.) On October 20, 2017, Plaintiff denied
the parole violation and his supervision was formally
revoked. (Id. at 38.) The parole violation hearing
was continued pending new charges being filed. (Id.)
Plaintiff was remanded into custody with no bail set.
October 24, 2017 a complaint was filed charging Plaintiff
with felony charges of driving under the influence with a
third strike alleged and a misdemeanor of driving while his
license was suspended or revoked in State of California
v. Floyd Foster Jr., No. F17906222. (Id. at
15-16, 20.) On October 27, 2017, Parole Officer Wallace
withdrew the parole violation and Plaintiff was released on
parole. (Id. at 10-11, 39.) On this same date,
Plaintiff was arraigned on the charges in No. F17906222 and
was remanded into custody with bail set at $289, 500.00.
(Id. at 20-21.) Plaintiff's preliminary hearing
was continued at the request of defense counsel.
(Id. at 23-26.)
December 22, 2017, the minute order dated October 27, 2017
issued in No. P17900013-2 releasing the parole hold was
resubmitted to the jail. (Id. at 40.) On January 4,
2018, a copy of the Court's December 22, 2017 order was
mailed to Plaintiff. (Id.)
March 16, 2018, Plaintiff moved for an in-patient program in
No. F17906222. (Id. at 26.) On March 21, 2018,
Plaintiff was ordered to remain in custody. (Id. at
April 11, 2018, a motion for bail reduction was denied
without prejudice in No. F17906222. (Id. at 27.) On
June 20, 2018, Plaintiff's counsel requested that the
preliminary hearing be set. (Id. at 29.) The
preliminary hearing was continued several times at the
request of the People and Plaintiff. (Id. at 30-31.)
On June 25, 2018, Plaintiff's bail was reduced to $265,
500.00 (Id. at 31.) The parole hold was dropped
sometime prior to July 17, 2018. (Id. at 13.)
August 1, 2018, Plaintiff's motion to suppress evidence
was denied, the preliminary hearing was held, and Plaintiff
was held to answer on the complaint. (Id. at 31-32.)
pled to the charge of driving on a suspended license on April
Smart Search, search F17906222 (last visited August 27,
2019.) A jury trial commenced on April 26, 2019, and
Plaintiff was found guilty of driving under the influence and
he was sentenced on July 22, 2019. Id.; (ECF No. 7
brings this action against the Fresno County Sheriff's
Department contending that it received notice that his parole
hold was removed and the notice was ignored.
brings the action against the Division of Adult Parole
Operations (“DAPO”) because he was in their
jurisdiction at the time that his civil rights were violated.
also brings this action against Defendants Castro and
Wallace. Defendant Castro was the officer of the day and his
job was to handle the daily activities of a parolee when the
parolee's assigned parole agent was absent. Defendant
Castro was his “acting parole agent” at the time
of the violation of Plaintiff's rights. Plaintiff placed
a copy in the United States mail and a second copy of the
Court's order to remove the parole hold addressed to
Defendant Castro. Plaintiff personally contacted Defendant
Castro by phone requesting further action. Defendant Castro
ignored Plaintiff's request and made no further
Wallace is the daily parole agent in Judge Gaab's
courtroom where probation violations are heard. She sits next
to the prosecutor and has her own computer station. She heard
the order to remove the parole hold and reinstate parole. She
was to remove the parole hold and reinstate parole but did
not do so. Defendant Wallace failed to release other inmates
at the Fresno County Jail. Plaintiff contends that Defendant
Wallace had notice of the parole hold and that he was
entitled to relief. On July 3, 2018, Defendant Wallace's
apology added insult to injury. Defendant Wallace knew that
as long as the parole hold was in place, Plaintiff was not
able to obtain his freedom. Plaintiff had been granted bail
and had the right to make bail. Plaintiff has not requested
any relief in the first amended complaint.