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Foster v. Division of Adult Parole Operations

United States District Court, E.D. California

August 27, 2019

LOYD FOSTER JR., Plaintiff,
v.
DIVISION OF ADULT PAROLE OPERATIONS, et al., Defendants.

          ORDER GRANTING PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT (ECF NO. 7) THIRTY DAY DEADLINE

         Floyd 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.)

         I. SCREENING REQUIREMENT

         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 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).

         A 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 Cir. 2002).

         Prisoners 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.

         II. COMPLAINT ALLEGATIONS

         The 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.

         Plaintiff 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.

         Plaintiff was arrested for driving under the influence on October 9, 2017. (ECF No. 7 at 16.[1]) 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. (Id.)

         On 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.)

         On 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.)

         On 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 26-27.)

         On 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.)

         On 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.)

         Plaintiff pled to the charge of driving on a suspended license on April 25, 2019.[2] https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/WorkspaceMode?p=0, 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 at 18).

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 investigation.

         Defendant 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.

         III. ...


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