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Foster v. Division Of Adult Parole Operations

United States District Court, E.D. California

October 23, 2019

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

          FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT SECOND AMENDED COMPLAINT BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF NO. 13) OBJECTIONS DUE WITHIN THIRTY DAYS

         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.) On August 28, 2019, Plaintiff's first amended complaint was screened and it was found that Plaintiff had failed to state a cognizable claim. (ECF No. 8.) Plaintiff was granted one final opportunity to file a second amended complaint within thirty days. (Id.) After Plaintiff did not file an amended complaint in compliance with the August 28, 2019 screening order, findings and recommendations issued on October 3, 2019. (ECF No. 10.) The findings and recommendations recommending dismissing this action for Plaintiff's failure to comply, failure to prosecute, and failure to state a claim. (Id.) Plaintiff filed objections on October 15, 2019, and sought an extension of time to file his second amended complaint. (ECF No. 11.) On October 17, 2019, the findings and recommendations was vacated and Plaintiff was ordered to file a second amended complaint by November 1, 2019. (ECF No. 12.) Currently before the Court is Plaintiff's second amended complaint, filed October 18, 2019. (ECF No. 13.)

         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 (“CDCR”) and is housed at Salinas Valley State Prison. Plaintiff brings this action against Parole Agent L. Wallace for the failure to release a parole hold while he was a pretrial detainee being held at the Fresno County Jail on new charges.

         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; ECF No. 13 at 5.) The matter was set for a hearing at the request of Parole Agent Jorge Castro. (ECF No. 7 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; ECF No. 13 at 5-6.) 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. (ECF No. 7 at 20-21; ECF No. 13 at 6.) The state court ordered that the parole hold be released. (ECF No. 13 at 6.) Defendant Wallace did not order the parole hold released although ordered to do so. (Id.)

         From October 27, 2017 to December 17, 2017, Plaintiff attempted to bail out of jail and was unable to do so due to the parole hold. (Id.) On December 17, 2017, Plaintiff informed the state court that the parole hold had not been removed and he was unable to be released on bail. (Id.) 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., ECF No. 7 at 40.) On January 4, 2018, a copy of the Court's December 22, 2017 order was mailed to all parties. (Id.) On January 17, 2018, the maximum date upon which Plaintiff could he detained on the parole hold was reached. (ECF No. 13 at 6.)

         On March 16, 2018, Plaintiff moved for an in-patient program in No. F17906222. (ECF No. 7 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 ...


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